1 [CASE NUMBER] 8.12.2016. Ms. [ENTITY], learned counsel for petitioner. Heard on admission. 1. Petitioner seeks mandamus to respondents No.1 to 4 to register an FIR. Precise relief which the petitioner seeks is : (1) to direct the respondents No.1 to 4 to produce the entire action regarding Annexure P/4 to P/6 for perusal of this Hon'ble Court. (2) to direct the respondents No.1 to 4 to take appropriate steps in Annexure P/4 to P/6 in the light of decision in [ENTITY] vs Govt. of U.P. (2014) 2 SCC 1. (3) to direct the respondents No.1 to 4 to register an FIR against respondents No.5 to 13 in above mentioned offences. (4) to grant any other relief as deemed fit and proper in the circumstances of the case, along with cost of this writ petition be also awarded. 2. The relief is sought on the basis of verdict by the Supreme Court in [ENTITY] (supra), wherein their Lordships were pleased to hold : 120. In view of the aforesaid discussion, we hold: 120.1 Registration of FIR is mandatory under [SECTION] of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2 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. 120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases 2 [CASE NUMBER] 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. 120.4 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. 120.5 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.
120.8 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."
3. In this context, reference can be had of the decision in [PRECEDENT], wherein their Lordships, while dwelling upon the issue as arises for consideration in the present petition, were pleased to observe:
"26. At this stage, we may usefully refer to what the [ACT] Bench has to say in [ENTITY] v. Govt. of U.P. in this regard. The larger Bench had posed the following two questions:-
"(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is 3
compulsorily registered then does it infringe the rights of an accused."
Answering the questions posed, the larger Bench opined thus:
"49. Consequently, the condition that is sine qua non for recording an FIR under [SECTION] of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of [SECTION], the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of [SECTION] of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of [SECTION] of the Code have to be given their literal meaning.
72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent.
111. The Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under [SECTION] of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has "reason to suspect the commission of an offence". Therefore, the requirements of launching an investigation under [SECTION] of the Code are higher than the requirement under [SECTION] of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under [SECTION] of the Code seeking closure of the matter. Therefore, 4
the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.
115. Although, we, in unequivocal terms, hold that [SECTION] of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint."
After so stating the [ACT] Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state:-
"120.6. 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.
120.7. 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 5
causes of it must be reflected in the General Diary entry."
We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not.
27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the [ACT], invokes the jurisdiction under [SECTION] [ACT]
and also there is a separate procedure under the Recovery of Debts due to [ACT], an attitude of more care, caution and circumspection has to be adhered to.
28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate.
30. In our considered opinion, a stage has come in this country where [SECTION] [ACT] applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are 6
being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under [SECTION] of the [ACT]. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under [SECTION] and [SECTION] while filing a petition under [SECTION]. Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under [SECTION] be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under [SECTION]. That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in [ENTITY] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
4. Similarly, in [PRECEDENT], their Lordship, while placing reliance on the decision in [ENTITY] (supra), were 7
pleased to observe :
"19. Thus, this Court has laid down that while prompt registration of FIR is mandatory, checks and balances on power of police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Delicate balance had to be maintained between the interest of society and liberty of an individual. Commercial offences have been put in the category of cases where FIR may not be warranted without enquiry."
5. In Divine Retreat Centre v. State of Kerala ([SECTION]8) 3 SCC 542, while dwelling upon the scope of indulgence in a petition under [SECTION] of the [ACT] and relying on the decision in [PRECEDENT] vs State of Maharashtra ([SECTION]4) 7 SCC 768, their Lordships were pleased to hold :
"42. Even in cases where no action is taken by the police on the information given to them, the informants remedy lies under [SECTION], [SECTION] [ACT], but a Writ Petition in such a case is not to be entertained. This Court in [PRECEDENT] (supra) held:
"13. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under [SECTION] of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in [SECTION] 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 police concerned to investigate into offence under [SECTION] of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further 8
action, he is empowered to dismiss the complaint under [SECTION] of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in [PRECEDENT]. It was specifically observed that a writ petition in such cases is not to be entertained. These aspects have been highlighted by this Court in [PRECEDENT]. It was specifically observed that a writ petition in such cases is not to be entertained."
6. Similar view has been expressed in Aleque Padamsee v. Union of India ([SECTION]7) 6 SCC 171, [ENTITY] v. State of Uttar Pradesh ([SECTION]8) 2 SCC 409 and [PRECEDENT].
7. Furthermore, scope of interference in a petition under [SECTION] of the [ACT] has been delineated in [PRECEDENT], wherein it is held -
"2. This Court has held in [ENTITY] v State of U.P. ([SECTION]8) 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 the High Court under [SECTION] of the [ACT], but to approach the Magistrate concerned under [SECTION] [ACT]. If such an application under [SECTION] [ACT] 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 9
change of the investigating officer, so that a proper investigation is done in the matter. We have said this in [ENTITY] 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.
3. 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] [ACT] 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."
8. In view whereof, since the petitioner has a forum under the provisions of [ACT], this Court refrain from issuing the mandamus as sought.
9. Consequently, the petition is disposed of finally in above terms. No costs.
([ENTITY]) vinod JUDGE