Monthly Archives: September 2017

Pay or be arrested !!

Husbands are regularly ordered to pay interim maintenance, lump-sum compensation under DV etc etc, as part of lower court proceedings. Since many can’t pay and many haven’t done anything wrong, they try to appeal. Even before they can appeal and be heard against such lower court orders (it takes years to reach HC), execution proceedings are started at lower court.
Husbands are forced to pay as per lower court orders, else Japti (seizure of property) and IF the husband is poor / unemployed etc or can’t pay, husband’s arrest is ordered.
Alas, when husbands seek stay of arrest (arising from execution), husbands are asked to pay 50% of all outstanding AND arrears which literally can kill some people.
Here is one such sad order
Names of parties etc, removed (though this MAY be publically available on court website)

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High Court of Karnataka

Daily Orders of the Case Number: MFA ____/20__ for the date of order //2017

Honble Justice _____________________

__/___/2017

Order in MFA ____/20__

It is stated by the learned counsel for the appellant that, arrest warrant has been issued in the execution of the Decree of the Family Court. Learned counsel for the respondent does not dispute the said position.

Hence, put up on 11.10.2017.

By ad interim order, it is directed that, there shall be stay against the execution of the warrant already issued by the Family Court on condition that the appellant deposits the amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) with the Family Court on or before 27.9.2017 and further deposits Rs.1,00,000/- (Rupees one lakh only) on or before 27.10.2017.

Both the amounts shall be deposited before the Family Court.

On the amount so deposited, the respondent shall be at liberty to withdraw the same.

Matter shall be considered for further amount to be deposited or not on the next date of hearing.

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Guidelines for registration of FIR in the state of Tamil Nadu

Guidelines regarding registration of FIR

As a sequel to the aforesaid discussion, the following directions are issued:

i A petition under Section 482, Cr.P.C. for a direction to register an FIR on the complaint of the petitioner circumventing the time table prescribed by the Supreme Court in Lalita Kumari-IV and V is not maintainable.

ii This Court directs all the Station House Officers in the State of Tamil Nadu and Union Territory of Puducherry to receive any complaint relating to the commission of cognizable offence by a common man and if the Station House Officer wants to conduct a preliminary enquiry, he shall immediately issue a CSR receipt (in case of Tamil Nadu) or issue a separate receipt (in case of Union Territory of Puducherry) to the complainant and after making the necessary entries in the Station General Diary, as directed by the Supreme Court in Lalita Kumari-IV and V, conduct preliminary enquiry. In Lalita Kumari-IV, the Supreme Court has directed that after conducting preliminary enquiry, if the police come to the conclusion that no FIR need be registered, a duty is cast upon the police to furnish a copy of the closure report to the complainant. After getting the closure report, it is open to the complainant to file a petition under Section 156(3) Cr.P.C. or private complaint under Section 190 read with Section 200 Cr.P.C. disclosing the facts and persuading the Magistrate to take cognizance of the offence. Such a petition/private complaint should disclose the closure report of the police. After taking cognizance of the offence, the Magistrate can also order police investigation under Section 202, Cr.P.C. to a limited extent. The closure report cannot be subject to judicial review under Section 482, Cr.P.C.

iii If the Station House Officer refuses to receive the complaint, the complainant shall send the complaint together with a covering letter to the Superintendent of Police/Deputy Commissioner of Police by Registered Post with Acknowledgment Due under Section 154(3), Cr.P.C.

iv If there is inaction on the part of the Station House Officer and the Superintendent of Police, the complainant is at liberty to move the jurisdictional Magistrate under Section 156(3) Cr.P.C.

v The complaint shall be given to the Magistrate either in Tamil or in English in the form of a representation in first person addressed directly to the Magistrate.

vi The complaint shall be accompanied by an affidavit as mandated by the Supreme Court in Priyanka Srivastava.

vii On receipt of the complaint, the Magistrate shall pass orders thereon within 15 days, either issuing directions or dismissing the petition.

viii If the Magistrate decides to order police investigation, he should pass a judicial order to that effect in the record sheet.

ix A copy of the order, together with original complaint and copy of the affidavit, shall be forwarded by the Magistrate to the jurisdictional police officer for investigation.

x If the police officer does not register FIR within a period of one week from the date of receipt of the Magistrate’s order, the Magistrate shall initiate prosecution against him under Section 21 read with Section 44 of the District Police Act before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may be.

xi If no FIR is registered by the police within one week from the date of receipt of a copy of the order of the Magistrate under Section 156(3), Cr.P.C., the complainant can approach this Court under Section 482, Cr.P.C.

xii If the police fail to complete the preliminary enquiry within six weeks as mandated by the Supreme Court in Lalita Kumari-V, the complainant can approach this Court under Article 144 read with Section 482, Cr.P.C.

