This writ petition is filed by the petitioner seeking certain directions to be issued to respondents 1 to 3 under Article 226 of the Constitution of India. 2. It is alleged in the petition that the petitioner is a practicing lawyer in the High Court of Kerala. He is aggrieved by non-registration of First Information Report despite the receipt of a complaint relating to the complaint of a cognizable offence. On 21.11.2013 in the function of inauguration of hunger strike organized by Western Ghats people protection committee in front of Kozhikode Collectorate, the 4th respondent made a hatred speech thereby committed acts of promoting thoughts of enmity and hatred between different classes of citizens resulting serious public disorder. The hatred speech made by the 4th respondent attracted the offence punishable under Sections 153 A and 124 A of the Indian Penal Code. The speech was published in printed media and also in visual media. Ext.P1 is one of such reports published in Times of India. The alleged hatred speech, according to the petitioner, amounts an offence under Section 153 A and 124 A of the Indian Penal Code. He sent Ext.P2 complaint by registered post to the second and third respondents,which were received by them on 25.11.2013 evidenced by Ext.P3 series postal acknowledgments. He had also sent Ext.P4 petition for granting sanction to file complaint to the first respondent and no action has been taken on that application. According to the petitioner, as per the decision reported in Lalita Kumari v. Govt. of U.P and others (2013 (4) KHC 552), the third respondent is bound to register First Information Report as the allegations in the complaint disclose commission of a cognizable offence and non compliance of the same will entitle the petitioner to approach this Court for its intervention under Article 226 of the Constitution of India. So, the petitioner has no other remedy except to approach this Court seeking the following reliefs:
i. Issue a writ of mandamus or appropriate writ, order or direction, directing the 3rd respondent to register an F.I.R against the 4th respondent strictly in accordance with the direction of the Apex Court in Lalitha Kumari vs. Govt. of U.P. & Ors;
ii. Issue a writ of mandamus or appropriate writ, order or direction directing the 1st respondent to consider Ext.P4 petition and accord sanction under Section 196 Cr.P.C for taking cognizance of the offence punishable under Section 153 A of I.P.C;
iii. Issue such other reliefs that this Hon'ble Court deems fit and proper in the facts and circumstances of the case.
3. On the basis of the allegations in the petition, this Court has called for a statement from the official respondents and the second respondent filed a statement as follows:
“1. The above writ petition is filed by the petitioner, aggrieved by non-registration of first Information Report even after receipt of Edxt.P2 complaint by the police.
2. It is true that Ext.P2 complaint was received by the 3rd respondent . However, no case was registered against the 4th respondent on the basis of Ext.P2 complaint and Ext.P1 paper report in view of the fact that no cognizable offence was made out as against the 4th respondent.
3. It is submitted that on 21.11.2013 a hunger strike was held in front of the Kozhikode Civil Station by the Western Ghats people's Protection committee in which the 4th respondent was the president. During the hunger strike Sri. U.M. Ummer MLA and Sri.M.I. Shanavas Member of Parliament were also present. It is true that the 4th respondent delivered a speech on that day in front of the main gate of the Collectorate at Kozhikode. It is submitted that the Station House Officer of Nadakkavu Police Station Sri. Dinesh Koroth and other police officers were present at the site during the entire length of the speech and thereafter. According to the Station House Officer the speech of the 4th respondent was neither provocative or offensive warranting registration of a crime for offence punishable u/s 153 (A) or 124 A IPC.
4. It is submitted that the speech of the 4th respondent has not invoked any provocative or offensive statement as alleged by the petitioner. The petitioner is solely relying Ext.P1 paper report to implicate the 4th respondent in a crime. The petitioner has no direct information or knowledge other than what is stated in Ext.P1 paper report. It is submitted that the registration of a crime solely based on a paper report is unjustified unless there are other evidences available. In the case on hand, the Station House Officer was physically present during the entire speech and he could not find any words which were provocative or offensive as as to attract the ingredients of an offensive punishable u/s 153 (A) or 124 A of the IPC. It is further submitted that on receipt of Ext.P2 complaint an enquiry was conducted by the 34rd respondent. During the enquiry Mr. Prasanth, Bureau Chief of Times of India has stated that the Ext.P1 news item was prepared without being present during the time of the speech. He had prepared the news on the basis of the information given by other media friends. Therefore, even the statements in Ext.P1 are hearsay statements and not published on the basis of direct knowledge or information.
