Public remedy is last resort in private affairs, complainant cannot insist on writ remedy disregarding alternate remedy provided under CrPC

Kerala High Court:If there be truth in what they allege, the long arm of the law will surely reach whatever recess the crime lurks in”, pronounced Dama Seshadri Naidu, J. while holding that if an efficacious alternate remedy is available under the code or statute concerned (CrPC in this case), the complainant cannot disregard such remedy and move the writ jurisdiction of the High Court. The learned Judge spoke for himself and Antony Dominc, CJ.

The matter related to the allegations of financial irregularities by the Arc Bishop, Financial Officer and Pro-Vicar General of Diocese (a district under the pastoral care of a bishop in the Christian Church). Some members of the Diocese complained to the police regarding the matter. However, the police refused to act on such complaint filed against the Arc Bishop and priests. Aggrieved by the inaction of the police, the members filed writ petition before the High Court. A learned Single Judge allowed the writ petition and directed the police to register a crime and start investigation. The appellants preferred the instant appeal contending inter alia that the petition was not maintainable as an alternate remedy was present to the complainants under CrPC.

The Division Bench speaking through Naidu, J. noted the elementary legal principle that for a writ of mandamus to be maintained, the suitor must establish before the Court: (a) that there existed a right; (b) that it has been infringed or threatened to be infringed; (c) that the person aggrieved complained to an authority; and (d) that the authority concerned refused to act. However on facts of the case, the Court noticed that the complainant rushed to the Court posthaste, before the ink dried on the paper, as if it were. The Court found it hard to believe that there was proper demand and refusal, the essential elements for a Mandamus. Moreover, in case the police refuse to register the complaint, the aggrieved person has a remedy under Sections 154 and 156 CrPC to approach the Superintendent of Police or a Magistrate empowered under Section 190 to order an investigation. The High Court held that the complainant faltered at the first hurdle – the alternative remedy. Therefore, the Court allowed the appeal and set aside the impugned order passed by the learned Single Judge. [Fr Sebestian Vadakkumpadan v. Shine Varghese,2018 SCC OnLine Ker 1785, order dated 22-5-2018]

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