xiii The aforesaid petition under Article 144 read with Section 482, Cr.P.C. must be accompanied by an affidavit sworn to by the complainant with satisfactory materials to show that the police have not completed the preliminary enquiry within six weeks, as mandated by the Supreme Court in Lalita Kumari-V. In such a petition, this Court will not read the complaint, but, issue directions to the police to register an FIR on the complaint for the very failure of the police to follow the mandates of Lalita Kumari-IV and V. The Registry of this Court shall not number the petition filed under Section 482, Cr.P.C. seeking a direction to register an FIR unless it is accompanied by an affidavit containing the above details.

xiv In suitable cases, this Court shall also direct disciplinary action to be taken against the police officer for the violation of the mandates of Lalita Kumari – IV and V.

xv If the police officer fails to register the FIR pursuant to the directions of this Court, he will be liable for contempt of Court, besides facing disciplinary action.

xvi The aggrieved party can also approach the local Legal Services Authority and the Authority shall take immediate steps to ensure that an FIR is registered or CSR receipt issued to the complainant.

xvii Every police station shall have a board giving the name and telephone number of the local Legal Services Authority.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 27.09.2016

CORAM: THE HON’BLE MR. JUSTICE P.N. PRAKASH Crl.O.P. Nos.19197, 19198, 19343 and 19359 to 19363 of 2016

Sugesan Transport Pvt. Ltd.

vs.

Assistant Commissioner of Police

These Criminal Original Petitions are filed seeking a direction to the respondents to register the petitioners’ complaints dated 17.08.2016.

2 Every Judge who is assigned the Section 482, Cr.P.C. portfolio has to perforce undergo an unenviable task of dealing with petitions praying for a direction to the police to register an FIR on the complaint that is said to have been given by the petitioners. Each Judge would devise his or her own mechanism to deal with the spate of such petitions which will be in hundreds week after week.

3 When I assumed this portfolio, I too had to deal with these petitions and the method I evolved was to read the complaints, hear the counsel for the petitioners and the Additional Public Prosecutor and pass the following orders, depending upon the facts obtaining in each case:

i Direction is given to the respondent police to register the complaint, if cognizable offence is made out and take action in accordance with the law laid down by the Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh and Others-IV [(2014) 2 SCC 1] (for brevity Lalita Kumari-IV);

ii If the dispute essentially appears to be civil in nature or involves money transaction, the case is closed with liberty to the petitioner to work out his remedy in the manner known to law;

iii In the event there being a counter case, the petition is closed directing the respondent police to enquire into the main case and the counter case;

iv On the basis of the petitioner’s complaint, if petition enquiry is conducted and closed, the petition is closed by handing over a copy of the closure report to the counsel for the petitioner across the Bar, with liberty to the petitioner to work out his remedy in the manner known to law;

v In case the petition is sent by post, the petition is closed by directing the petitioner to appear in person before the respondent police with a further direction to the respondent police to enquire into the complaint and take action thereon in accordance with law, if it discloses the commission of a cognizable offence or drop action, if found otherwise; and

vi If FIR has already been registered, the petition will be closed by recording the factum of registration of the FIR.

4 While things were passing thus, on 06.09.2016, the present petitions, viz., Crl.O.P. Nos.19197, 19198, 19343 and 19359 to 19363 of 2016 filed for a similar relief, came up before me for admission and Mr.Nithyaesh Natraj, learned counsel for the petitioners fairly submitted that a petition under Section 482, Cr.P.C. for such a direction is not maintainable, unless the petitioner has exhausted the alternative remedies available under Section 154(1), 154(3) and 156(3) Cr.P.C., in the light of the law laid down by the Supreme Court in Sakiri Vasu v. State of Uttar Pradesh and others [(2008) 2 SCC 409] (for brevity Sakiri Vasu ).

5 In view of the aforesaid submission made by Mr. Nithyaesh Natraj, this Court passed the following order:

2 A reading of the above judgment, clearly shows that a petition filed under 482 of Cr.P.C. for a direction to the respondent police to register an FIR is not maintainable, unless the party exhausts all the alternative remedies available under the Cr.P.C. However, over a period of time, this Court has been entertaining such petitions, on account of which, this practice has come to stay and it requires a careful relook in the light of the judgment of the Supreme Court in Sakiri Vasu’s case (supra) and in view of the huge number of cases that are being filed for this relief, thereby, much time of the Court gets expended in deciding these petitions. This Court does not immediately want to depart from this procedure without giving an opportunity to the Bar to place its views.

3 Under such circumstances, the Registry is directed to notify the following proposition in the cause list enabling the members of the Bar to address this Court on 12.09.2016.

In the light of the law laid down by the Supreme Court in Sakiri Vasu’s case (supra), can a petition under Section 482 Cr.P.C. be maintained for a direction to the respondent-police to register an FIR on the complaint given by a party without the party first exhausting the alternative remedies available under the Code?

4 The Bar members are requested to make their submissions on this issue on 12.09.2016.

Post on 12.09.2016.

