ALL INDIA INSTITUTE OF MEDICAL SCIENCES EMPLOYEES UNION (REGD.) THROUGH ITS PRESIDENTversusUNION OF INDIA AND ORS.

A         ALL INDIA INSTITUTE OF MEDICAL SCIENCES
       EMPLOYEES UNION (REGD.) THROUGH ITS PRESIDENT
                              v.
                   UNION OF INDIA AND ORS.

                              OCTOBER 29, 1996
B
              [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

         Code of Criminal Procedure, 1973:

         Sections 157, 173, 190, 200, 409-Complaintfiled against Doctor
C by the Employees Union for an alleged offence punishable under S.409-
  No action taken by Police-Complainant could have adopted the procedure
  laid down under Sections 190 rlw. Section 200-Without doing so it
  approached the High Court seeking a direction to conduct an investigation
  by the CBI-High Court dismissing the writ petition-Without availing
D the remedy under Section 190 rlw 200 complainant not entitled to approach
  the High Court-Constitution of lndia...,-Art.226.

         CIVIL APPELLATE JURISDICTION : Special Leave Petition (C)
    No. 20458 of 1996.

E        From the Judgment and Order dated 14.5.96 of the Delhi High Court
    in W.P.No.1946 of 1996.

         S.V. Deshpande and Pramit Saxena for the Petitioner.

F        The following Order of Court was delivered :

        This special leave petition has been tiled against the order of the
  Delhi High Court made on May 14, 1996 in CWP No. 1946/96 directing
  institution proceedings against one, Dr. S.K. Kacker, former Director of
G 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
H the petitioner had laid all the necessary information before the Director as
                                        138
              AIIMS EMPLOYEES UNION (REGO.) v. U.0.1.                    139


well as the Minister concerned and also the Prime Minister bringing to          A
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 Constituti1in 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.                   B

       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    C
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        D
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
cognizable cases. The procedure for investigation has been given under
Section 157 of the Code, the details of which are not material. After           E
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: {I) 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 Megistrate empowered to take cognizance of the       F
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.
                                                                                G
      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 Megistrate is
required to inquire into the complaint as provided in Chapter XV of the         H
    140                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A 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 thatthe complain/
B 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
C   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.
            I                              .
          Tiie special leave petition is accordingly dismissed. It, however, does
D   not preclude the petitioner to follow either of the proced~re as indicated
    above, if so advised and deemed appropriate.

    G.N.                                                     Petition dismissed.