India: Making Section 482 CrPC the sole remedy – Case Study of Madras High Court's judgment in K.Raghupathy v The Commissioner of Police

Last Updated: 14 September 2017
Article by Anuj Berry, Malak Bhatt and Sonali Malik

A Single Judge of the Madras High Court recently, in K. Raghupathy v The Commissioner of Police [Crl.O.P. SR.No. 28352 of 2017] on 10.07.17, held that a petition under Section 482 of the Criminal Procedure Code ("CrPC" or the "Code") for a direction to the police to register an FIR is maintainable, without exhausting the alternate remedies provided in the Code. 

Brief Background

The Petitioner in the aforesaid case, approached the Hon'ble High Court seeking a direction to the Police to register an FIR on the complaint filed by the Petitioner on 13.06.17. The Registry expressed doubts over the maintainability of the present petition in light of another order passed by a Single Judge of the Madras High Court in Sugesan Transport Pvt. Ltd v the Assistant Commissioner of Police [2016 5 CT 577], wherein it was held that such a direction cannot be passed under section 482 of the Code, till the Petitioner exhausts all the alternative remedies as provided in the code.

Section 482 CrPC is the inherent power of the High Court with respect to criminal proceedings and is reproduced below-

482. "Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

Key Observations in K Raghupathy 

The Hon'ble High Court in the K. Raghupathy, observed that Section 482 CrPC, begins with a non-obstante clause and in view of the inherent power therein, there cannot be a total embargo on the High Court's "interminable jurisdiction". Simply put, this means that the availability of an alternate remedy under the Code, cannot prohibit the High Court to exercise its inherent power to secure the ends of justice, especially in light of a non-obstante clause. 

The Learned Single Judge, chiefly relied on principles enunciated in two cases of the  Supreme Court namely, Ramesh Kumari v State (N.CT. of Delhi): [2006 1 CTC 666] and Prabhu Chawla v State of Rajasthan : [CDJ 2016 SC 810].

The Apex Court in Ramesh Kumari, laid down that a ground of alternative remedy would be no substitute in law to refrain from registering a case when a complaint of a cognizable offence is reported to a police officer. Similarly, a Three Judge Bench of the Supreme Court in Prabhu Chawla's case held that even though a remedy under Section 397 CrPC exists i.e. revisionary powers of the sessions Court/High Court, it will not eclipse the inherent powers of the High Court under Section 482 CrPC i.e. there cannot be a total bar on the exercise of the inherent powers where the "abuse of process of the Court, or other extra ordinary situation excites the court's jurisdiction".

On the strength of the above cases, the court in K. Raghupathy held that existence of alternative remedy in no way will abridge the power of the High Court under Section 482 CrPC.

Analysis of the aforesaid decision

At the outset, as per the Code, there is a procedural mechanism prescribed under the CrPC as a remedy available to a person who has a grievance that his complaint is not being registered by the police under Section 154(1) CrPC. Firstly, he may approach the Superintendent of Police under Section 154(3) CrPC.  If the Station House Officer as well as the Superintendent of Police, both refuse to register an FIR, he may under Section 156(3) CrPC, file an application to the concerned Magistrate and avail of his second alternate remedy.

The aforesaid decision of the Madras High Court has indeed raised interesting points in law, each one of them requiring a careful analysis. The analysis of each of the principles evolved by the Madras High Court in K Raghupathy is as follows-

  1. Principle of Exhaustion of Alternate Remedies before invoking Section 482 CrPC

As far as the maintainability of a Petition under Section 482 CrPC, for a direction to the Police to register an FIR on the complaint given by a party without the party exhausting the alternate remedies of the Code is concerned, the proposition has already been settled by Supreme Court in case of Sakiri Vasu v. State of Uttar Pradesh [2008 2 SCC 409]. 

The judgement in Sakiri Vasu, in Para 26, has clearly laid the following-

"If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?"

Further, the Supreme Court in Sakiri Vasu, relying on the Doctrine of Implied Power, even clarified the scope of the power of a Magistrate under Section 156(3) CrPC with respect to directing registration of an FIR, in the following words-

"In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision."

Moreover, the Supreme Court in numerous judgements has held that the the inherent power of the High Court, under Section 482 CrPC, ought not to be invoked where there is a specific provision in the statute to redress the grievance of the aggrieved party. This statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. [See - Madhu Limaye v. State of Maharashtra: 1978CriLJ165 and Raj Kapoor v. State, Kurukshetra University and Anr. v. State of Haryana ]

It is stated that even though presence of alternate remedy does not put an absolute embargo on a petition under Section 482 CrPC, it is an equally well settled principle, that Courts should exercise self-restraint in such cases and the same ought to have been considered by the Madras High Court in the present case.

  1. Blurring the distinction between alternate remedy and procedural mechanism

While referring to the judgment in Prabhu Chawla's case to hold that the availability of an alternate remedy cannot be a bar to the inherent powers of the High Court under Section 482 CrPC, the Madras High Court failed to consider that Prabhu Chawla's case pertained to a discussion regarding an alternate substantive remedy available under Section 397 CrPC while discussing the inherent powers available under Section 482 CrPC. In the said judgment, the Court held that a substantive remedy available under Section 397 CrPC against a judicial order passed by a criminal court cannot be a bar on approaching the High Court under Section 482 CrPC. However, the said ratio cannot be used to set at nought a procedural mechanism prescribed by the Code. By relying on Prabhu Chawla, the Madras High Court has rendered the mechanism prescribed under Section 154 (3) and 156 (3) otiose and given a complete go by to the statutory scheme prescribed under the CrPC.

Moreover, even while relying on Ramesh Kumari's case, the Court failed to consider the facts in the said case which show that the Petitioner in the said case had already approached the Station House Officer and the Commissioner of Police for filing of a complaint before approaching the High Court.

Conclusion

While the settled position of law states that the power under Section 482 CrPC cannot be resorted to if there is a specific provision in the CrPC for the redressal of grievance of the aggrieved party, the Madras High Court has given a go by to the procedure under Section 154/156 CrPC and given a higher pedestal to the inherent powers under Section 482 CrPC.

It ought to be remembered that power under Section 482 CrPC, can be exercised only to "secure the ends of justice" and to prevent "the abuse of the process of court". However, such phraseology does not confer unlimited and arbitrary jurisdiction on the High Court. The High Court ought not to have by-passed the procedure prescribed in the CrPC in the wake of inherent powers of the Court, which in any case have to be sparingly exercised. Seen in light this, it will be interesting to see the number of cases that end up directly before the High Court for registration of an FIR and whether the Supreme Court sets right the defects in the Madras High Court's judgment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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