6 In pursuance of the aforesaid order, on 12.09.2016, members of the Bar appeared in larger numbers and placed their submissions. On the directions of Mr.R.Rajarathinam, learned State Public Prosecutor, senior police officers were present in the Court and they were accorded a seat at the aisle enabling them to make note of the submissions of the Bar so that they can issue appropriate instructions to their subordinate officers.

7 During the course of hearing, this Court framed three additional questions for the consideration of the members of the Bar.

Does this Court have the power to step into the shoes of the Station House Officer, read the complaint and give a direction as prayed for?

In the event of this Court dismissing the petition, will the petitioner still have the remedy to go under Section 154(1), 154(3) and 156 (3) Cr.P.C.?

In the event of this Court coming to a positive conclusion in favour of the petitioner and gives a direction to the police to register an FIR, can this Court entertain an application filed by the accused seeking quashment of the same FIR?

8 The arguments of learned Senior Counsel, viz., M/s.V.T.Gopalan, S. Ashok Kumar, Arvindh Pandian and Gomathinayagam, other learned counsel, viz., M/s.R.C.Paul Kanakaraj, K.Selvaraj, N.Vijayaraghavan, R.Sankarasubbu, V.Raghavachari, T.Mohan, Nalini, Sesubalan Rajan and M. Venkadeshan and Traffic Ramasamy Party-in-person, were in favour of retaining the present procedure.

9 Contra submissions were made by M/s.I.Subramaniam and A.Ramesh, learned Senior Counsel and Mr. Anand Venkatesh and Mr.R.Neelakantan, learned counsel. Mr. N. Jothi, advocate, filed written submissions after the case was reserved for orders.

10 The submissions of Mr.R.Rajarathinam, learned State Public Prosecutor were more like that of an Amicus Curiae.

11 This Court does not intend to repeat the submissions and judgments relied upon at the Bar individually and make this judgment prolix and verbose. Instead, suffice it to crystallise the propositions propounded by them. The propositions propounded by one section of the Bar for the continuance of the present procedure, are as under:

i When the common man goes to the police station, he is treated with disrespect unless he is influential and wealthy. Police do not even touch the complaint with a barge pole. For example, a complaint for loss of a vehicle is not accepted on the premise that the vehicle must have been seized by the Financier. By the time, the police is convinced that the vehicle has been really lost and FIR registered, the Insurance Companies successfully repudiate the claim on the ground of delay in lodging the complaint, resulting in serious prejudice to an honest victim. This example is one of many such genuine grievances;

ii It is the police who exhort the complainant to go to the High Court and get some direction to deal with the complaint.

iii Why should the apple cart be disturbed now when everyone is happy with the stereotype orders that are routinely passed by this Court?

iv If it is held that only after exhaustion of alternative remedies, a petition under Section 482,Cr.P.C. seeking registration of FIR is maintainable, the practice of junior advocates will be adversely affected.

v Protection money has to be paid to Bar strongmen in the Magistrate Court if a counsel from another Bar were to go there for filing a petition under Section 156(3) Cr.P.C.

vi Magistrates do not pass orders under Section 156(3), Cr.P.C. immediately and keep the petition pending for months on end.

vii Even if an order under Section 156(3) is passed, the police pay scant respect to the order.

viii The mere fact that a very large number of such petitions are being filed can be no reason to shut the doors of the Court.

ix Having accepted the onerous responsibility of a Judgeship in the High Court, a Judge cannot abdicate his responsibilities and say that he or she will not look into the complaint and take a decision.

x The fact that more number of petitions are being filed, is, by itself, a proof to show that people have not lost faith in the judiciary.

xi If an FIR registered on the directions of the High Court u/s 482 Cr.P.C. is subsequently challenged by the accused by an application for quashing under Section 482, Cr.P.C., the Judge who had issued the earlier direction should recuse himself and post the quash petition before some other Judge.

xii The judgment of the Supreme Court in Sakiri Vasu has to be declared as per incuriam.

xiii Existence of alternative remedies is not a bar to the power of the Court to entertain such petitions filed under Section 482, Cr.P.C.

xiv The judgment of the Supreme Court in Sakiri Vasu has become irrelevant pursuant to Lalita Kumari-I to V.

xv The acceptance of the judgment of the Supreme Court in Sakiri Vasu is tantamount to changing the contours of Section 482, Cr.P.C.

xvi When a victim has a fundamental right under Article 21 of the Constitution of India for investigation of an offence committed against him, the Court cannot refuse to entertain his petition under Section 482, Cr.P.C.

xvii Section 154, Cr.P.C. is the only Section which speaks about the registration of an FIR and Section 156(3) deals with investigation of a case and therefore, it is not an alternative remedy to Section 154, ibid.

xviii This Court cannot define what is an ordinary case and what is an extraordinary case for the exercise of powers under Section 482, Cr.P.C. The Registry cannot be permitted to decide this aspect.

xix Article 144 of the Constitution of India casts a duty on the High Court to act in aid of the Supreme Court.

xx In view of the judgment in King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 (for brevity Khwaja Nazir Ahmad ), the directions of the Supreme Court in Sakiri Vasu that the Magistrate can monitor the investigation, is not sustainable.

