HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.933 OF 2014 DATED:11.6.2014 Between:
The Sub-Inspector of Police Ramkoti Narayanaguda Police Station Hyderabad Andhra Pradesh … Appellant And A.V. Santhosh Kumar and others … Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.933 OF 2014 JUDGMENT: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against the judgment and order of the learned single Judge of this Court dt.30.12.2013 by which His Lordship did not grant any relief as prayed for by the respondent - writ petitioner, as it was not necessary because immediately after filing of the writ petition the relief sought for was really acceded to by the respondent police officials. Had the Hon’ble trial Judge rested the matter then and there, this appeal would not have been preferred. The appeal has been preferred because of awarding of costs against the officer concerned and on this issue this appeal is sought to be admitted.
2. We accordingly admit the appeal for hearing. But, we do not wish to keep the matter pending as the issue is not complicated one. Therefore, hearing with formality is unnecessary. Learned counsel for the respondent - writ petitioner has been supplied with a copy of the appeal papers. All other formalities are dispensed with by consent of the parties.
3. Learned counsel for the appellant argues that there was no warrant to pass order of costs, as it was not prayed for in the writ petition. The grievance of the petitioner, at the most, though not stated in the body of the writ petition, was against inaction of the police officer. In the body of the writ petition nowhere it has been alleged that there has been any refusal of the appellant to accept the complaint of the petitioner for which the writ petition should have been entertained. He also argued that even assuming going by the prayer the writ petition could be entertained, then there are a number of effective alternative remedies available under the law. He has drawn our attention to sub- section (3) of Section 154 of the Code of Criminal Procedure, 1973 and sub-section (3) of Section 156 of the Cr.P.C. and Section 200 of the Cr.P.C. Therefore, it is incorrectly alleged in the writ petition that there is no alternative and efficacious remedy.
4. Learned counsel for the respondent - writ petitioner while supporting the impugned judgment, on the strength of the Supreme Court judgment in the case of Lalita Kumari v. Government of Uttar Pradesh[1] submits that the objection raised by the learned counsel for the appellant was not raised by the learned counsel for the State at the time of entertaining the writ petition rather inaction of the appellant was admitted. Therefore, the order passed by the learned trial Judge awarding costs is just and perfect.
5. We have noted the arguments of learned counsel for both the parties.
6. The first question raised before us is the question of disclosure of cause of action in the writ petition. We have been able to understand from a reading of the impugned judgment and order that the grievance before the learned trial Judge was in relation to alleged refusal to receive complaint. It is no use of saying before us that objection was not taken at the time of entertaining the writ petition. According to us, it is the question that concerns jurisdiction of the Court and this legal question even if objection not taken, can be examined by us. It is settled position of law that unless cause of action is disclosed in the writ petition, or in any lis, the Court cannot assume jurisdiction to grant relief in private individual action. The Court can suo motu take cognizance of the case in public interest litigation but not with regard to disputes between private individuals. The contention that since this question was not raised before the learned Trial Judge this Court cannot examine the same, is unacceptable simply as there cannot be estoppel or waiver as against provision of law. Therefore, we need to examine closely whether there has been any disclosure of cause of action.
7. The facts of the case as stated in the writ petition by the petitioner, read as under.
“Facts of the Case:
1. It is submitted that the petitioner has joined as a shareholder of the ‘DELTA CABS’ Pvt. Ltd. (office regd. no. #3-5-121/E/13) on 26.04.2010 office at #3-5-121/F/13, Adj.to Jagruti P.G. College, Ramkoti, Hyderabad. He has deposited Rs.1,00,000/- (one lakh) towards SBI Bank cheque no.247491 in the company for share application for the purpose of doing the business and expansions of the said company. Md. Sajid Hussain and Mr. Ahmed Hussain both are partners of the said company and entered into agreement with the petitioner on 06-05-2012. One of the partner has issued cash receipt sl. No.7140 to the petitioner Dtd.05-05-2012.
2. And further submitted that as per terms and conditions in the agreement clause (1) & (2) the said company has paid Rs.5,000/- per month from 6th June 2012 to May 2013 towards percentage of the capital amount and profit of the business paid to the petitioner. Thereafter, the company has issued post dated SBI Bank cheques to the petitioner from 6th June 2013 to May 2014 (vide post dated cheque nos.606619 to 606630). From the month of 6th June 2013 onwards the 1st and 2nd Respondents has not paid the profit of the business and pcercentage of the capital amount to the petitioner. Thereafter the petitioner personally visited the company to collect the amount from the said company; he has observed that the office was closed. Later he has telephoned to the said respondent for collection of dues, they have not lifted the phone, consequently, the News item was published in the “EENADU NEWS PAPER” against the partners of ‘DELTA CABS” Pvt. Ltd. herein the 1st & 2nd respondents were absconded with share holders/public funds. The partners of the company were cheated the government and the public/share holders of the company and both are colluded with criminal intention, absconded with shareholders/public money and profit of the business Rs.56 crores. According to News Paper information similar cases are investigating by the Commissioner of Police, Hyderabad (herein the 7th respondent). There is no other alternative the petitioner has lodged the complaint against the partners of the ‘DELTA CABS” Pvt. Ltd. to trace out them for collection the capital amount along with interest as per conditions in agreement.
3. Total amount deposited by the petitioner Rs.1,00,000/- (one lakhs). Particulars of the payment details and payable amounts of the ‘DELTA CABS” Pvt. Ltd: -
… … … Other grounds urged at the time of hearing.
Hence, I have no other alternative efficacious or effective remedy than to approach this Hon’ble Court invoking extraordinary jurisdiction under Art. 226 of the Constitution of India for redressal of my grievance.
4. I submit that I have not filed any W.P. earlier and no other suits are pending in any Court on the particular cause of action.”
8. It is well-known and meant by the words ‘cause of action’. Cause of action is the fact and bundle of facts (fact alone and not the law) in order to get relief, the plaintiff (read here petitioner) is to prove if traversed by the defendant (read here respondent). The learned trial Judge was given an impression that there has been disclosure of cause of action. From the undisputed fact it emerges there has not been any approach to the Police Station with a complaint, which is one set of facts to constitute cause of action, followed by refusal to accept the complaint or inaction on receipt thereof, as the case may be. If those two facts are missing from the writ petition, in our view, there is no disclosure of cause of action, as rightly argued by the learned counsel for the appellant. According to us, the learned trial Judge was totally misled as if there has been or the writ petition discloses cause of action. The judgment cited by the learned counsel for the respondent - writ petitioner is not applicable as it dealt with different issue. In paragraph 111 of the judgment the Supreme Court summarized its decision as under:
“111. In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses 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 information 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 discloses a cognizable offence.
v) The scope 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 matter 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.
9. We are of the view that this is not the authority to hold that even if there is no disclosure of cause of action the writ Court can automatically act on the basis of oral submission made by the learned counsel for the party. This judgment is miles away of the point involved in the case on hand. We do not apply this judgment in this matter.
10. We accordingly allow the appeal and set aside the judgment and order of the learned trial Judge as it was not warranted for reasons recorded above.
11. As it has been recorded by the Hon’ble trial Judge that action has already been taken by the Police on receipt of the copy of the writ petition, we make it clear that this judgment shall not stand in their way. The action which has been taken by the Police authorities must reach to its logical conclusion in accordance with law.
12. Miscellaneous petitions, if any, pending in this appeal shall stand closed.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 11.6.2014 bnr L.R. Copy to be marked. Yes.
[1] [2013] 4 Crimes (SC) 243