TaxTMI 
TaxTMI 
2020 (7) TMI 790
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.... R7, R8, R9, R11 & R14 BY ADVS. SRI. P. VIJAYAKUMAR, ASG OF INDIA SRI. JAISHANKER V. NAIR, CGC R10 BY SRI. ARJUN AMBALAPATTA, SR. PUBLIC PROSECUTOR FOR NIA JUDGMENT S. Manikumar, CJ Instant public interest writ petition is filed for the following reliefs: a) To issue a writ in the nature of mandamus, directing the State Government to hand over investigation of gold smuggling scam, the Sprinklr, BevQ App., and e-Mobility Consultancy scams, in which the Hon'ble Chief Minister Sri. Pinarayi Vijayan and Sri. M. Shivashankaran, IAS, Former Principal Secretary to the Hon'ble Chief Minister of Kerala and Secretary to the Government of Kerala, Department of Information Technology, (respondent Nos.1 and 2) respectively, are allegedly involved, to the Central Bureau of Investigation/National Investigation Agency (respondent Nos.11/10) and the latter to conduct a just, fair and impartial investigation into the crimes and further to direct all other agencies, the State Police, the Customs and the State Government, to fully cooperate with the CBI/NIA. b) Without prejudice to the above said prayer, petitioner has also sought for a writ of mandamus or any o....
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....ery citizen to initiate criminal law in motion, and where the authorities responsible for putting the criminal law in motion fail or abdicate the responsibility, to seek judicial redressal by initiating a 'qui tam action'- qui tam pro domino rege quam pro se ipso in hac parte sequitur, he, who sues in this matter for the king as well as for himself - and seek a remedy in the nature of writ of mandamus. In the month of April, 2020, petitioner had to institute a petition under Article 226 of the Constitution of India, since police had failed to register an FIR against respondents 1 and 2, concerning the Sprinklr scam, in spite of a written complaint of the petitioner asserting that the allegations made against them, by him and others amount to criminal abuse of official position and power entailing in unjust enrichment which clearly constituted offences punishable under various provisions of the Prevention of Corruption Act, Indian Penal Code and IT Act. This Court admitted the writ petition and ordered notice to the 2nd respondent viz., Sri. M. Shivashankaran. The order passed in W.P.(C) (Temp.) No.129 of 2020 is extracted hereunder: "Admit. Learned Senior Gov....
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....assment at the workplace. It is stated that Swapna Suresh resigned from Air India SATS and joined the UAE consulate to evade police interrogation. The forgery committed by her was unearthed by the Crime Branch which found that the complaint was lodged to wreak vengeance on the said officer, who had allegedly complained to the CBI and the CVC against certain irregularities in the contracts of Air India. 8. It is further alleged that Ms. Swapna Suresh, despite the criminalor questionable background, was appointed by the 2nd respondent, Secretary to the Hon'ble Chief Minister, in exercise of his discretionary powers as Operational Manager in KSITIL. It is further alleged that she was involved in the conduct of major events like the programme arranged for the honour of Sheikh of Sharjah on 24.09.2017. It is further alleged that she was one among the VIPs, who had the permission to speak to the Hon'ble Chief Minister and the Sheikh. It is also alleged that she was associated with the conduct of Kerala Lok Sabha and she is a friend of Speaker Mr. P.Sreeramakrishnan, who inaugurated the office of a company with which Swapna Suresh is associated. The petitioner further alleged t....
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....registration of an FIR, an investigation of the crime, which, to repeat, alone is justiciable. 10. In short, it is contended that the petitioner has instituted the instant writ petition as a person aggrieved, in the enforcement of his rights, qua as a citizen he has every right, nay, even a duty to demand that crimes involving the mighty and the powerful, even putting to jeopardy national interest, which smuggling through diplomatic channels, undoubtedly constitutes to be, be investigated. It is incorrect to say that the instant petition is a PIL, for PIL is an action where a person who has not suffered any personal injury or has no vested right in him, takes up the cause of a third person, who out of his poverty, illiteracy and other like reasons, unable to approach the Court, invokes the jurisdiction of the court on his behalf. The petitioner herein is acting on his own, in the enforcement of his rights, seeking a writ in the nature of mandamus to compel the Police and other law enforcing authorities to discharge their duties, namely, investigation into the various criminal offences allegedly committed by a gang of people of which the 2nd respondent, Shivshankaran, IAS officer....