12 The submissions of the learned counsel of the opposite school of thought are as under:

i The Court cannot arrogate to itself, the power of the Station House Officer and take a decision one way or the other.

ii Section 482, Cr.P.C. can be pressed into service only when there are proceedings before an inferior Court and not in a vacuum.

iii The judgment of the Supreme Court in Sakiri Vasu has been reiterated recently in Sudhir Bhaskarrao Tambe v.Hemant Yashwant Dhage and others [(2016) 6 SCC 277] (for brevity Sudhir Bhaskarrao Tambe ) and therefore, this Court cannot declare Sakiri Vasu as per incuriam.

iv The power conferred under Section 482, Cr.P.C. is an extraordinary one and the same cannot be invoked when there are specific powers in the Code for dealing with a situation.

v The judgment of the Supreme Court in Sakiri Vasu has been affirmed by a Division Bench of this Court in R.Ramachandran v. The Principal Secretary to Government, Home Department, Secretariat, Chennai and 2 others [2011 SCC OnLine Mad 883] (for brevity Ramachandran ) and therefore, this Court cannot refuse to follow the judgment of the Supreme Court in Sakiri Vasu.

13 The submissions of Mr.R.Rajarathinam, learned State Public Prosecutor, in nutshell, are as under:

i Usage of the expression the commission in Section 154 Cr.P.C. has to be given its due emphasis while interpreting the scope of this provision; and

ii The State is ready to strengthen the police system and address the general grievance of the common man that police officers are not entertaining complaints whenever the same are handed over to the Station House Officer.

14 The judgments cited by various learned counsel will be dealt with during the course of the discussion hereafter.

15 It was brought to the notice of this Court that an earlier attempt was made by some Hon’ble Judges of this Court to streamline these petitions in the light of the judgment in Sakiri Vasu, but, for some reason or the other, the influx of such petitions remains unabated.

16 In G.Arokiya Marie v. The Superintendent of Police, Sub Inspector of Police and another [2008-1-LW (Crl.) 484] (for brevity Arokiya Marie ), M. Jeyapaul, J., considered the judgment in Sakiri Vasu and held as follows:

“15. In view of the above, it is held that if the complaint reflects commission of murder, dowry death, attempt to murder where the victim sustained grievous injury, robbery, dacoity, rape and attempt to rape and the Station House Officer refuses to register the complaint of such allegation, then the court will have to necessarily give a direction to the Station House Officer to register the case invoking the jurisdiction under section 482 of the Code of Criminal Procedure.

  1. The aggrieved persons, who complain of the commission of other offences under the Indian Penal Code and the offences under the other Acts, shall resort to sections 154(3), 190 read with 156(3) and 200 of the Indian Penal Code as the case may be. The inherent jurisdiction shall not be invoked in those cases to redress their grievance, for, alternative remedy as detailed above is very much available.”

17 Subsequently, in A.Sowfila v. The Commissioner of Police, Madurai City, The Deputy Commissioner of Police, (Law and Order), Commissioner Office Chamber, Madurai and another [2008-2-LW (Crl.) 843] (for brevity Sowfila ), K.N.Basha,J., diluted the classification of offence propounded by M.Jeyapaul, J., as follows:

“55. I respectfully agree with the view of my learned Brother Judge. In the said order, the learned Brother Judge has classified certain offences which would require immediate inspection of the scene of crime, recovery of material objects and collection of other potential evidence in heinous crimes may be highly warranted such as the commission of the offences of murder, dowry death, attempt to murder wherein the victim sustained grievous injuries, robbery, dacoity, rape and attempt to rape. I am of the considered view that the above categorization and classification of offences are only illustrative and not exhaustive and this Court can very well exercise the power under Section 482 Cr.P.C. in order to secure to ends of justice in respect of other serious and complicated offences depending upon the facts and circumstances of each case and this Court cannot stipulate hard and fast rule by classifying certain offences. There is no frequent grievances in respect of the petitions filed under Section 482 for the serious offence of murder, dowry death, attempt to murder, robbery, dacoity, rape and attempt to rape and only certain exceptional cases police have not taken immediate action. Therefore, this Court cannot brush aside the undisputed fact that even in certain other offences, namely, abetment to commit suicide, forgery, cheating involving land grabbing and other offences of cheating involving huge amounts, misappropriation, kidnapping for ransom and kidnapping minor girls, etc., the police investigation is just and essential to fix and arrest the culprits and thereafter, to recover the articles and to collect the other evidence to prove the case before the Court of law, otherwise it would result in grave miscarriage of justice to the defacto complainants.”

18 In the aforesaid judgment, K.N. Basha, J., allowed one batch of petitions directing the police to register FIRs and dismissed another batch of petitions, with liberty to the petitioners to resort to alternative remedies, as held by the Supreme Court in Sakiri Vasu.

