In late February, a PIL was filed in the Delhi High Court by Mr. Harsh Mander, seeking registration of FIRs against several political leaders for alleged inflammatory speeches, which as per him instigated the riots in North-East Delhi. In the affidavit submitted by Delhi Police, inter-alia, the maintainability of the PIL was challenged. It contended despite there being alternative remedies available, the petitioners invoked jurisdiction under Article 226 of the Constitution and directly approach the Delhi High Court to get the FIRs registered. On 27th July, the PIL was withdrawn by the Petitioner so that he could approach Judicial Magistrate under Section 156(3) of The Code of Criminal Procedure, 1973 (for short the “CrPC”).
The main grievance in the PIL was that the Police were refusing to file FIRs even when the alleged speeches constituted a ‘cognizable offence’. As per the Constitution Bench judgment of the Supreme Court in ‘Lalita Kumari v. Govt. of U.P. [(2014) 2 SCC 1]’, they are bound to do so. Although the law laid down in Lalita Kumari is incontrovertible, can a High Court, sitting in its Writ Jurisdiction, direct the Police to register FIRs? To answer this question, let us examine the legal provisions and precedents regarding the same.
Section 154(1), CrPC provides for registration of an FIR whenever any information relating to the commission of a cognizable offence is given to the police. If the officer in charge of the Police Station refuses to do so, the aggrieved person may reach out to the Superintendent of Police under Section 154(3), who if satisfied, can either investigate the case himself or direct it to a subordinate officer. If the Superintendent of Police is not satisfied, the aggrieved person can knock the doors of the Judicial Magistrate under Section 190(1), CrPC, who may either take cognizance and proceed with the complaint and issue process to the accused or direct the Police to investigate under Section 156(3). Before taking cognizance, Section 200 requires the Magistrate to examine upon oath the complainant and the witnesses present, if any, and reduce the substance of such examination to writing, which has to be signed by the complainant, witnesses and himself. If Magistrate is not satisfied, he may dismiss the complaint as per Section 203, CrPC.
Now, on the question of refusal of the Magistrate to take cognizance, in ‘Shiv Singh vs State of M.P. [(2009) Cri LJ 4217 (MP)]’, it was held that if the Magistrate refuses to register a complaint, the revisionary power of the Sessions Court could be invoked as per Section 397, CrPC seeking an order under Section 156(3) to the police to register and investigate the case. If no relief is granted, the inherent power of the High Court can then be invoked under Section 482, CrPC. In ‘Nishu Wadhwa vs. Siddharth Wadhwa & Ors. [236 (2017) DLT 612]’, the Hon’ble Delhi High Court also held that a revision petition can lie against the order of the Magistrate rejecting a petition, under Section 156(3).
One may think that the instant case is of wide importance and hence the High Courts can use their wide discretionary powers under Article 226 of the Constitution, but they are bound by the precedents set by the Supreme Court, as per Article 141 of the Constitution. The law was settled in ‘Sakiri Vasu vs State of U.P. [(2008) 2 SCC 409]’, wherein it was observed by the Apex Court that when someone has a grievance that their FIR has not been registered or investigation not done, they rush to the High Court by filing a writ petition without exhausting the available remedies. It was opined that such practices should be discouraged and the High Courts should not interfere. While it is true that the Lalita Kumari (supra) judgment came later and was delivered by a bigger bench, it is apposite to recall that it did not discuss the Sakiri Vasu (supra) case. Police indeed have no choice but to register an FIR in cognizable offences, as per Lalita Kumari (supra), but it is also true that the High Courts should not be approached by way of a writ petition to direct the Police before all the remedies are exhausted.
Quite recently, a 3-judge Supreme Court bench in ‘M. Subramaniam and Anr. vs S. Janaki and Anr. [Criminal Appeal No. 102 of 2011]’ reiterated the observations made in Sakiri Vasu (supra) and set aside a High Court order which had directed the police to register an FIR. The Court also mentioned another Supreme Court judgment ‘Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage [(2016) 6 SCC 277]’ where it was held that if the High Courts entertain such writ petitions, it will be flooded with only this, hence, the petitioners “must” avail the alternative remedies. The High Court order was not set aside by the Apex Court on its merits, but only on the issue of jurisdiction.
A strikingly similar case was heard by the Apex Court, reported as ‘Aleque Padamsee And Ors. Vs. Union of India and Ors [(2007) 6 SCC 171]’ where the accused allegedly made hate speeches which had disturbed the communal harmony of the society, but the Police refused to register the FIR. The Court, without commenting upon the merit of the case, held that a Writ Petition can not be maintained when there are alternative remedies available.
In light of the following precedents, it is now amply clear that even if Mr. Harsh Mander had not withdrawn the plea, the Hon’ble Delhi High Court could not have directed the police to register FIRs. This reminds me of a courtroom exchange between the Chief Justice of Delhi High Court, Justice D.N. Patel and Sr. Advocate Colin Gonsalves, who appeared for Mr. Mander in the PIL. Before starting his arguments, Mr. Colin in a lighter vein said that recently the Bench has not been with him and denied him relief on several occasions, to which a smiling Chief Justice replied: “Mr. Counsel, we are always with you, but sometimes the facts and law are not!”.
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