Custodial Death | Lalita Kumari Judgment Does Not Say Deceased's Kin Can Directly Invoke A.226 Over Failure In Lodging FIR: Gujarat HC

The Gujarat High Court dismissed a petition seeking immediate registration of an FIR in an alleged custodial death case of a man, while permitting the kin of the deceased to take recourse to the statutory remedies available to them under BNSS.In doing so the court observed that while Supreme Court's Lalita Kumari v. Government of Uttar Pradesh judgment mandates registration of an FIR when a cognizable offence is disclosed, it does not provide a separate mechanism if police refuses to lodge an FIR nor there is a mandate provided that on failure of lodging an FIR the next of kin can directly invoke Article 226 jurisdiction of the high court. In doing so the court referred to a recent Supreme Court decision in Sujal Vishwas Attavar v State of Maharashtra, wherein it was observed by the apex court that Writ Jurisdiction under Article 226 of the Constitution cannot be invoked at the first instance to seek direction for registration of an FIR.Justice DN Ray observed that if allegations are taken at face value wherein the case alleged that "despite the custodians of personal liberty being themselves accused of gross violation of the same and violence against members of the society, they were supposed to protect", the question would be whether due to non-registration of FIR by police against their own ilk can the court's writ jurisdiction be invoked to implement mandate of Lalita Kumari judgment Referring to various decisions the court said:"The line of the aforesaid decisions, culminating in Attavar's case are to the effect that once, for whatever reason, despite the disclosure of a cognizable offence, in the information provided by the informant to the police authorities, the police refuse to lodge an FIR following the mandate of Lalita Kumari (Supra), there is no mechanism provided in Lalita Kumari. There is no mandate in Lalita Kumari(Supra) or in any other judgment of the Hon'ble Apex Court by which, on the failure to lodge an FIR, a potential victim/next of kin can approach a High Court directly under Article 226 of the Constitution of India. Instead, the procedure prescribed under the Cr.P.C/(now B.N.S.S.) is the statutory remedy provided by Parliament. In fact, as held in Subramanyam (Supra), not only should a writ Court not interfere unless it can be shown that the petitioner has exhausted his statutory remedy, but there are instances where upon such interference, the decision of the Hon'ble High Court has been quashed and set aside by the Apex Court"The court said that where custodial death is concerned, the only issue was whether the High Court can make an exception to the well settled position and direct the registration of an FIR. The court observed that even if it holds that the Commissioner of Police maybe biased in an alleged custodial death case and would not be inclined to register an FIR which would tarnish the image of their own department, it however cannot automatically include the Magistrate to whom an appeal from the decision of the Commissioner of Police would lie, in the same bracket. "Although none of the decisions of the Hon'ble Apex Court, relying upon Sakiri Vasu (Supra) have considered the said aspect in as many words or have considered the strain put upon the statutory remedy by the event of a custodial death, that by itself does not pursuade me to carve out a “custodial death” as an exception to the statutory process envisaged to redress a situation where Lalita Kumari(Supra) is not followed in letter and spirit. While it is also true that Lalita Kumari not only mandates the law within the meaning of Article 141 of the Constitution of India, but it also mandates, under Article 144 of the Constitution of India, that every civil or other authority, acting in aid of the Hon'ble Supreme Court shall follow the mandate of Lalita Kumari (Supra) to register an FIR in a cognizable offence disclosed on the face of the allegations of the proposed informant. The fear and the mischief is to the effect that the moment there is an allegation against the police authorities which is brought before the police authorities, instead of registering an FIR which would lend credence to the version of the informant, the police authorities would simply investigate whatever else and in whatever manner it would choose, to stifle the inconvenient truth"In Sakiri Vasu the apex court had held that an aggrieved person must avail the statutory remedies provided under criminal law before approaching the High Court.The court said that on such a premise it would have ordinarily thought that the most natural and effective remedy would have been a writ petition to implement the directions of Lalita Kumari. However the court found there were a catena Supreme Court decisions which follow the earlier decision of Sakiri Vasu which holds that the remedy for non-registration of an FIR is merely statutory in nature and the involvement of the writ Court to implement Lalita...

Custodial Death | Lalita Kumari Judgment Does Not Say Deceased's Kin Can Directly Invoke A.226 Over Failure In Lodging FIR: Gujarat HC

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Custodial Death | Lalita Kumari Judgment Does Not Say Deceased's Kin Can Directly Invoke A.226 Over Failure In Lodging FIR: Gujarat HC

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