19 In Kathiravan v. State rep. by the Commissioner of Police and the Inspector of Police [MANU/TN/2791/2009], P.R. Shivakumar, J., placing reliance upon the judgments in Sakiri Vasu, Arokiya Marie and Sowfila, held as follows:

“26. The offences listed in Arokiya Marie’s case as heinous crimes regarding which a direction can be issued under Section 482 Cr.P.C to register a case in order to ensure that the evidence of such crime do not get erased by passage of time can be supplemented by other offences of grave nature and the offences exclusively triable by the court of sessions. In such cases also the High Court under Section 482 Cr.P.C shall exercise its discretion under Section 482 Cr.P.C to issue a direction for registration of a case. In other cases, the High Court shall not issue a positive direction to register cases.

  1. In view of the foregoing discussions, it is ordered as follows:-

i ……

ii ……

iii The Station House Officer in each one of the following cases is directed to either to register a case, if he comes to the conclusion that a cognizable case has been made out by the contents of the complaint or to refer the informant to the Magistrate as per Section 155(1) Cr.P.C, if the complaint discloses commission of non-cognizable offence/non-cognizable offences alone and in case the Station House Officer comes to the conclusion that no offence has been made out either cognizable or non-cognizable, he can close the complaint and inform the informant of the fact of such closure.

……. …….

The above said direction shall be complied with within two weeks from the date of receipt of a copy of this order. The learned Government Advocate (Crl.Side) representing the respondents shall be provided with a copy of this order, who in turn, will communicate the same to all the respondents herein.”

20 In the three cases referred to above, the learned Single Judges appear to have gone into the complaints individually and passed orders. It may be relevant to state here that the aforesaid judgments were delivered prior to the judgment of the Constitution Bench of the Supreme Court in Lalita Kumari-IV.

21 Before delving deep into the legal issues, some of the peripheral submissions are worth addressing.

22 It is an incontrovertible fact that some policemen still work with a colonial and fiercely feudalistic mindset. That is why, even after 69 years of independence, we are forced to retain Section 162, Cr.P.C. and Section 25 of the Evidence Act. One can proclaim without fear of contradiction that the common Indian is an embodiment of simplicity, self-contentment and peace. The intriguing aspect is, when he chooses to adorn the khaki uniform, how and why does he change his colour? Perhaps, the system that he enters into is the reason for this metamorphosis. The directions I propose to issue may help in marginally mitigating the travails of the common man.

23 I am in complete agreement with the submission at the Bar that a person who has come forward to accept Judgeship cannot be overawed at the size of his cause list and device specious ways and means to cut short litigations. However, I am unable to persuade myself to agree with the submission that mere filing of large number of such cases itself is indicative of people’s faith in the judiciary. This argument is normally touted by members of the Indian judiciary in law seminars, un-supported by any empirical data and is merely a subjective self-proclamation. On the contrary, the following sagely words of the Supreme Court in Subrata Roy Sahara vs. Union of India and Others [(2014) 8 SCC 470) would speak volumes about the actual state of affairs in this country.

  1. The Indian judicial system is grossly afflicted, with frivolous litigations. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part.

24 It is only the people who know the intricate working of the Indian judicial system, exploit it to their advantage and leave the poor and the needy to fend for themselves outside of the system. An attempt by the noted jurist Fali Nariman by introducing a Private Member’s Bill titled The Judicial Statistics Bill, 2004, in the Rajya Sabha for gathering real judicial statistics hit a cul-de-sac. Therefore, without any empirical data these appeals to rhetoric can lead us only to self deception.

25 The contention that junior lawyers will starve if such petitions are not entertained, is best answered in the words of V.R.Krishna Iyer, J. in his article Indian Justice Perspectives and Problems .

“I shall now address myself to the reforms that the legal profession urgently needs, although Bench reform without Bar reform may baulk Justice process reform. The lawyer is the potential judge and the Bench is pathologically sensitive to the Bar lobby. Moreover, although the court chariot is steered by the ‘robed’ brethren, the lawyers collectively do back-seating driving. Never-the-less, I must leave the lawyer well alone here and reserve my ‘submissions’ to them to a later occasion. Some day, Lawyer Power must strengthen People’s power. That will be their finest hour.”

Should we continue to permit the lawyers’ lobby to do the backseat driving?

26 Though Judges and lawyers are two sides of a coin, yet, they are not members of a secret cartel established to foster each other’s pecuniary interests. We must remember that the entire judicial system is for the benefit of the common man. A young junior, in the initial years of his practice, may make immediate monetary gains, without much effort, by filing petitions under Section 482 and getting orders directing registration of FIRs. However, in the long run, when he is ousted by freshers, he is sure to be in the wilderness. Therefore, in their own interests, young juniors must be trained to begin their practice at the Magisterial level for providing succor to the common man who is exposed to the lowest tier of the judiciary and then graduate upwards slowly and steadily by gaining experience, which is a hard, but the best teacher. When raw and young turks with moral conviction start besieging the Magistrate Courts, the protection-money syndicate that is said to operate there will vanish. If this obnoxious practice of Bar members demanding protection money from their brethren is not nipped in the bud at the Magistrate Court level, sooner or later, the cancer will spread to the Sessions Court and eventually to the High Court as well. This issue, if really is existing, has to be sorted out by the right thinking members of the Bar through the Bar Council which is by the lawyers; for the lawyers; and of the lawyers . The Judges cannot fit anywhere into this scheme of things. When a lawyer makes a complaint to a Magistrate in writing that protection money is being demanded, he should send this complaint with his covering letter to the Bar Council for disciplinary action.

