JUDGMENT
K.A. Swami, C.J.
1. This appeal is preferred against the order D/- 16-8-1996 passed by the learned single Judge, rejecting W.P. No. 11429 of 1996, in which the petitioner has sought for issue of a writ in the nature of mandamus directing the respondent to undertake full investigation and launch prosecution on the basis of the complaint given by it on 20th May, 1996 and to pass such other orders as are deemed necessary.
2. According to the case of the petitioner, there has been a criminal embezzlement committed by one Arjunan, who acted dishonestly and committed Criminal breach of trust and misappropriated to the tune of Rs. 2,05,350/-. The respondent has informed the petitioner as follows :-
“As there is no penal offence, further action was dropped on your complaint. This is for your information.”
3. It is contained very strenuously that as the complaint filed before the respondent disclosed the Criminal offence of misappropriation and fraud, it was the bounden duty of the respondent to investigate and file a charge-sheet.
4. It may be pointed out here that if the respondent has failed to perform his duties, nothing prevents the petitioners to approach the Magistrate and file a complaint requesting him to take congnisance of the offence and direct the Police to investigate into it and file a charge-sheet. It is not necessary that this Court should exercise in each and every such case jurisdiction under Article 226 of the Constitution and to issue a direction to the investigating agency.
5. In the decision in S. N. Sharma v. Rupen Kumar Tiwari reported in, , there was a complaint before the Police Station Cantonment, Gorakhpur, alleging that certain goondas attacked the respondent, in pursuance of which the Police started the investigation. The appellant moved an application before the Judicial Magistrate for invoking the provisions of Section 159 of the Code of Criminal Procedure and for conducting the inquiry. The Magistrate directed the Police to stop the investigation and decided to hold the inquiry himself. An application was filed in the High Court under Section 561-A of the Code of Criminal Procedure for quashing the order. The High Court allowed the application and quashed the order of the Magistrate holding that the Police was at liberty to investigate and submit a report. The Supreme Court reversed the order of the High Court and held as follows :-
(i) In sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190 is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate.
(ii) Section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence.
(iii) Though the Code of Criminal Procedure given to the police unfertered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a Writ of Mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code. Therefore, it is open to the petitioner/appellant to apprach the Jurisdictional Magistrate.
6. The decision in A. S. V. Varadachariar v. Commissioner of Police, Egmore, Madras, reported in 1969 (II) MLJ 1 : (1968 Cri LJ 1650), is not applicable to the facts of the case. That was a case in which the petitioner prayed for issue of a writ of mandamus directing the Commissioner of Police to secure to him peaceful and quiet enjoyment of the property by removing the persons, who were unlawfully remaining on the property. The Commissioner of Police raised a plea that whether police action is necessary in this regard or what action should be taken, was within the discretion of the Police. A learned Single Judge of this Court held that it was the duty of the Commissioner of Police to determine whether the continued presence of the hut dwellers amounted to criminal trespass and if he were to come to that conclusion, it was clearly his duty to evict the trespassers. Such a position does not obtain in the instant case.
7. Similarly, it is not possible to apply the decision of a learned single Judge of this Court in Messrs India Match House v. Commissioner of Police, reported in 1988 LW (Crl.) 288, in which a petition was filed, seeking a direction to the Commissioner of Police and the Inspector of Police to exercise their statutory powers under the Code of Criminal Procedure and the Madras City Police Act, to deal with the trespassers referred to in the affidavit filed in support of the petition and to restore to the petitioner possession of the premises, after removing the trespassers. Thus, this case is also similar to the one decided in A. S. V. Varadachariar’s case 1969 (II) MLJI) : (1968 Cri LJ 1650). The reasons stated by us for not applying the said decision will equally apply to this decision also.
8. For the reasons stated above, we are of the view that a substantial remedy is open to the petitioner/appellant to seek appropriate direction from the jurisdictional Magistrate by filing a private complaint and have the offence investigated. We see no reason to exercise jurisdiction under Article 226 of the Constitution. Accordingly, the writ appeal is rejected. If such a complaint is filed, the Jurisdictional Magistrate shall take up the case immediately on file and deal with it, according to law and without any delay.
9. Order accordingly.
