Narendra Nagindas Rathod vs The State Of Maharashtra
2012 Latest Caselaw 91 Bom

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    rpa               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURSIDICTION




                                                                                         
                       CRIMINAL WRIT PETITION NO. 3337 OF 2012




                                                                
          Narendra Nagindas Rathod                                      ..  Petitioner 
                       V/s.
          The State of Maharashtra,




                                                               
          Mantralaya, Mumbai & Ors.                                     ..  Respondents

                                            .....
          Mr. Prakash Naik i/b. Mr. Arun Nimbalkar for the Petitioner.




                                                  
          Mrs. M. H. Mhatre, A.P.P for Respondent - State.
                                  ig        .....

                                       CORAM : A.S.OKA & SMT. S.S. JADHAV, JJ.

DATE : OCTOBER 5th, 2012.

ORAL JUDGMENT (PER A.S. OKA, J.) :

The prayer in this Petition under Article 226 of the Constitution

of India is for issuing a writ of mandamus directing the third

Respondent to register the First Information Report (FIR) and record

the statement of the Petitioner and other Bank account holders.

Further, a direction is sought for carrying out investigation and filing

charge sheet on the basis of the complaint made by the Petitioner

dated 1st October, 2009. We may state here that there is a

communication on record addressed to the Petitioner dated 10 th

August, 2012, by the Senior Inspector of Police, Gamdevi Police

Station, in which it is stated that an enquiry on Application/Complaint

of the Petitioner has been made as regards allegations made therein

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that Shri Ramesh S. Thakkar and Mrs. Chherra R. Thakkar had

misappropriated a sum of Rs.2,49,52,193/- held by the parents of the

Petitioner. It is stated therein that the Petitioner's father had executed

a power of attorney in favour of the said Ramesh Thakkar and on the

basis of the authority conferred on him, he was looking after the

affairs of the father of the Petitioner. It was observed that the dispute

is of civil nature. Therefore, the Petitioner was directed to seek relief

from the appropriate Court.

2. The learned counsel appearing for the Petitioner invited our

attention to the complaint dated 1 st October, 2009, as well as the other

documents placed on record. He pointed out the allegations made

therein as regards withdrawal of large amounts by the accused and

siphoning of the funds by the accused. He invited our attention to the

alleged power of attorney executed by the parents of the Petitioner.

He urged that the parents of the Petitioner did not authorize the

accused to withdraw any amounts from Bank account. He pointed out

that the Petitioner was abroad and though withdrawals have been

made from 2003 onwards, only after the Petitioner came back, he

realized that such a huge amount has been misappropriated.

3. He invited our attention to Section 154 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as "the said Code of 1973").

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He submitted that the provisions thereof are mandatory and once

information of commission of cognizable office is received by the

officer incharge of a Police station, he is under an obligation to register

the offence and make investigation. He placed reliance on the

decision of Full Bench of this Court in the case of Sandeep Rammilan

Shukla V/s. State of Maharashtra [2009 Mh.L.J (1) 1997]. He

submitted that the police officer was under a duty to register the

offence after receiving information regarding commission of

cognizable offence. He fairly pointed out the decisions of the Apex

Court in the cases of Aleque Padamsee & Ors v/s. Union of India &

Ors. [(2007) 6 SCC 171] and Sakiri Vasu V/s. State of Utter

Pradesh & Ors. [(2008) 2 SCC 409], which take a view that Writ

Court cannot direct registration of First Information Report and

persons making a grievance regarding failure to register the offence

must adopt statutory remedy under the said Code of 1973. He invited

our attention to a decision of Division Bench of this Court in case of

Mrs. Charu Kishor Mehta V/s. State of Maharashtra & Anr. [2011

ALL MR (Cri)173], wherein after considering the aforesaid decisions

of the Apex Court, this Court invoked the extra ordinary jurisdiction

under Article 226 of the Constitution of India and directed registration

of the offence. He also invited our attention to a decision of the Apex

Court in the case of Ramesh Kumari V/s. State (NCT of Delhi) and

others. He submitted that even in this case, the Apex Court directed

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registration of the FIR by relying upon Section 154 (1) of the said

Code of 1973. He has made several submissions on the factual aspects

of the case including the fact that the Petitioner's father was suffering

from loss of memory.

4. We have carefully considered the submissions. It will be

necessary to make a reference to the decision of the Apex Court in the

case of All India Institution of Medical Science Employees' Union

V/s. Union of India [1996-SCC-11-582]. It will be necessary to make

reference to what is held in paragraph Nos. 4 and 5 of the said

decision which read thus:

"(4) When the information is laid with the police but no

action in that behalf is 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

Magistrate is required to enquire into the complaint as provided in Ch. XV of the 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 police concerned to investigate into the offence

under Ch. 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 that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused.

(5) 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 filing a writ

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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."

(Underline supplied)

5. The learned counsel appearing for the Petitioner laid emphasis

on the decision in the case of Ramesh Kumari (Supra). In the case of

Aleque Padamsee (Supra), attention of the Apex Court was invited to

the said decision in the case of Ramesh Kumari (Supra). It will be

necessary to make reference to paragraphs 7 and 8 of the said

decision in the case of Aleque Padamsee (Supra) read thus :

"7. Whenever any information if received by the police

about the alleged commission of offence whichis a cognizable one there is a duty to register the FIR. There

can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is to what course is to be adopted if the police does not do it. As was held in

All India Institute of Medical Sciences case and reiterated in Gangadhar case the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views iin All India Institute for Medical Sciences case,

Gangadhar case, Hari Singh case, Minu Kumari case and Ramesh Kumari case, we find that the view expressed in Ramesh Kumari case related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari case the basic issue did not relate to the methodology to be adopted when was expressly dealt with in All India Institute of Medical Sciences case, Gangadhar case,Minu Kumari case and Hari Singh case. The view expressed in Ramesh Kumari case was reiterated in Lallan Chaudhary v. State of Bihar. The course available, when the police does not carry out the statutory requirements under Section 154

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was directly in issue in All India Institute of Medical Sciences case, Gangadhar case, Hari Singh case and Minu Kumari case. The correct position in law,

therefore, is that the police officials ought to register the FIR whenever facts brought to their notice show that

cognizable offence has been made up. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code. It appears that in the present case initially the case was

tagged by order dated 24-2-2003 with WP(C) No.530 of 2002 and WP(C) No.221 of 2002. Subsequently, these writ petitions were delinked from the aforesaid writ petitions.