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....OSA Act, for the said transfer was in furtherance of a design to unjustly enrich, nay, to be gratified at the cost of the revenue of the State and at the cost of the very right to life of the citizens for the right to privacy is an integral part of the very right to life (so far as the Sprinklr scam is concerned). The petitioners have no other efficacious alternative legal procedure available to secure justice than invoking the jurisdiction of this Court under Article 226 of the Constitution for a writ in the nature of mandamus and/or other remedies. (b) The gold smuggling scam, Sprinklr, BevQ app, e-mobilityconsultancy scams in which the Chief Minister and his most trusted aid Shri M. Shivashankaran, a senior IAS officer are allegedly involved, are offences of grave nature, allegedly involving even international smuggling mafia, underworld. These scams pose a threat even to national security and require immediate registration of an FIR in respect of all these scams and a meaningful and effective investigation by the CBI, NIA, Revenue and Customs authorities in full cooperation with the State Police. (c) The petitioner is unable to produce any evidence in support ....
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....l Police Act and is under the administrative control of the Central Government. The CBI cannot take up investigation of corruption allegedly involving the Chief Minister of a state and senior bureaucrats unless the State Government requests the Central Government to do so, which is too unrealistic in today's political environment. Therefore, the only option to secure a CBI investigation to bring the culprits to book is to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. 13. At the outset, Mr. Mathews J. Nedumpara, learned counsel for the petitioner, referred to the definition of "public servant" in the Prevention of Corruption Act, 1988 and submitted that the Hon'ble Chief Minister is a public servant. 14. Learned counsel for the petitioner further submitted that the Hon'ble Chief Minister and the former Principal Secretary to the Hon'ble Chief Minister of Kerala, Department of Information Technology, Government of Kerala (respondent No.2) have committed an offence under Section 13(d) of the said Act. Both of them have committed offences under the Prevention of Corruption Act, 1988 as well as the Indian Penal Code, 1860. Ms. Sw....
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....and, therefore, petitioner is entitled to seek for registration of FIR, by the official respondents, and to proceed with the investigation. 20. Referring to the schedule under the National Investigation Agency Act, 2008, learned counsel for the petitioner submitted that the agency is empowered to exercise its jurisdiction of investigation into the violations, commissions of offences, insofar as the enumerated enactments are concerned and not otherwise. Referring to sub-section (4) of Section 6 of the Act, he submitted that the said provision does not take away the obligation of the State machinery, to register an FIR for the acts involving outside the jurisdiction of the National Investigation Agency. He also submitted that registration of an FIR under the Customs Act, can only be for recovery of amounts involved and that would not preclude the petitioner from seeking registration of FIR, in respect of offences under the Prevention of Corruption Act or India Penal Code, as the case may be. He further submitted that as a citizen, he has to discharge his duty under Section 39 of the Code of Criminal Procedure, 1973, to furnish information to the police and consequently, demand the....
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.... accused is alleged to have committed, if the offence is connected with the Scheduled Offence. 25. Referring to the averments in paragraph (3) of the Statement off acts, learned Advocate General submitted that except to state that Sprinklr scam was succeeded by two other scams, viz., BevQ App and eMobility Consultancy scams, no details have been given in the statement of facts about the specific instances of involvement of, either the Hon'ble Chief Minister or others. According to the learned Advocate General, the averments are bereft of any materials and do not fall within the definition of corruption and on these bald averments, even an FIR cannot be registered. 26. Referring to the averments in paragraph (13) of the Statement of facts, learned Advocate General submitted that the petitioner has solely relied on the allegations made by the Leader of the Opposition, respondent No.15, in the print and electronic media, and sought for registration of FIR. He further submitted that no document supporting the contention that the Leader of the Opposition, respondent No.15, has made a statement in the electronic media, has been filed along with the statement of facts submitted ....