5. As already submitted, the speech delivered by the 4th respondent on 21.11.2013 in front of the main gate of the Kozhikode Collectorate was not provocative or offensive. The speech did not bring or attempt to bring hatred, contempt or excites or attempts to excite disaffection towards the Government so as to attract the provisions of Section 153 A and 124 A Indian Penal Code. In view of the above no case has been registered a s against the 4th respondent.
6. It is also submitted that the principles laid down by the Hon'ble Supreme Court in Lalitha Kumari vs. Govt. of U.P. And others reported in 2013 (4) KHC 552 is not applicable to the facts of the above case. Only if the ingredients of an offence is made out, the police need register a case against the accused. In the absence of any material on hand to implicate the 4th respondent, the police is justified in not registering a case.
7. In the above circumstances, the petitioner is not entitled to any of the reliefs sought for in the writ petition. The writ petition is only to be dismissed and it is accordingly prayed for”.
4. The petitioner filed reply statement denying the allegations in the statement filed by the second respondent and also produced Ext.P5, copy of the report published in Malayala Manorama in respect of the same incident. Thereafter this Court has directed the third respondent to file a statement. Accordingly, the third respondent filed a statement which reads as follows:
“1. The above writ petition is filed by the petitioner, aggrieved by non-registration of First Information Report even after receipt of Ext.P2 complaint by the police.
2. It is true that Ext.P2 complaint was received by this respondent. However, no case was registered against the 4th respondent on the basis of Ext.P2 complaint and Ext.P1 paper report in view of the fact that no cognizable offence was made out as against the 4th respondent.
3. It is submitted that on 21.11.2013 a hunger strike was held in front of the Kozhikode Civil Station by the Western Ghats people's Protection committee in which the 4th respondent was the president. During the hunger strike Sri.
U.M. Ummer MLA and Sri. I.I. Shanavas Member of Parliament were also present. It is true that the 4th respondent delivered a speech on that day in front of the main gate of the Collectorate at Kozhikode. It is submitted that myself along with other police officers were present at the site during the entire length of the speech and thereafter. It is submitted that the speech of the 4th respondent was neither provocative nor offensive warranting registration of a crime for offence punishable u/s 153 (A) or 124 A IPC. None of the ingredients of the offence was made out in the said speech, warranting registration of a crime.
4. It is submitted that the speech of the 4th respondent has not invoked any provocative or offensive statement as alleged by the petitioner. The petitioner is solely relying Ext.P1 paper report to implicate the 4th respondent in a crime. The petitioner has no direct information or knowledge other than what is stated in Ext.P1 paper report. It is submitted that the registration of a crime solely based on a paper report is unjustified unless there are other evidences available. In the case on hand, myself was physically present during the entire speech and I could not find any words which were provocative or offensive so as to attract the ingredients of an offensive punishable u/s 153 (A) or 124 A of the IPC. It is further submitted that on receipt of Ext.P2 complaint a preliminary enquiry was conducted by me in order to ascertain whether the allegations in the complaint made out the commission of a cognizable offence. During the enquiry Mr. Prasanth, Bureau Chief of Times of India has stated that the Ext.P1 news item was prepared without being present during the time of the speech. He had prepared the news on the basis of the information given by other media friends. Therefore, even the statements in Ext.P1 are hearsay statements and not published on the basis of direct knowledge or information.
5. As already submitted, the speech delivered by the 4th respondent on 21.11.2013 in front of the main gate of the Kozhikode Collectorate was not provocative or offensive. The speech did not bring or attempt to bring hatred, contempt or excites or attempts to excite disaffection towards the Government so as to attract the provisions of Section 153 A and 124 A of the Indian Penal Code. In view of the above no case has been registered as against the 4th respondent.
6. It is also submitted that the principles laid down by the Hon'ble Supreme Court in Lalitha Kumari Vs. Government of U.P. And others reported in 2013 (4) KHC 552 is not applicable to the facts of the above case. Only if the ingredients of an offence is made out, the police need register a case against the accused. In the absence of any material on hand to implicate the 4th respondent, the police is justified in not registering a case.
7. In the above circumstances, the petitioner is not entitled to any of the reliefs sought for in the writ petition. The writ petition is only to be dismissed and it is accordingly prayed for”.
5. Sri. Baisil Attipetty @ Basil A.G, an Advocate and one Prof. Chacko Kalamparambil filed applications to implead themselves as intervenors as I.A.No.2956/2014 and I.A.No.1903/2014 and this Court has permitted them to participate in the proceedings invoking Rule 152 of the Kerala High Court Rules at the time of hearing on admission itself.
