29 October 1996
Supreme Court
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ALL INDIA INST. OF MEDICAL SCIENCES Vs U OI

Bench: K. RAMASWAMY,G.B. PATTANAIK
Case number: SLP(C) No.-020458-020458 / 1996
Diary number: 70560 / 1996


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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.