Full Judgment Text
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PETITIONER:
ALL INDIA INSTITUTE OF MEDICAL SCIENCESEMPLOYEES UNION (REGT
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 29/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This special leave petition has been filed against the
order of the Delhi High Court made on May 14, 1996 in CWP
No.1946/96 directing institution proceeding against one, Dr.
S.K. Kacker, former Director of the All India Institute of
Medical Sciences for the alleged cognizable offence
punishable under Section 409, Indian Penal Code. The
Division Bench refused to issue mandamus to the police to
investigate into the allegations made against the said
doctor.
Shri Deshpande, learned counsel for the petitioner,
contended that the petitioner had laid all the necessary
information before the Director as well as the Minister
concerned and also the Prime Minister bringing to their
notice all the offences committed by the doctor but no
action in that behalf had been taken. As a result, the
petitioner was constrained to move the High Court under
Article 226 of the Constitution to take the steps as
required under the law. The High Court, therefore, was not
right in refusing to entertain the writ petition and giving
directions in this behalf. We find that the stand taken by
the petitioner is not correct in law.
The Code of Criminal Procedure, 1973 (for short, the
’Code’) prescribes the procedure to investigate into the
cognizable offences defined under the Code. In respect of
cognizable offence, Chapter XII of the Code prescribes the
procedure: information to the police and their powers to
investigate the cognizable offence. Sub-section (1) of
Section 154 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
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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 shall
forward to a Magistrate empowered to take cognizance of the
offence on a police report in the form prescribed by the
State Government giving details therein. Upon receipt of the
report, the Court under
section 190 is empowered to take cognizance of the offence.
Under Section 173 (8), the investigating officer has power
to make further investigation into the offence.
When the information is laid with the police but no
action in that behalf was 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 inquire into the complaint as provided in
Chapter XV 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 concerned police to investigate into the offence 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 he
complain/evidence recorded prima facie discloses offence, he
is empowered to take cognisance of the offence and would
issue process to the accused.
In this case, the petitioner had not adopted either of
the procedure provided under the Code. As a consequence,
without availing of the above procedure, the petitioner is
not entitled to approach the High Court by filing a writ
petition and seeking a direction to conduct an investigation
by the CBI which is not required to investigate into all or
every offence. The High Court, therefore, though for
different reasons, was justified in refusing to grant the
relief as sought for.
The special leave petition is accordingly dismissed.
It, however, does not preclude the petitioner to follow
either of the procedure as indicated above, if so advised
and deemed appropriate.