TaxTMI 
TaxTMI 
2018 (5) TMI 2097
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....r the court. Acting on such complaint, a competent criminal court takes cognizance and decides to try the matter. But others persist with police complaints. 2. When the police allegedly refused to register a crime, they approached this Court. They contend that only police could unravel the crime. A learned Single Judge allows the writ petition; the police act on the judicial directive and register a crime. In the appeal, the aggrieved office bearers question that direction. 3. Can the impugned judgment be sustained? Do the complainants have any efficacious alternative remedies available to them, for the public-law remedy is the last resort in private affairs? Facts in Brief: (a) W.P.(C) No. 5522 of 2018 4. Shine Varghese is a member of Ernakulam-Angamaly Arch Diocese, which conducts its affairs, Shine claims, as per the Code of Canons of the Eastern Churches, ("the Code of Canons") and its bye-laws. Those Cannons and bye-laws also cover the ecclesiastical elements-church's properties. 5. Diocese's Arch Bishop is Mar George Alancherry; its finance officer is Fr. Joshy Puthuva, a priest and one of the Pro-Vicar Generals is Fr. Sebastian Vadakkumpadan. 6. ....
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....the expected sale price. And Fr Joshy admitted before the Financial Council on 13.09.2017 that he had received Rs. 26 crores, but credited to the Diocese's account Rs. 8,00,00,000/- only. 12. With the allegations of criminal breach of trust and misappropriation breaking out in the open, Fr Joshy was constrained to appoint an in-house inquiry committee. The committee, asserts Shine, conducted a detailed inquiry and unearthed the misdeeds of the Arch Bishop, the two priests and Saju, the realtor: those misdeeds are offences under sections 120B, 406 and 415 IPC. 13. Damning as the report had been, the Diocese did not, Shine alleges, desire to bring the culprits to book. So Shine, a parishioner, took upon himself the task of prosecuting the perpetrators: he filed the Ext. P1 complaint before the Station House Officer, Central Police Station, Ernakulam. But the SHO refused to register a crime, nor did he issue a receipt, his refrain being that "he had instructions from higher-ups" not to register any crime concerning "Syro-Malabar Church Land-deal issue." Even the Commissioner of Police, Kochi, has not entertained Shine's request. So Shine filed WP (C) No. 5522 of 2018, se....
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....vations about the police officer's refusing to register a crime, despite the allegations making out a cognizable offence. Besides referring to copious case laws, the learned Senior Counsel has asserted that Lalita Kumari v. State of UP (2014) 2 SCC 1 has not done away with the settled principles of law that the police refusing to register a crime, the complainant must take recourse to other provisions of the criminal procedure code, rather than rushing to the High Court. According to him, Lalita Kumari deals with an entirely different issue: have the police got any discretion to indulge in a preliminary enquiry, without registering a crime even if the complaint prima facie reveals a cognizable offence? 21. On the technical front, Shri Viswanathan stressed on issue estoppel. He pointed out that before Shine, three others had lodged similar complaints and raised identical issues: that the appellants have committed a crime. The circumstances are the same, the allegations are identical, and the accused, too, are the same. According to him, in one instance, a competent criminal court has ruled that the matter is of "civil in nature." So issue estoppel, he asserts, applies on all ....
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....ed Senior Counsel has submitted that the appellants, as the accused, have a multitier-protection and could assail the investigation, the enquiry, and the trial of the crime as well, whenever they find justifiable grounds. 27. Heard Shri K.V. Visvanathan, the learned Senior Counsel for the appellants in WA Nos. 626 and 642 of 2018, Shri K.V. Sabu, the learned counsel for the appellant in WA Nos. 632 and 638 of 2018, Shri Varghese C. Kuriakose, the learned counsel for the appellant in WA No. 625 of 2018; the learned Public Prosecutor; and Shri B. Raman Pillai, the learned Senior Counsel for the complainant, besides perusing the record. Analyses: What is the Grievance? 28. A member of a Christian congregation, a Diocese, complains to the police about the office bearers' alleged misdeeds amounting to cognizable offences. On the very same day or the next day, he files a writ petition. He alleges that the police have refused to register an FIR. So he wants this Court to direct the police to register a crime and investigate it. The Issues: 29. (I) This Court, per a learned Single Judge, entertained the writ petition under Article 226 of the Constitution; a learned Si....
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....18 in W.A. No. 628 of 2018] It has examined Clause 10 of the Letters Patent vis-à-vis Kerala High Court Act, and has held that the Division Bench has examined Ram Kishan Fouji in which the Supreme Court considered clause-10 of the Letters Patent as applicable to the erstwhile Punjab & Lahore High Courts. The Bench has also observed that clause-10 is in pari materia with clause-15 of the letters patent as applicable to Madras High Court. Eventually, the Division Bench has examined clause-15 of the letters patent of the Madras High Court vis-à-vis Section 5 of the Kerala High Court Act. Section 5 of the Kerala High Court Act mandates that an appeal shall lie to a bench of two judges from "(i) a judgment or order of a Single Judge in exercise of original jurisdiction), and (ii) a judgment of a Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in exercise of original jurisdiction by a subordinate court." Thereafter, drawing parallels between clause-15 of Letters Patent and Section 5 of Kerala High Court Act, the Division Bench has held that the restrictions contained in clause-15 of the Letters Patent are deliberately not incorpora....
