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2007 Supreme(Bom) 643
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
SMT. RANJANA DESAI, & ANOOP V. MOHTA, JJ.
Shayamsunder R. Agarwal — Petitioner
Versus
State of Maharashtra — Respondents
CRIMINAL WRIT PETITION NO.2297 OF 2006
Decided on : 9TH MARCH, 2007.
Mr. M.S. Mohite with Mr. Sandesh D. Patil for the petitioner.
Mr. S.R. Borulkar, Public Prosecutor for the respondent-State.
Mr. M.K. Kocharekar for respondent 3.
Headnote:Bombay Police Manual, 1959 - Rule 113(2)-Preliminary inquiry. -Whether police can make preliminary inquiry before registration of FIR. It was held that preliminary inquiry has to be done having regard to Rule 113(2) of Police Manual and all steps taken by police officer while conducting preliminary inquiry must be reflected in station diary.
Constitution of India, 1950 - Article 226-Alternative remedy.- When can a writ be entertained as alternative remedy. It was held that in gross cases of grave injustice, availability of alternative remedy would not persuade the Court to deny petitioner necessary relief by rejecting his writ petition. Such petitions would be entertained in exceptional case of grave injustice.
Criminal Procedure Code, 1973 - Section 154-Preliminary inquiry.-Can police make preliminary inquiry to ascertain whether the offence informed is cognizable or non-cognizable it was held that preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not when information does not disclose it and where source of information is of doubtful, it can be done.
Criminal Procedure Code, 1973 - Sections 154 and 157-Information/Complaint-Not disclosing cognizable offence-Preliminary enquiry can be conducted by police officer before taking a decision whether to register offence or not.-There is no reason to hold that preliminary enquiry can be conducted only in respect of complaints against public servants holding top positions. If a complaint does not disclose a cognizable offence, but there appears to be a need of further inquiry to ascertain whether cognizable offence is disclosed or not, preliminary inquiry can be conducted before taking a decision whether to register the offence or not. Similarly, where source of information is of doubtful reliability i.e. an anonymous complaint preliminary inquiry can be conducted for checking up correctness of the information.
Criminal Procedure Code, 1973 - Section 154 and 482-Refusal to register FIR.-Whether on refusal to register FIR, can writ be entertained in alternative remedy. It was held that whether such petitions should be entertained or not must be decided on facts of each case and must be left to judicial discretion. Such petition would be entertained in exceptional case of grave injustice.
Criminal Procedure Code, 1973 - Section 154(1)-Registration of FIR.-Whether police officer is duty bound to register FIR on receiving information for commission of cognizable offence. It was held that if information discloses a cognizable offence FIR has to be registered.
1. In this petition, following questions arise. Whether once an information relating to commission of a cognizable offence is received by a police officer in charge of a police station, he is duty bound to register a FIR under section 154 of the Code of Criminal Procedure (for short, “the Code”).
2. Whether it is open to the police officer to make a preliminary inquiry to find out whether information received by him discloses cognizable offence or not.
3. Whether remedy of filing a writ petition under Article 226 of the Constitution of India or a petition under section 482 of the Code is open to a person aggrieved by the refusal of the police officer to register a FIR when alternative remedy of filing a private complaint is open to him.
2. The learned counsel appearing for the petitioner and the respondents AJN have addressed us on the above questions. Since the above questions of law have arisen in some other petitions also, the learned counsel Ms. Anjali Iyer and Mr. J.S. Kini have requested us to give them a hearing. We have accordingly heard them.
3. The facts of the present petition will have to be shortly stated. The petitioner claims to be a businessman. He carries on business in Mira Bhayandar area. He is carrying on business of real estate. According to him, he had received threatening calls from the members of underworld and hence the police had given him protection. According to the petitioner in the year 2004, he had applied for a revolver licence. At that time, respondent 3, PI Vastrad attached to Bhyandar Police Station (West), had given him a certificate that no criminal cases were pending against him. The said certificate is dated 20/2/2006.
4. The petitioner' s case is that thereafter he had applied for issuance of passport. The passport authorities wanted a certificate about the background of the petitioner. The petitioner approached respondent 3 for the certificate. Respondent 3 started demanding bribe from the petitioner. According to the petitioner, respondent 3 threatened the petitioner that if the petitioner does not yield to his demand, he would not give a positive report against him. AJN According to the petitioner, respondent 3 gave a false report that C.R. No.13 of 2003 was pending against him though the petitioner was acquitted therein. The petitioner' s case is that the earlier report dated 20/2/2006 is contrary to the report sent by respondent 3 to the passport authorities and this is not a mistake, but it is done deliberately because the petitioner did not pay money to respondent 3.
5. According to the petitioner, he approached the Superintendent of Police, Thane Rural, respondent 2. Vide letter dated 28/4/2006, respondent 3 was directed to give a fresh report. Due to false information given by respondent 3, the petitioner was required to pay a fine of Rs.5,000/-. The petitioner, therefore, sent a complaint to Deputy Superintendent of Police, vide letter dated 7/9/2006 and requested him to take action against respondent 3. The petitioner also filed a complaint on 14/9/2006 with the Superintendent of Police and requested him to register an offence against respondent 3. It was stated in this complaint that the lower authorities were not registering complaint against respondent 3 despite the fact that the complaint shows commission of a cognizable offence.
6. According to the petitioner, on two occasions, he was called by the police in connection with his complaint. Once he was called by Deputy Superintendent of Police, Vasai and on another occasion, he was called by AJN Sub-Divisional Police Officer. But on both the occasions, no one was present to attend to the petitioner. The petitioner has, therefore, approached this court praying, inter alia, for a direction to the police to register a complaint / First Information Report (for short, “the FIR”) against respondent 3.
7. We have heard Mr. Mohite, the learned counsel appearing for the petitioner. Mr. Mohite too