6. Earlier, learned Advocate General appearing for respondents 1 to 3 submitted that since it is in the nature of public interest litigation, it must be referred to a Bench dealing with public interest litigation and raised this as a preliminary objection and when this Court expressed that since the petitioner had filed the complaint himself as a responsible citizen and he is aggrieved by non registration of the First Information Report, he is entitled, in his personal capacity, to approach this Court and it cannot be said that it is having the magnitude of public interest litigation and the question whether the matter has to be admitted or not can be considered as a preliminary point, the learned Advocate General submitted that his objection can be considered at the stage of admission itself as to whether the petition has to be admitted or not as a preliminary point and accordingly that question also considered by this Court. Since this Court felt that this can be disposed of at the admission stage itself after hearing the counsel for the petitioner, learned Advocate General appearing for respondents 1 to3 and other parties, who wanted to intervene themselves and permitted to intervene invoking the power under Rule 152 of the Kerala High Court Rules, this Court had dispensed with notice to the 4th respondent.
7. Heard the petitioner and learned Advocate General - Sri. K.P. Danadapani and learned senior advocate - Sri. Ram Kumar, who appeared for the petitioner in I.A.No.1903/2014 and Advocate Basil Attipetty @ Baisil, the petitioner in I.A.No.2956/2014 who appeared in person and perused the documents and statements filed.
8. The petitioner, who appeared in person submitted that in view of Lalita Kumari's case (cited supra) of the Constitution Bench of Hon'ble Supreme Court of India, the Station House Officer has no other option but to register a case when the complaint discloses a cognizable offence. Further, the reasons stated by the second and third respondents are not sustainable in law as it is a matter to be considered by them while conducting investigation regarding the genuineness of the allegations made in the complaint. Further, if they did not register any case as per the decision cited supra, it must be intimated to the complainant, so that, he can proceed with the remedies available under the Code of Criminal Procedure (hereinafter referred to as 'the Code'). Though the speech was made on 21.11.2013 and it was published in the electronic media on the same date and in the printed media on the next day and the petitioner had submitted Ext.P2 complaint on 22.11.2013 on the basis of Ext.P1 report published in Times of India and it was received by respondents 2 and 3 on 25.11.2013 evidenced by Ext.P3 series postal acknowledgments, they have not done anything till the petitioner filed the writ petition on 10.12.2013. Further, they are not expected to conduct any preliminary enquiry before registering a crime in respect of a complaint which disclosed commission of cognizable offence in view of the dictum laid down in the decision reported in Lalita Kumari's case (cited supra). Further, no action was taken on the basis of Ext.P4 as well. So under the circumstances, according to the petitioner, this Court has got power to issue writ of mandamus directing the third respondent to register crime and conduct investigation.
9. On the other hand, learned Advocate General Sri. K.P. Dandapani appearing for respondents 1 to 3 submitted that merely because a complaint was filed, police is not bound to register a crime. Further, the petitioner is not an eye witness and he had not heard the speech as well. He had relied on the speech published in Times of India which is not a primary evidence but only having the effect of hearsay evidence which is in admissible in evidence. Further, it will be seen from the statement of the second and third respondents that they have enquired with the reporter of Times of India and it was revealed that he had not heard the speech directly and he got information from other press reporters on the basis of which the report in Ext.P1 published. So, under the circumstances, the police was perfectly justified in not registering the crime. Even if no action was taken by the police on the basis of the complaint, the petitioner has got other remedies available under the Code and without exhausting those remedies, the petitioner is not entitled to approach this Court to issue writ of mandamus or any other writ under Article 226 of the Constitution of India. Further, this Court cannot go into the question as to whether the allegations in the complaint are prima facie made out commission of a cognizable offence or not as it is a matter to be considered subject to the satisfaction of the Station House Officer, who received the complaint.
10. Learned senior advocate Sri. K. Ram Kumar also submitted in support of the submission made by the learned Advocate General. The learned counsel also submitted that the Constitution Bench has only reiterated the principle that if a cognizable offence is made out in the complaint, police will have to register a crime and in certain cases they can conduct preliminary enquiry if they are not satisfied with the allegations made in the complaint. Further, it is the subjective satisfaction of the Station House Officer as to whether First Information Report has to be registered or not and even if he commits a mistake in making the satisfaction, that will not be subjected to scrutiny by this Court under Article 226 of the Constitution of India as it is for the Magistrate later on the basis of complaint given by the petitioner to consider and take appropriate action under Section 156(3) of the Code read with Sections 190 and 200 of the Code. He had relied on the decision reported in Sanjay Sitaram Khemka v. State of Maharashtra & Others (2006 (5) SCC 255), Aleque Padamsee and others v. Union of India & Others (2007 (6) SCC 171), Sakiri Vasu v. State of Uttar Pradesh and Others (2008 (2) SCC 409), All India Institute of Medical Sciences Employees' Union (REGD.) through its President v. Union of India & others (1996 11SCC 582),Gangadhar Janardan Mhatre v. State of Maharashtra & Others (2004 (7) SCC 768), Doliben Kantilal Patel v. State of Gujarat & Another (2013 (9) SCC 447) in support of his case.