27 The time has now come for the members of the Bar to address these vital issues which are threatening their very survival. This Court will be doing the greatest injustice by pampering junior lawyers instead of providing a level playing field for them in the Trial Courts to display their forensic abilities and increase their erudition.

28 Why should the apple cart be disturbed now when everyone is happy, was one of the refrains. Passing stereotype orders, as aforecited, may keep everyone, including me, happy, for, in the farewell address of the Advocate General, he will recount the total number of cases disposed by me and these disposals will hugely add to the numbers. But, is this quality justice? By my acquiescence, am I not playing a fraud on the system? In numerous FIRs, the police candidly write that the case has been registered on the directions of the High Court by even quoting the number of the Criminal Original Petition. If the actual order passed by this Court is read, in most cases, this Court would have only directed the police to register a case if a cognizable offence is made out. This is misconstrued by the police as a positive direction by the Court to register an FIR. This clearly demonstrates that the police need some order from the High Court to conveniently hide underneath. Can we reduce the solemnity of judicial orders to pander to the needs of the police?

29 Now, coming to the arguments on law, it is quite interesting to note that the directions in Sakiri Vasu had their genesis in a Division Bench judgment of this Court in Venu Srinivasan vs. Krishnamachari, Secy., Divya Desa Parambariya Paadhukaappu Peravai, Trichy-6 and others [2005 (2) MWN (Cr.) 35 (DB)] (Markandey Katju, C.J. and F.M. Ibrahim Kalifulla, J.). The relevant paragraphs of the said judgment read as under:

  1. We are at this stage not going into the merits of the controversy as we are of the opinion that the writ petition itself should have been dismissed on the ground of alternative remedy.
  2. In our opinion, whenever it is alleged that a criminal offence has been committed, the complainant should ordinarily first avail of his remedy of filing an F.I.R. in the police station under Section 154(1) of the Cr.P.C.

  3. Under that provision information relating to the commission of cognizable offence can be given to an officer in charge of the police station. Section 154(3) of the Cr.P.C. states that if an officer in charge of the police station refuses to record the information referred to in sub section (1) of Section 154 of the Cr.P.C. the complainant can send the substance of the information in writing by post to the Superintendent of Police concerned. Thus, if the Station House Officer of a police station refuses to register an FIR, the complainant has an alternative remedy of approaching the Superintendent of Police under Section 154(3) of the Cr.P.C.

  4. If the Station House Officer as well as the Superintendent of Police refuse to register the FIR, or having registered it do not hold a proper investigation, the complainant then has a second alternative remedy by filing an application under Section 156(3) of the Cr.P.C. before the Magistrate concerned. On such complaint the Magistrate can direct registration of the FIR and/or proper investigation into the alleged offence, and he can also monitor the investigation, vide Devarapalli. V. Vs. Narayana, AIR 1976 SC 1672:Madu Bala Vs.Suresh Kumar, AIR 1997 SC 3104, etc.

  5. Apart from that, the complainant has a 3rd alternative remedy by way of filing a private complaint under Section 200 Cr.P.C.

  6. Thus, there are three clear alternative remedies available to the complainant, if he alleges that a crime has been committed, and hence it is not proper for this Court to straightaway entertain a writ petition without insisting that the complainant first avails of those alternative remedies.

30 The judgment in Sakiri Vasu was rendered by Markandey Katju,J. (for himself and A.K. Mathur, J.) and the relevant portion of the judgment reads as follows:

  1. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.
  • We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 Cr.P.C. before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3).

  • If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

  • As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

  • It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.”

  • 31 Sakiri Vasu is not a stand alone order. In Sudhir Bhaskarrao Tambe which was decided on 12.04.2010, but, reported in (2016) 6 SCC 277, the Supreme Court has reiterated the law laid down in Sakiri Vasu. The judgment of the Supreme Court in Sudhir Bhaskarrao Tambe came up for consideration once again before the Supreme Court in Hemant Yashwant Dhage vs. State of Maharashtra and Others [(2016) 6 SCC 273], in which, there is a reference to the Sakiri Vasu decision. The relevant portion from Sudhir Bhaskarrao Tambe reads as under:

    “2. This Court has held in Sakiri Vasu v. State of UP (2008) 2 SCC 409 that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.”

    1. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156 (3)CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.”