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....ferred to paragraph (2) of the Affidavit filed under Rule 146A of the Rules, 1971, wherein the petitioner has contended that averments in paragraphs (1) to (21) are based on his knowledge and legal contentions raised are upon the advice of his counsel. He also took us through the averments contained in paragraphs 8, 10 etc., wherein contentions that the writ petition is instituted, as a person aggrieved, still continued. 33. According to the learned Advocate General, except mentioning the name of the scams, no factual details are furnished by the petitioner. Allegations are vague and general, solely based on the statement of the Opposition Leader. Placing reliance on the decision of the Hon'ble Apex Court in Laxmibai Kshetriya v. Chand Behari Kapoor and Ors. reported in (1998) 7 SCC 469, learned Advocate General submitted that writ petition should not be entertained without proper pleadings and substantive material on record. 34. Learned Advocate General further submitted that for a writ of mandamus to be entertained, it is fundamental that there must be a right, a demand, and consequently, failure of duty, by the authorities. According to him, the foundation of the petit....
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.... been filed before the police, but not registered, writ of mandamus is not the appropriate remedy and the issue, as to whether the provisions under the Cr.P.C. have to be followed or not, is answered by the Hon'ble Apex Court in Sakiri Vasu v. State of U.P. and Ors. [(2008) 2 SCC 409], wherein it is held that writ petition under Article 226 of the Constitution of India is not the appropriate remedy. 40. Placing reliance on the decision of the Hon'ble Apex Court in the State of West Bengal and Ors. v. The Committee for Protection of Democratic Rights, West Bengal and Ors. [(2010) 3 SCC 571], learned the Advocate General submitted that necessary and proper facts are not pleaded and the writ petition is politically motivated, based on the alleged statement of the Opposition Leader. On the above contentions, he submitted that the writ petition does not merit any consideration. 41. By way of reply, Mr. Mathews J. Nedumpara, learned counsel for the petitioner, submitted that when the Hon'ble Chief Minister himself has written letter dated 8.7.2020 to the Hon'ble Prime Minister of India and the Hon'ble Minister of Finance, Government of India, that the allegation....
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....inciples of 'qui tam action'- qui tam pro domino rege quam pro se ipso in hac parte sequitur. 45. On the aspect of reference to good faith, learned counsel for the petitioner submitted that the instant writ petition cannot be said to be an abuse and, therefore, the decisions relied on by the learned Advocate General are not applicable. 46. Once again, referring to paragraph (123) of the Lalitha Kumari's case (cited supra), learned counsel for the petitioner submitted that it is simple and the only premise of the petitioner is, as to why FIR has not been registered, despite submission of complaint on 28.03.2020, and why a preliminary enquiry has not been conducted. 47. Learned counsel for the petitioner further submitted that, if reference is made to Section 8 of the NIA Act, 2008, to contend that all other offences can be investigated, State could have made it specifically in writing that all the scams and corruption charges can also be included in the investigation by NIA, which they have not done. He reiterated that NIA can investigate only with reference to the offences mentioned in the enactments to the schedule. 48. According to the learned counsel, sca....
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.... are now investigating the matters relating to the alleged commission of offences under the Customs Act, 1962 and NIA Act, 2008. 53. On the pleadings, submissions, and the decisions relied on by the learned counsel for the respective parties, we deem it fit to address the following points: a) Whether the petitioner, as a matter of right, in a writ petition can seek for registration of FIR. Is there any remedy available to the petitioner to ventilate his grievance, when the police does not register an FIR and whether the writ petition is maintainable? b) Whether the petitioner can seek a direction to handover investigation to CBI or any other Central Agency as a matter of right? c) Whether the petitioner can seek registration of a crime by the Director of National Investigation Agency or the Director, CBI, respondent Nos.10 & 11 respectively? d) Even taking it for granted that the prayers are maintainable on the pleadings and materials, whether the petitioner has made out a strong case for issuing any directions as prayed for? e) Whether the petitioner has made out a case for issuance of a writ of mandamus? 54. From the prayers extr....
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.... quantity of gold was concealed in diplomatic baggage makes the matter extremely serious. It is learnt that customs officials are conducting inquiry into the incident. The case has serious implications as this undermines the economy of the Nation. In fact, it has more than one angle warranting a thorough investigation. It is requested that an effective and coordinated investigation into this incident by all concerned is the need of the hour. The scope of the probe should cover all aspects from the source to the end utilization. Every link of this crime should be unravelled so that such incidents do not recut. I assure you that the State Government will provide all necessary assistance and support to the agencies involved in the investigation. I request your immediate intervention for an effective and coordinated investigation into this crime. Yours Sincerely, Sd/- (Pinarayi Vijayan) Shri. Narendra Modi, Hon'ble Prime Minister of India, 152, South Block, Raisina Hill, New Delhi-110 001." "D.O. No.1131/2020/CM, Dated 08.07.2020 Dear Smt. Nirmala Sitharaman ji, I invite your kind attention....