8. The writ petitions are finally disposed of with the following directions:

(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the

Code are to be adopted and observed.

(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.

(3) So far as non-grant of sanction aspect is concerned, it is for the Government concerned to deal

with the prayer. The Government concerned would do well to deal with the matter within three months from the date of receipt of this order.

(4) We make it clear that we have not expressed

any opinion on the merits of the case. "

(Underlines supplied)

This decision is followed by another decision of the Apex Court

in the case of Sakiri Vasu (Supra), wherein the same view has been

taken. Thus, the view taken by the Apex Court is that when the

grievance of a Petitioner is that though information regarding

commission of a cognizable offences is submitted to police, no action

is being taken, a recourse cannot be taken to writ jurisdiction in view

of availability of remedy under the said Code of 1973.

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6. As far as power of this Court under Article 226 of the

Constitution of India of issue of writ of mandamus is concerned, the

law is well settled. It is a constitutional power and the constitution

imposes no embargo on the exercise of the said power. On this aspect,

it will be necessary to make a reference to the decision of the Apex

Court in the case of ABL International Limited & Anr. V/s. Export

REDIT Guarantee Corporation of India Limited & Ors. [(2004) 3

SCC 553]. A reference can be made in paragraph 28 of the said

decision which reproduces the well settled position of law. Paragraph

28 reads thus:

"28. However, while entertaining an objection as to the

maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by

any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of the power (See Whirlpool Corpn. v. Registrar of Trade Marks.) And this

plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."

(Underlines added)

7. What is reiterated by the Apex Court in the said decision is that

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the power of this Court to issue prerogative writs under Article 226 of

the Constitution of India is of plenary nature and is not limited by any

other provisions of the constitution. However, there are self imposed

restrictions on the exercise of this power and this plenary power of the

High Court to issue prerogative writ will not be normally exercised by

this Court to the exclusion of other available remedies unless the

action of the State or its instrumentality is arbitrary and unreasonable,

so as to violate the constitutional mandate of Article 14. The Apex

Court also observed that even for other valid and legitimate reasons

where the Court thinks it necessary to exercise the said jurisdiction,

the self imposed restriction will not applicable.

7. Therefore, there cannot be any dispute that there is a power

vested in this Court of issuing writ of mandamus of directing

registration of an offence. However, this plenary power will not be

normally exercised by the Court to the exclusion of other available

remedies. The Apex Court in the case of Aleque Padamsee (Supra)

and Sakiri Vasu (Supra) has held that when grievance of a Petitioner

is that an offence is not being registered, the remedy under the said

Code of 1973 has to be adopted and this Court should discourage the

practice of filing Writ Petition.

8. Therefore, the only question to be considered in the present case

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is whether the action of the police is arbitrary or unreasonable so as to

violate constitutional mandate of Article 14 or there are other valid

and legitimate reasons to make an exception to the general rule which

is laid down in the case of Aleque Padamsee (Supra) and several

other decisions of the Apex Court. At this stage, we may make a

reference to the decision of the Division Bench of this Court in the case

of Mrs. Charu Mehta (Supra). In the said decision, the Division

Bench has quoted relevant paragraphs of the decision in the case of

Sakiri Vasu (Supra). In particular, a reference has been made to

paragraph 27 of Sakiri Vasu (Supra), which holds that the High Court

should discourage the practice of filing a Writ Petition or a Petition

under Section 482 of the said Code of 1973, simply because a person

has a grievance that his FIR has not been registered by the Police or

after being registered, proper investigation has not been done by the

police. Thus, this Court was well aware of the self imposed

constraints on exercise of the power under Article 226 of the

Constitution of India. If the last portion of paragraph 21 of the said

decision of this Court is perused, only after finding that accusation of

fraud, embezzlement etc., was in relation to a public trust property

that this Court has made an exception to the general rule which is

consistently followed of directing the Petitioner to take recourse to the

statutory remedy.

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9. Now we turn to the facts of the case. We may note here that

while we refer to the fact of the case, we are making no adjudication

on the question whether a case of commission of a cognizable offence

is made out. We are examining the facts of the case only in the

context of the question whether this Court should make an exception

to the general rule. We find from the complaint that withdrawals from

the account of the parents of the Petitioner were made right from the

year 2003 onwards. There is a power of attorney on record. Whether

the Power of attorney authorizes the attorney to operate the accounts

and withdraw the money, is a matter of interpretation. As

withdrawals were made right from the year 2003 and as there was a

power of attorney, on the basis of which the accused has allegedly

acted, it appears that in communication dated 10 th August, 2012, the

officer of the police has observed that the complaint is essentially in a

nature of a civil dispute. In this view of the matter, the law laid down

by the Apex Court in the case of Aleque Padamsee & Others (Supra)

and several other decisions will have to be followed and the Petitioner

will have to be relegated to the statutory remedy. Only on this

ground, we decline to entertain the Petition. We reject the Petition by

keeping the remedies of the Petitioner open. We keep all contentions

of the Petitioner expressly open.

             (SMT. S.S. JADHAV, J.)                                (A.S.OKA, J.)