    32 Furthermore, a Division Bench of this Court, in Ramachandran (supra), has implicitly followed Sakiri Vasu and has held as under:

    “10. In such circumstances, the learned Single Judge rightly refused to entertain the writ petition and held that the appellant has not made out any case for grant of any damages on the ground of public tort. The learned Single Judge by placing reliance on the decision of the Hon’ble Supreme Court in Sakiri Vasu vs. State of U.P. [(2008) 2 SCC 409], declined to direct the CBI to investigate into the matter. As observed by the Hon’ble Supreme Court in the said decision, if a person has a grievance that his F.I.R has not been registered by the Police, first remedy is to invoke Section 154(3) CrPC and if despite approaching the Superintendent of Police under the said provision, he still has a grievance that he can approach a Magistrate under Section 156(3)CrPC. The person so aggrieved has a further remedy of filing a criminal complaint under Section 200 CrPC. In such circumstances, the Hon’ble Supreme Court held that writ petitions or petitions under Section 482 CrPC should not be entertained.”

    33 Long before the judgment in Sakiri Vasu, in All India Institute of Medical Sciences Employees’ Union (Regd.) through its President vs. Union of India and others, [(1996) 11 SCC 582], (for brevity AIIMS Employees Union ), the Supreme Court has held as follows:

    1. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complain/ evidence recorded prima facie discloses offence, he is empowered to take cognizance of the offence and would issue process to the accused.
  • In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. The High Court, therefore, though for different reasons, was justified in refusing to grant the relief as sought for.

  • 34 In Gangadhar Janardan Mhatre vs. State of Maharashtra and Others [(2004) 7 SCC 768] and Hari Singh vs. The State of U.P. [(2006) 5 SCC 733], the Supreme Court reiterated the law laid down in AIIMS Employees’ Union.

    35 In Aleque Padamsee and Others vs. Union of India and Others [(2007) 6 SCC 171], a 3 Judge Bench of the Supreme Court, has categorically held as under:

    1. The writ petitions are finally disposed of with the following directions:

    (1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.

    (2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.

    36 In Divine Retreat Centre vs. State of Kerala and Others, [(2008) 3 SCC 542], the Supreme Court held as under:

    42 Even in cases where no action is taken by the police on the information given to them, the informant’s remedy lies under Sections 190, 200 Cr.P.C. but a writ petition in such a case is not to be entertained.

    37 Heavy reliance was placed upon a recent judgment dated 05.09.2016 of the Supreme Court in Prabhu Chawla vs. State of Rajasthan and another [2016 SCC OnLine SC 905]. In the said judgment, a special Bench of 3 Judges was constituted to reconcile the law propounded in Dhariwal Tobacco Products Ltd. vs. State of Maharashtra and another [(2009) 2 SCC 370] and Mohit alias Sonu and another vs. State of Uttar Pradesh and another [(2013) 7SCC 789]. The Special Bench relied upon the judgment in Madhu Limaye vs. State of Maharashtra [(1977) 4 SCC 551] and held that even though a remedy under Section 397, Cr.P.C. exists, yet, the inherent power of the High Court under Section 482, Cr.P.C. will not stand eclipsed. On the strength of this recent ruling, learned counsel contended that the existence of alternative remedies under Section 154(1), 154(3) and 156(3), Cr.P.C. will not, in any way, abridge the power of this Court under Section 482, Cr.P.C.

    38 This Court gave its anxious consideration to the aforesaid submission. It is pertinent to point out that Prabhu Chawla relates to exercise of power under Section 482, Cr.P.C. in matters governed by revisional jurisdiction of the High Court/Sessions Court. The issue in Prabhu Chawla is not relatable to the remedy available to a person if the police fail to register an FIR. In a catena of judgments of the Supreme Court right from AIIMS Employees’ Union upto Hemant Yashwant Dhage, the categorical view of the Court is that if the police fail to register an FIR, the complainant should take recourse to Sections 154(3) or 156(3) or 190, Cr.P.C. read with Section 200, ibid. These judgments of the Supreme Court squarely cover the issue at hand and therefore, this Court cannot afford to ignore these line of judgments and take cover under Prabhu Chawla for entertaining a petition under Section 482, Cr.P.C., notwithstanding the existence of remedies under Sections 154(3), 156(3), 190 and 200 Cr.P.C.

    39 Under Section 397, Cr.P.C., the High Court has been conferred with revisional powers to call for the records of any proceedings before any inferior Criminal Court and test the correctness, legality or propriety of such an order or proceeding. The inherent power under Section 482, Cr.P.C. can be invoked in matters that are covered by Section 397, ibid. But, can Section 482, for instance, be invoked when a matter is covered by a specific mention? The answer to this question is an emphatic no . Where specific provisions exist under the Code to deal with a given situation, the invocation of Section 482, is clearly barred. This has been vividly explained by the Privy Council in Lala Jairam Das and others vs. The King Emperor [1945 MWN (Cr.) 62], where, the issue before the Privy Council was whether the High Court can grant bail by exercise of its inherent power to a person whose conviction has been confirmed by the High Court and leave has been granted to move the Privy Council, pending decision of the Board. In that context, the Privy Council held that inherent power cannot be exercised to grant bail, however, desirable it may be. The following passages from the said judgment are instructive and will dispel the doubts in this regard.