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....old could be used for financing terrorism in India. And whereas, section 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967 are attracted in this case. And whereas, the Central Government is of the opinion that provisions of Scheduled Offence under National Investigation Agency Act, 2008 are attracted in this case and having regard to the gravity of the offence and its national and international linkages, it is required to be investigated by the National Investigation Agency in accordance with the National Investigation Agency Act, 2008. Now, therefore, in exercise of the powers conferred under subsection (6) of Section 6 read with section 8 of the National Investigation Agency Act, 2008, the Central Government hereby directs the National Investigation Agency to take up investigation of the aforesaid case. Sd/- (Dharmender Kumar) Under Secretary to the Government of India To 1. The Director General, National Investigation Agency, CGO Complex, Lodha Road, New Delhi 2. Chief Secretary, Government of Kerala 3. DGP, Kerala" 58. National Investigation Agency Act, 2008 is an act to constitutean invest....
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....arge of the police station to continue the investigation." 59. Section 8 of the Act deals with the power to investigate offences and the same reads thus: "8. Power to investigate connected offences.- While investigating any Scheduled Offence the Agency may also investigate any other offence which the accused is alleged to have committed if the offence is connected with the Scheduled Offence." 60. As per Section 2(1)(g) - Scheduled offence in the said Act, unless the context otherwise requires, means an offence specified in the schedule. The Schedule to Section 2(1)(g) of the Act reads thus: "1. The Atomic Energy Act, 1962 (33 of 1962); 2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967); 3. The Anti-Hijacking Act, 1982 (65 of 1982); 4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982); 5. The SAARC Convention (Suppression of Terrorism) Act,1993 (36 of 1993); 6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002); 7. The Weapons of Mass Destruction and their Delivery Systems ....
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....re of the business worth hundreds of crores of rupees which was building and further promoted by abusing his official position as the Hon'ble Chief Minister of Kerala. 66. In paragraph (7), the petitioner has stated that the truth of the allegations regarding corruption, abuse of office, smuggling and other illegal activities, involving international mafia, of which the Hon'ble Chief Minister's office is alleged to be nerve center, is required to be investigated effectively and all those, who are involved with the offence, are liable to be brought to book. 67. In the grounds, the petitioner has stated that the Sprinklr, BevQ App and e-Mobility Consultancy scams, in which the 2nd respondent, Sri. M. Shivashankaran, IAS is allegedly involved, and it is alleged that the 1st respondent, Hon'ble Chief Minister of Kerala, is fully aware that, it amounts to offences punishable under Section 13 of the Prevention of Corruption Act, 1988 and Sections 405, 415, 420 and 378 of the Indian Penal Code, Customs Act, and even COFEPOSA Act, for, the said transfer was in furtherance of a design to unjustly enrich, nay, to be gratified at the cost of revenue of the State. These s....
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.... by the Customs (Preventive) Commissionerate, Cochin, in O.R. No.7 of 2020. Even as per the version of learned counsel for the petitioner, Mr. Shivshankaran, IAS, Secretary to the Government, Department of Information Technology, has been summoned and interrogated. In both cases, two central agencies have already taken up investigation. 73. The other allegations pertain to Sprinklr, BevQ App, and e-Mobility Consultancy scams, where the family of the Hon'ble Chief Minister is alleged to have been involved. For the above said allegations, petitioner has solely relied on the statement of the Leader of the Opposition, respondent No.15, which is stated to have been made in the State Assembly, print and electronic media. As rightly pointed out by the learned Advocate General, no document has been produced by the petitioner along with the writ petition to substantiate the same. Even taking it for granted that such a statement is made, the question to be considered is whether that alone is sufficient to direct registration of FIR by the police? 74. It is the submission of the petitioner that in a matter of this nature and magnitude, it is not possible for him to produce evidence,....
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....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 fifteen days generally and in exceptional cases, by giving adequate reasons, six weeks time is provided. 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. 121. With the above directions, we dispose of the reference made to us. List all the matters before the appropriate Bench for disposal on merits." 76. In Aleque Pada....
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....J3283]. 7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences's case (supra) and reiterated in Gangadhar's case (supra) the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumari's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute ....
