Tuesday, 31 May 2022

registration of FIR in case of commercial fraud

                                 SHORT NOTE ON LEGAL OPINION 

FACTS:

Pawan Kumar is enjoying the exclusive peaceful possession of a commercial property for the last 2 years. However, there is some dispute over the property with his business partner Sunil Jha. Sunil Jha first approached civil court but later on withdrew the case as he apprehended that he may not prove his rights in the court for the reasons that the documents with him are not bona fide. Therefore, he approached the local police & there appear to be some deal with police with this. Police called Pawan Kumar to police station & asked him to vacate the premises & handover the keys to Sunil  Jha. Pawan Kumar refuse to do so. Police registered a false case under Arms Act by showing that Pawan Kumar was found to have illegal revolver & knife. Took him in custody & beaten him mercilessly. Pawan Kumar after having got bail in the matter, filed a complaint against the SHO & other concerned police officers. But no F.I.R. was registered. He also made representation to the superintendent of the police. But in Vein. Pawan Kumar want to file a writ in High Court directing police to register the F.I.R. on his complaint against the SHO & other named police officers. 

ISSUE:

What is the probability that the High Court will order for registration of the F.I.R. 

LEGAL ASPECT:

A person can approached High Court under section 482 of Code of Criminal Procedure  & article 226 of the Indian Constitution. Section 482 of Code of Criminal Procedure give inherent power to High Court to make such orders as may be necessary to give effect to any order to prevent abuse of the process of any court or otherwise to secure the ends of justice. Article 226 of the Indian Constitution, power of High Court to issue certain writs. The power is extraordinary & of inherent nature & same cannot be invoked when there are specific power in Code of Criminal Procedure for dealing with a situation. A petitioner under section 482 seeking direction for the registration for the registration of F.I.R. not maintainable under petitioner exhausted remedies under section 154 (1), 154 (3) & 156 (3) of Code of Criminal Procedure, i.e.

  • Petitioner first approach the police station under section 154 (1) with his information

  • Then if dissatisfied make written representation under section 154 (3) of Code of Criminal Procedure to Superintendent of Police or Deputy Commissioner of Police

  • Even if not satisfied, approach the court of magistrate under section 156 (3) of the Code of Criminal procedure for direction  to the police station to register the F.I.R. & investigate the case.

JUDGEMENTS: 

There are multiple cases where court refuse to entertain such cases. In the case of Sakiri Vasu V. State of U.P. (2007) Supreme Court held that the High Court should not encourage this practice & should ordinarily refuse to interfere in such matters & relegate the petitioner to his alternative remedy. Another judgement in the case of Sudhir Bhaskarrao Tambe V. Hemant Yashwant Dhage (2016) Supreme Court held that the remedy of the aggrieved person is not to go to the High Court under article 226 of the Constitution of India but to approach the Magistrate concerned under section 156 (3) of Code of Criminal Procedure. In the case of M. Subramaniam V. S. Janaki (2020) Supreme Court held that if a person has a grievance that the police station is not registering his F.I.R. under section 154 of Code of Criminal Procedure, then he can approach the Superintendent of Police under section 154 (3) of Code of Criminal Procedure by an application in writing. Even if not satisfied, in case of F.I.R. not been registered or no proper investigation has been conducted. He approach to the court of Magistrate under section 156 (3) of Code of Criminal Procedure. 

WHEN TO APPROACH HIGH COURT:

There are several instances where petitioner approach High Court to register their F.I.R. when they are aggrieved by alternative remedies. There are some condition that need to satisfied in order to approach High Court, i.e.

  • When the magistrate has refused to order under section 156 (3) of Code of Criminal Procedure. 

  • Despite order of the magistrate under section 156 (3), F.I.R. is not registered 

  • If the police fail to complete preliminary enquiry within 6 weeks as mandated by Supreme Court in the case of Lalita Kumari V. State of U.P. (2013)

In such situation, one can approach High Court under section 482 of Code of Criminal procedure read with article 144 of the Constitution. In such cases Court does not look into the complaint but issue direction to police to register F.I.R. on the complaint for the very failure of the police to follow the mandate of Supreme Court in the Lalita Kumari V. State of U.P. (2013). 

In the case of Aleque Padamsee V. Union of India (2007) Supreme Court held that any person aggrieved by the inaction of the police officials in registering the F.I.R., the modalities contained in section 190 read with section 200 of Code of Criminal Procedure are to be adopted & observed. It is open to any person aggrieved by the inaction of the police officials to adopt the remedy.

The scope content & ambit of the inherent power conferred on the High Court under section 482 of the code of Criminal Procedure refer to Divine Retreat Centre V. State of Kerala (2008) the Supreme Court held that there are 3 circumstances under which the inherent jurisdiction may be exercised,

  • To give effect to an order under the code of Criminal Procedure

  • To prevent abuse of the process of law

  • To secure the ends of justice

There may be extreme rare cases the remedy under section 156 (3) may be avoided if the case is shown to be- 

  • One of the rare of the rarest case

  • Extremely shocking & ugly offences

  • Extremely official apathy & indifference 

  • Need to answer the judicial conscious

  • Existence of hostile environment 

The court also laid down that the principle of alternative remedy is a rule of convenience & not a rule of law

In the case of Maharashtra Chess Association V. Union of India (2019) Supreme Court held that mere existence of alternate forum where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is the factor to be taken into consideration by the High Court amongst several factors. In the case of Sugeshan Transport PVT. LTD. V. Assistant Commissioner of Police (2016) Madras High Court held that the court will entertain an application under section 482 of Code of Criminal Procedure 

  • On the failure of the police to follow the time table in Lalita Kumari case

  • Not paying heed to the order passed by the Magistrate under section 156 (3) of Code of Criminal Procedure

CONCLUSION:

The petitioner need not to rush to High Court, petitioner should firstly avail alternative remedy under section 154, 154 (3) & 156 (3) of the Code of Criminal Procedure. In the case of exhaustion of above mentioned remedy, petitioner can approach the High Court under section 482 of the Code of Criminal Procedure and article 226 of the Constitution of India. 

The Court also stated the reason why court should not encourage such cases. High Court has power to quash the F.I.R. on one hand hand High Court direct F.I.R. to be registered, on the other hand, the other side may approach with another petitioner for quashing the F.I.R. 

Under such circumstances, High Court will be a laughing stock in the eyes of the public.

OPINION:

 The fact of the case directly indicate that Pawan Kumar already exhausted his alternative remedy, as he approached police station with information under section 154 of the Code of Criminal Procedure also approached Superintendent of police with application in writing under section 154 (3) of the Code of Criminal Procedure. A responsible counsel I advised Pawan Kumar to approach court of Magistrate under section 156 (3) of Code of Criminal Procedure in order to take relief and ask for order to register his F.I.R, to initiate investigation of the concerned case. If in case, he is not even satisfied by the magistrate Court he can approach High Court under section 482 of Code of Criminal Procedure. 




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