    Section 561 A of the Code confers no powers. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice.

    . . . Finally their Lordships take the view that Chapter XXXIX of the Code together with S.426 is, and was intended to contain, a complete and exhaustive statement of the powers of a High Court in India to grant bail and excludes the existence of any inherent additional power in a High Court relating to the subject of bail. They find themselves in agreement with the views expressed by Richardson J., Henderson J. and Bose J. in the three cases referred to earlier in this judgment.

    . . . . Their Lordships fully appreciate the propriety and utility of such a power, exercisable by judges acquainted with the relevant facts of each case, and (if exercised) with power to order that the bail period be excluded from the term of any sentence. But in their Lordships’ opinion this desirable object can only be achieved by legislation. (emphasis supplied)

    40 Reliance was placed on the judgment of the Supreme Court in Ramesh Kumari vs. State (NCT of Delhi and Others) [AIR 2006 SC 1322], wherein, the Supreme Court has held that the High Court should not have dismissed the petition for a direction to the police to register an FIR on the ground of non-exhaustion of alternative remedy. On a careful reading of the said judgment, it is seen that in a civil litigation, the High Court had granted interim stay protecting the possession of the complainant, despite which, the complainant was dispossessed by the accused. The complainant lodged two complaints to the police, but, to no avail. Aggrieved by the inaction, the complainant approached the High Court in writ proceedings for a direction to the police to register an FIR which was dismissed by the High Court on the ground of non-exhaustion of alternative remedy without even indicating what was the alternative remedy available to the appellant. Only in those circumstances, the Supreme Court had to interfere with the order of the High Court and in that context, the Supreme Court held that the High Court should not have dismissed the writ petition on the ground of non-exhaustion of alternative remedy.

    41 In the issue at hand, primary remedies, viz., Section 154(3), 156(3) and 190 read with Section 200, Cr.P.C. are available in the statute and they have been reiterated by the Supreme Court in Sakiri Vasu line of cases. Therefore, a solitary judgment on the peculiar facts of a case cannot be pressed into service to dislodge the law laid down by the Supreme Court in Sakiri Vasu line of cases.

    42 It was brought to the notice of this Court that Madhya Pradesh High Court, Punjab and Haryana High Court, Gujarat High Court, Delhi High Court, Karnataka High Court, Kerala High Court and Jharkhand High Court implicitly follow Sakiri Vasu and do not issue directions to register FIRs.

    43 It is the prerogative of the Bar to submit that this Court should declare Sakiri Vasu as per incuriam and should, instead, follow Prabhu Chawla. Article 141 of the Constitution of India does not inhibit such arguments, but, clearly prohibits this Court from deviating from the law laid down by the Supreme Court. Any such deviation by this Court would not only amount to judicial overreach, but is also tantamount to judicial arrogance.

    44 Relying upon the judgment of the Privy Council in Khwaja Nazir Ahmad, an argument was advanced at the Bar that Magistrates have no power to monitor the investigation as that would be an encroachment by the judiciary into the domain of the executive and therefore, this Court should not take note of the judgment of the Supreme Court in Sakiri Vasu.

    45 It is true that in India, judiciary and the police work complementary to each other and not at cross-purposes. Monitoring does not mean supervision . Under Section 172 Cr.P.C., the Magistrate has the power to call for the case diary and peruse the same. Monitoring simply means perusing the case diary and asking the Investigating Officer as to why he did not do this, that or the other and not directing him to do this, that and the other. In this regard, it will be in the fitness of things to point out that, in Hemant Yashwant Dhage, the Supreme Court has gone one step further and has approved the action of the Pune Magistrate in issuing certain directions to ensure that the investigation is on the right lines. To that extent, the Supreme Court has extended the powers of the Magistracy.

    46 The Lalita Kumari conundrum began in 2008 and ultimately, ended in 2014. The chronology is as follows:

    Lalita Kumari I (2008) 7 SCC 164

    Lalita Kumari II (2008) 14 SCC 337

    Laiita Kumari III (2012) 4 SCC 1

    Lalita Kumari IV (2014) 2 SCC 1

    Lalita Kumari

    Income cannot be disclosed under RTI

    The Central Information Commission (CIC) has upheld an order rejecting an RTI application seeking details of income tax returns of a person on the ground that the disclosure would cause unwarranted invasion to the privacy of the assessee…

    https://drive.google.com/open?id=0B-JZGIVy-RW5NW1GNklCUHFaR3c

    Client gets kicked by a lawyer for demanding money refund !!! 😳😳

    http://www.timesnownews.com/india/article/shocking-lawyers-rough-up-client-publicly-outside-court/93511

    A lawyer at the Rampur ( UP) Court keep his client for demanding money refund !! The shocking incident was captured on camera