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....pex Court held thus: "10. It has been held by this Court in CBI and Anr. v. Rajesh Gandhi and Anr. (1997 CriLJ 63) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. 11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be mad....
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.... provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. 16. The power of the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar v. A.C. Saldanna [1980CriLJ98]. 17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, ....
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....rred on the Magistrate under Section 125 Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period. 24. 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. 25. We have elaborated on the above matter because weoften 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 Cou....
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....nd Anr. (2003 CriLJ 3117), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-incharge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate). 30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI v. State of Rajasthan and Anr. (2001 CriLJ 968), R.P. Kapur v. S.P. Singh [1961] 2 SCR 143 etc. Also, the State Government is c....
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....ation has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that- (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charg....
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.... the information given to them, the informant's remedy lies under Sections 190, 200 Code of Criminal Procedure but a writ petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre v. State of Maharashtra (2004) 7 SCC 768: 2005 SCC (Cri.) 404 held: (SCC pp. 77475, para 13). "13. When the information is laid with the police, but no action in that behalf is 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 enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facies case, instead of issuing process to the accused, he is 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 complaint/ evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accuse....
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....54 envisages that "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," On such information being received and reduced to writing, the officer in charge of the police station has been empowered under Section 156 to investigate into the cognizable cases. The procedure for investigation has been given under Section 157 of the Code, the details of which are not material. After conducting the investigation prescribed in the manner envisaged in Chapter XII, charge--sheet shall be submitted to the court having jurisdiction to take cognizance of the offence. Section 173 envisages that: (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) As soon as it is completed, the officer in charge of the police station....
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..... The crux of the allegations is that he has misused his public office to amass assets, disproportionate to his known sources of income. The petitioners have further alleged that respondent No.2 has misappropriated a large volume of public money at the cost of Government of India and Government of Sikkim. The prayers sought for by the petitioners were as follows: "(a) issuance of an appropriate writ in the nature of Mandamus commanding the Director, Central Bureau of Investigation to investigate the awarding of government contracts and/or work orders by the Respondent No. 1 State of Sikkim during the tenure of the Respondent No. 2 as the Chief Minister of the State of Sikkim viz a viz amassing of huge assets and/or wealth by the Respondent No. 2 and his relatives with a direction upon it to submit its report before this Hon'ble Court within a time frame fixed by this Hon'ble Court; (b) issuance of an appropriate writ in the nature of mandamus commanding the Director, Central Bureau of Investigation to investigate the matter against the Respondent No. 2, his relatives and other guilty officials and take appropriate legal action by way of registration of ....
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.... the progress of ongoing investigations or to transfer ongoing investigations from one investigating agency to another. Such directions have been given when a specific violation of fundamental rights is shown, which could be the consequence of apathy or partiality on the part of investigating agencies among other reasons. In some cases, judicial intervention by way of writ jurisdiction is warranted on account of obstructions to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful interests. In all of these circumstances, the writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. However, it is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation. 17. It must also be borne in mind that there are provisions in the Code of Criminal Procedure which empower the courts of first instance to exercise a certain degree o....
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.... to approach the concerned Magistrate Under Section 156(3), Code of Criminal Procedure. If such an application Under Section 156(3), Code of Criminal Procedure. is made and the Magistrate is, prima facie, satisfied, he can direct the F.I.R. 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's 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. 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 concerned Magistrate Under Section 156(3), Code of Criminal Procedure, and if he does so, the Magistrate will ensure, if prima facie he is satisf....
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....have been decided, this doctrine has no place. 53. Once an issue, though present by implication, has not been expressly dealt with and pronounced upon, the judgment on that issue remains sub silentio. Any issue, thus, rendered sub silentio cannot be treated as a precedent. 54. The concept of sub silentio has been explained by Salmond on Jurisprudence, 12th Edn. as follows: 11.[A] decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the Court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentio. 55. In B. Shama Rao v. UT of Pondicherry....