11. Sri. Baisil Attipetty also supported the case of the learned Advocate General and learned senior advocate Sri. K. Ram Kumar.
12. The case of the petitioner in the petition was that the 4th respondent has made a hatred statement in a function organized by Western Ghats Protection Council while inaugurating the hunger strike held by the said organization in which he had made a statement that if the Kargil report or Kasthuri Rangan report is implemented, then bloodshed will happen. It is opposed by the public and another Jallianwalla Bagh will happen if it is implemented. According to the petitioner, this will attract the offences under Section 153A and 124A of the Indian Penal Code which are cognizable offences and the speeches were reported in the electronic media and also in the printed media and he had produced Exts.P1 and P5 to prove the same. According to the petitioner, since he had made a complaint disclosing the commission of cognizable offence by making the hatred speech against the 4th respondent, the third respondent is bound to register a case and he is not expected to conduct any preliminary enquiry on this aspect in view of the dictum laid down in the decision reported in Lalita Kumari's case (cited supra) by the Constitution Bench of the Hon'ble Supreme Court of India. Further, he had also relied on the decisions reported in State of Haryana & Others v. Ch. Bajan Lal and Others ( AIR 1992 SC 604), Nanhku Singh v. State of Bihar (AIR 1973 SC 491) and Roop Lal alias Roopa v. State of Haryana (1991 (3) Crimes 502) for the proposition that First Information Statement need not be a substantive evidence and if need not state all the required minute details regarding the incident as it is a matter to be collected during investigation and the informant need not an eye witness as well.
13. There is no dispute regarding the proposition laid down in the above decisions regarding the fact that when a cognizable offence is made out in the complaint, the police has to register a crime and conduct investigation. Even in the decision reported in Lalita Kumari's Case (cited supra) only following conclusions have been arrived at which reads as follows:
“111. In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information disclosed commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him disclosed a cognizable offence.
(v) The s cope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi). As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes. (b)Commercial offences (c ) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the mater without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above”.
14. Even Hon'ble Supreme Court has not in that decision considered the question as to what is the remedy available to the person if a case has not been registered on the basis of a complaint which alleged to have contained allegations regarding commission of cognizable offence. Further in the conclusion, it is mentioned that the list of category of cases in which preliminary enquiry can be conducted by the police before registering the crime enumerated in the decision is not exhaustive and it is for the Station House Officer to consider this fact. In the decision reported in Sanjay Sitaram Khemka v. State of Maharashtra & Others (2006 (5) SCC 255), it has been held that when a matter involving disputed questions of fact, that cannot be dealt with by the High Court and without exhausting other alternate statutory remedies, they cannot come to High Court under Article 226 of Constitution of India. Further in the decision reported in Aleque Padamsee & Others v. Union of India and others (2007 (6) SCC 171) Bench of three Judges of the Supreme Court held that when an information to the police regarding the commission of cognizable offence namely accused alleged to have made speeches likely to disturb communal harmony and no action has been taken by the police on the basis of the complaint, then the complainant is given remedy under Section 190 read with Section 200 of the Code later to complain before the Magistrate concerned and the Magistrate is required to enquire into the complaint as provided under Chapter XV of the Code and the writ petition in such cases is not maintainable. The same view has been reiterated in the decisions reported in Sakiri Vasu v. State of Uttar Predesh & Others (2008 (2) SCC 409),All India Institute of Medical Sciences Employees' Union (REGD.) through its President v. Union of India and others (1996(11) SCC 582), Gangadhar Janardan Mhatre v. State of Maharashtra & Others (2004 7 SCC 768) and Doliben Kantilal Patel v. State of Gujarat (2013 (9) SCC 447).
15. Chapter XII of the Code deals with information to the police and their powers to investigate. Section 154 of the Code deals with Information in cognizable cases which reads as follows:
“154. Information in cognizable cases:- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
[Provided that if the information is given by the woman against whom an offence under Section 354 C, Section 354 D, Section 376, Section 376 A, Section 376 B, Section 376 C, Section 376 D, Section 376 E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that-
(a) in the event that the person against whom an offence under Section 354, Section 354 A, Section 354 B, Section 354C, Section 354D, Section 376, Section 376 A, Section 376B, Section 376C, Section 376D, Section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c ) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.]