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....on.)] puts it more pithily: An affirmative defence barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one. 37. Lord Diplock, in Mills v. Cooper, (1967) 2 Q.B., 459 has noted that an "issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation. That general rule applies also to criminal proceedings, but in a form modified by the distinctive character of criminal as compared with civil litigation. Here it takes the form of the rule against double jeopardy...." 38. The issue of estoppel stands merged, as observed by the Supreme Court, [State of Jharkhand v. Lalu Prasad Yadav, (2017) 8 SCC 1] in the principles of Autrefois acquit and Autrefois convict, both of which find enshrined in article 20(2) and section 300 Cr.P.C. Indeed, issue estoppel, a common law doctrine, has been well-entrenched and oft-applied to criminal proceedings. The courts in India, too, have applied this principle at all levels--Apex to trial courts. 39. That said, we ought to necessarily observe that given our finding on maintainab....
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....f the Code is mandatory, and the officer concerned must register the case if the information discloses cognizable offence. If the police have latitude, an option or discretion in registering an FIR, that latitude will entail serious consequences affecting the public order, besides hurting the victim's rights. For sure, reasonableness or credibility of the information is not a condition precedent for the police to register a case. 44. Lalita Kumari equally emphasises the prompt, timely investigation by the police. Though the registration of FIR is compulsory, the immediate arrest of the accused is not. Yet Lalita Kumari recognizes exceptions to the mandatory crime-registration. In certain cases the police may hold a preliminary inquiry before their registering an FIR. The categories of cases requiring preliminary inquiry (to be completed in a week's time) are--not exhaustive, though--these: (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 expl....
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.... any issues sub silentio? 50. One of the age-old maxims of organic law is that "[w]hat is not judicially presented cannot be judicially considered, decided, or adjudged." [Id.] 51. As seen above, Lalita Kumari concerns the statutory compulsion on the police to register an FIR if they are presented with a written complaint making out a cognizable offence. It does not, at any rate, mandate that the aggrieved complainant could rush to High Court on the police's refusing to register a crime. Much less has it enabled the suitors to ignore the other statutory safeguards available to them and insist on a public-law remedy--especially a remedy under Art. 226, at that. 52. In other words, that issue--what are the courses open to a complainant if the police refuse to register an FIR?--has neither been raised nor answered in Lalita Kumari. Granted, sub silentio is an established legal doctrine in ascertaining the precedential value of a decision. But, unless the court left undecided an issue that ought to 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 i....
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....iting 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. (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.], in Chapter XII, of the Code deals with "Information to the Police and their Powers to Invest....
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....d the case at all, or have not done it satisfactorily, she can issue a direction to the police to investigate the crime properly and can monitor it, too. Sakiri Vasu also observes that the Magistrate's power to order further investigation under section 156(3) is an independent power and does not affect the investigating officer's power to further investigate the case even after his submitting the report under section 173(8) of the Code. 61. If the police, at any level, refuses to act, the complainant can act under section 190 [Section 190. (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 as are within his competen....
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....o police as improper and ineffective. Perhaps, he felt what should happen ultimately should not happen early. The police investigation prolonged and the trial tarried, the complainant, in some cases, is satisfied. Here, too, some parishioners persisted that police should investigate. But this Court played the spoilsport! It dismissed the OP. At this stage, we need not go into the logomachy of 'inquiry' and 'investigation', much less 'trial'. Suffice it to say that the first complaint has been very much pending and progressing. (b) Second Complaint: 64. One Polachan Puduppara filed another complaint, said to be identical, on 20th January 2018. It was dismissed on 2nd February 2018. (c) Third Complaint: 65. Martin Payyappilly lodged another complaint. He took the route as Shine did: he filed W.P.(C) No. 5997 of 2018, complaining against the alleged police inaction. And that writ petition was disposed of on the same lines of Shine's. But the record reveals that, soon after Martin lodging the complaint, the police recorded his statement on 5.2.2018. He did not reveal that in the writ petition. In fact, the learned Public Prosecutor produced befor....
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....mplaint." 70. Finally, relying on Lalita Kumari, the impugned judgment holds that when a complaint reveals a cognizable offence, "the police officer has no other go than to register a crime." The judgment further holds that any other decision before Lalita Kumari on this issue survives no longer. 71. We have already discussed Lalita Kumari and extracted its holding. We have also held that Lalita Kumari has not dealt with the remedies available to an aggrieved person on whose complaint about a cognizable offence the police have not acted. In fact, Lalita Kumari has only dealt with the issue whether the police could exercise their discretion and indulge in any preliminary enquiry before they register a crime. Therefore, the precedents speaking on a complainant's alternative remedies have not been set at naught. They still hold the field. That said, we must now examine the precedential position on that issue. Refusal to Register a Crime-the Alternative Remedies: 72. Given the statutory scheme, in Aleque Padamsee v. Union of India (2007) 6 SCC 1, the Supreme Court, after referring to its many earlier decisions, has observed that whenever the police receives any informat....
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.... 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 satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation." (italics supplied) 75. The writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. The writ court, however, will not initiate 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. It must also be borne in mind that there are p....