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....he judicial directions is-à-vis an aggrieved person's approaching the High Court. But, disregarding the efficacious alternative remedies under the Code, the complainants insisted that in Lalitha Kumari, a Constitution Bench has cleared the complainant's path of all statutory hurdles to approach the High Court, straight away. 76(a). That apart, on facts, Shine's conduct leaves much to be desired. The record reveals that he complained in writing to the police on 15th January 2018; he filed the writ petition on 16th January, the next day. In fact, the learned Public Prosecutor maintains that Shine approached the police only on 16th January, the complaint bearing the date of 15th January notwithstanding. Without waiting even for the receipt, the Public Prosecutor further contends, Shine rushed to the Court. 76(b). Shine, however, counters the Public Prosecutor's assertion. He insists that he had approached the police on 15th January and that they refused to acknowledge his complaint. So Shine would have us view his approaching the Court the next day as perfectly justified--not to be taken amiss. Elementary is the legal principle that for a writ ....
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.... Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. 71. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. (2002) 5 SCC 521, this ....
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....ained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation." 93. In State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and Others [(2010) 3 SCC 571], a five member Bench of the Hon'ble Apex Court while considering the question as to whether a direction can be issued under Articles 32 and 226 of the Constitution of India by the High Court to investigate a cognizable offence in a State without the consent of the State Government, at paragraph 70, held thus: "70. Before parting with the case, we deem it necessary to emphasis that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has ....
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.... this is not what is required by the law as laid down by this Court in the case of Common Cause." 95. As rightly contended by the learned Advocate General, the petitioner has only mentioned about the names of the alleged scams, viz., Sprinklr, BevQ App. and e-Mobility Consultancy. There are no details in the Statement of facts as to what they are. Except stating that the Hon'ble Chief Minister is involved, abused his position, and his office is alleged to be nerve center, there is nothing in the Statement of facts indicating, which action or inaction of the Hon'ble Chief Minister or the others, against whom allegations have been levelled, have indulged in corruption, attracting the provisions of Prevention of Corruption Act, 1988 as well as the Indian Penal Code, 1860. Although the writ petition has been directed to be instituted as a Public Interest Litigation, the averments remain the same. 96. In Guruvayur Devaswom Managing Committee & Anr. v. C.K.Rajan & Others reported in (2003) 7 SCC 546, the Hon'ble Supreme Court has summarised the principles with respect to filing a Public Interest Litigation and they are reproduced: "(i) The Court in exercise of ....
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.... that angle the court may weigh the circumstances." (See also Dwarka Prasad Agarwal (D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5 SCALE 138) (iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333] (v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply ....
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....r Government Pleader submitted that a public interest writ petition which lacks bona fides, lack of particulars satisfying the requirements of a PIL, deserves to be dismissed with costs. Having regard to decisions considered in Mythri Residents Association v. Secretary, Tripunithura Municipality and Others, [2019 KHC 832], it has been summarised by the journal thus: "(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before en....
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....s has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law. (19) This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services. (20) Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. (21) Courts resolve disputes about legal rights and entitlements. (22) Courts protect the rule of law. (23) There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space. 98. In the light of the principles of law laid down by the Hon'ble Supreme Court as well as this Court, instant writ petition does not satisfy the requirements of a Public Interest Litigation. 99. On the last issues as to whether, the petitioner has made out a strong case for issuance of a writ of mandamus, the learned Advocate General, in order to substantiate his arguments discussed above, relied on various judgments of the....
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....f reasoning of the High Court. The writ petitioners not having made any averments alleging resigning of six of the Field Supervisors after being appointed, the Bank had no obligation to give any reply. In the course of hearing, if a contention had been raised and supporting material produced, then the Bank might have been obliged to file the specific reply but no such material appears to have been produced by the writ petitioners before the High Court and in such context, absence of reply by the Bank does not ipso facto establish the contention raised. It is too well settled that the petitioner who approaches the court invoking the extraordinary jurisdiction of the court under Article 226 must fully aver and establish his rights flowing from the bundle of facts thereby requiring the respondent to indicate its stand either by denial or by positive assertions. But in the absence of any averments in the writ petition or even in the rejoinder-affidavit, it is not permissible for a court to arrive at a conclusion on a factual position merely on the basis of submissions made in the course of hearing. The High Court, therefore, in our view committed serious error in coming to the conclusi....
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....ct the ingredients of commission of a cognizable offence, even this Court cannot invoke the power under Article 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. After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Po....
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....stoms, Excise and Service Tax Appellate Tribunal (for short "CESTAT") was available to the assessee, the writ petition should have been dismissed at the threshold." 7. We find substance in the contention of the learned counsel for the appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case." 109. The petitioner has solely relied on the statement of the Leader of the Opposition and contended that if it is true, the matter requires investigation. As such, he has no evidence or material, and that....