The main legal point established in the judgment is that the power under Sub-Section (3) of Section 156 of the Cr.P.C. warrants application of judicial mind and cannot be exercised mechanically. The court also emphasized the requirement of filing an affidavit in support of a Complaint seeking an action under Sub-Section (3) of Section 156, and the need for the affidavit to comply with the requirements specified in Chapter VII of the Criminal Manual.

A.S. OKA, J.

1. The submissions of the learned counsel appearing for the parties were heard on the earlier date and today the Petition is fixed for dictation of judgment. We are dealing with this Petition elaborately as the issues raised in this Petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C") arise in many matters.

2. The challenge in this Petition is to the proceedings of a complaint file seeking an action under Sub-Section (3) of section 156 of Code of Criminal Procedure. The complaint was filed by the second respondent before the learned Metropolitan Magistrate, 10th Court at Andheri alleging commission of offence punishable under Sections 452, 465, 466, 468, 471, 420 read with Section 34 of the Indian Penal Code. On the said complaint on 7th October, 2000, the learned Metropolitan Magistrate passed the following order :

"Received. Heard.

Sr. P.I. of Oshiwara is directed to investigate under Section 156(3) Cr.P.C."

3. On the basis of the said order, in the year 2014, the second respondent who was the complainant in the said complaint filed Criminal Writ Petition No.3488 of 2014 in this Court. The said Writ Petition was filed making a grievance as regards the failure of the police to take action on the basis of the order dated 7th October, 2000. The said Writ Petition came up before a Division Bench of this Court on 17th August, 2015. The Division Bench disposed of the Writ Petition by permitting the second respondent to give a statement before the Inspector of Police, Oshiwara Police Station, Mumbai and by directing the Oshiwara Police Station to comply with the order dated 7th October, 2000 and to proceed further in accordance with law. The said order reads thus :

"1. This petition is filed seeking direction to the respondent to comply with the order dated 07.10.2000 passed by the learned Magistrate, 10th Court, Andheri, Mumbai and investigate the complaint filed by the petitioner vide C.C. No.37/S/2000 under Section 156(3)(b) of the Cr.P.C., copy of which is annexed at Exh. A at page 10 to the petition. The grievance of the petitioner is that even the learned Magistrate has passed an order under Section 156(3)(b) of the Cr.P.C. on 07.10.2000 and directed the Senior Police Inspector, Oshiwara Police Station to investigate petitioner's complaint, so far no action is taken by the Oshiwara Police Station."

2. Mrs. Mhatre, learned APPP placed on record report dated 17.08.2015 submitted by the Senior Inspector of Police, Oshiwara Police Station, Mumbai. The report reveals that all the registers and vital documents have been destroyed in the rainy water during the deluge in Mumbai on 26.07.2005.

3. In the above circumstances, in our considered view, it would be appropriate to dispose of the petition by passing following order.

ORDER

The petitioner is at liberty to give statement before the Senior police Inspector of Oshiwara Police Station, Mumbai and thereafter Oshiwara Police Station shall comply with the order dated 07.10.2000 and proceed further in accordance with law as expeditiously as possible."

4. It is on the basis of the said order that on 27th October, 2015 the impugned FIR was registered. Thus, the order passed by the learned Magistrate on 7th October, 2000 was acted upon after expiry of a period of 15 years. As stated earlier, the challenge in this Writ Petition is not only to the complaint and order passed thereon but also to the FIR registered on the basis of the said Order.

Submissions

5. The learned counsel appearing for the petitioner has taken us through the Complaint filed by the second respondent by inviting our attention to the material part of the averments. He urged that the real dispute is about the implementation of a Slum Rehabilitation Scheme and the real issue agitated by the complainant appears to be the issue of eligibility of the slum dwellers to get permanent accommodation. He pointed out that the Complaint is