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence”:
16. Section 156 of the Code deals with police officer's power to investigate cognizable case, which reads as follows:
“156. Police officer's power to investigate cognizable case:- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above- mentioned”.
17. Chapter XIV of the Code deals with conditions requisite for initiation of proceedings and Section 190 of the Code deals with Cognizance of offences by Magistrate, which reads as follows:
“190. Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c ) upon information received from any person other than a Police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section(1) of such offences a s are within his competence to inquire into or try”.
18. Chapter XV of the Code deals with complaints to Magistrate and the procedure to be followed by the Magistrate for making enquiry regarding the complaints made which reads as follows:
“200. Examination of complainant:- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
201. Procedure by Magistrate not competent to take cognizance of the case:- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,-
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court.
202. Postponement of issue of process:- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks it,[ and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate tht the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint:- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.”
19. So, it is clear from the above provisions in the Code that if the police did not register a case on the basis of a complaint filed by the complainant, then he has got a remedy to file a private complaint under Section 190 read with Section 200 of the Code and when a complaint is filed, then the Magistrate has to conduct enquiry under Sections 200 and 202 of the Code and if the Magistrate is satisfied on the basis of the materials produced before that court that commission of an offence has been prima facie made out, then the Magistrate can take cognizance of the case and issue process to the accused under Section 204 of the Code. If the Magistrate is not satisfied with the materials produced and if he is satisfied that no offence has been made out, then the Magistrate can dismiss the complaint under Section 203 of the Code.
20. As rightly pointed out by the learned Advocate General and also the counsel appearing for the intervening parties that the Station House Officer can commit mistake in coming to the satisfaction as to whether the allegations are sufficient to attract the ingredients of commission of a cognizable offence or not and if such mistake is committed by the Station House Officer, then the Court cannot, invoking the power under Section 226 of the Constitution of India, go into the question as to whether non satisfaction by the Station House Officer is proper or not to issue a writ of mandamus or other writs directing the Station House Officer to register a crime as it is a matter to be considered by the Magistrate under Section 190 read with Section 200 of the Code on a complaint filed by the aggrieved party on account of the inaction on the part of the police in not registering case in such cases. If an enquiry has to be conducted for satisfaction regarding the commission of offence, then it is not proper on the part of the High Court to invoke the power under Article 226 of the Constitution of India and parties must be relegated to resort to their statutory remedy available under the Code in such cases. So, under the circumstances and in view of the discussions made above, since the petitioner has got an efficacious and alternate remedy available under the Code, if there is inaction on the part of the Station House Officer in not registering a case on the basis of the complaint given by him, which the petitioner can resort to this Court cannot issue writ of mandamus or other writ to the Station House Officer to register a crime and investigate the case as claimed by the petitioner and the petitioner is not entitled to get that relief in this petition and that relief is rejected.
21. As regards the grievance of the petitioner that Ext.P4 representation for sanction has not been considered by the first respondent and no intimation has been given regarding the same, that can be disposed of by this Court by giving direction to the first respondent to dispose of the petition as has been done in the decision reported in Aleque Padamsee & Others
v. Union of India and others (2007 (6) SCC 171) and decided in the decision reported in Dr. Subramanian Swamy v. Dr. Manmohan Singh & Another (AIR 2012 SC 1185) giving direction to the first respondent to consider and dispose of Ext.P4 representation, if any filed by the petitioner seeking sanction to prosecute the 4th respondent as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. So, the writ petition is disposed of as follows:
i. The petitioner is not entitled to get writ of mandamus or other writ directing the third respondent to register a crime and investigate the case as claimed in the petition and that prayer is rejected.
ii. It is open to the petitioner aggrieved by the in action of the police to adopt the remedy available by filing a private complaint under Section 190 read with Section 200 of the Code.
iii. So far as not granting of sanction as requested for in Ext.P4 is concerned, it is for the Government concerned to deal with the prayer and the 1st respondent is directed to consider and dispose of Ext.P4 representation as early as possible in accordance with law, at any rate, within three months from the date of receipt of a copy of this order on the basis of the observations made in Dr. Subramanian Swamy v. Dr. Manmohan Singh & Another (AIR 2012 SC 1185).
iv. The learned Advocate General shall communicate this order to the first respondent for the purpose of complying with the directions given in the petition in respect of Ext.P4 representation, if any, filed by the petitioner before the first respondent seeking sanction to launch prosecution against the 4th respondent.
K. RAMAKRISHNAN, JUDGE.
cl