Archana W/O. Devidas Pawar vs The State Of Maharashtra And ...
2021 Latest Caselaw 11629 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

             CRIMINAL WRIT PETITION NO.1458 OF 2019

             Archana w/o Devidas Pawar,
             age 27 years, Occ. Household,
             R/o C/o Madan Uttam Rathod,
             R/o Tanda No.3, Kargaon,
             Taluka Chalisgaon, District Jalgaon.       Petitioner.
                                                    (Orig complainant)


             VERSUS

     1.      The State of Maharashtra,
             Through its
             The Superintendent of Police,
             Jalgaon, Taluka & District Jalgaon.

     2.      The Deputy Superintendent of Police,
             Chalisgaon, Taluka Chalisgaon,
             District Jalgaon.

     3.  The Police Inspector,
         Rural Police Station,
         Chalisgaon, Taluka Chalisgaon,
         District Jalgaon.                  Respondents.
                               ...
          Advocate for Petitioner : Mr. K. N. Shermale
          APP for Respondents : Mr. Sachin J. Salgare
                               ...
     CORAM : V. K. JADHAV & SHRIKANT D. KULKARNI, JJ.

Dated: August 24, 2021 ...

JUDGMENT :- (Per V K JADHAV, J.)

1. Heard. Leave to amend the prayer clause "C".

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2. Rule. Rule made returnable forthwith. Heard

fnally with consent of the parties at admission stage.

3. This writ petition is fled seeking directions to the

respondents to register the crime pursuant to the

complaint fled by the petitioner dated 30.9.2017.

4. Brief facts, giving rise to the present writ petition,

are as follows :-

a] Deceased Ambibai Ganesh Rathod was the mother

of the petitioner. On 06.09.2017 deceased Ambibai had

fled a complaint before the Superintendent of Police,

Jalgaon against (1) Pankaj Nagindas Chajjed, (2) Afzal

Khan Pathan and (3) Dadabhau Pundlik Patil, alleging

therein that she was subjected to harassment, abuses

in flthy language and life threats. According to the

petitioner, the land Gat No.59 ad-measuring 6 H 92 R is

owned by the grand mother and father of the petitioner.

In order to alienate the said land, a General Power of

Attorney was executed in favour of one Pundlik Daulat

Patil, r/o Umbarkhed, Taluka Chalisgaon, District

Jalgaon on 18.11.2013. On 16.3.2016, said land was

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sold to one Nagindas Navindar Chajjed under a

registered sale deed. It was sold for a consideration of

Rs.3,55,000/- per acre and in view of the same, the

total consideration amount was Rs.61,00,000/-.

However, the entire amount was not paid by the power

of attorney and said purchaser to deceased Ambibai

Ganesh Rathod. Deceased Ambibai was insisting the

power of attorney, the agent and the said purchaser for

payment of the consideration amount. The father of the

petitioner, namely, Ganesh Parsu Rathod, was heavily

addicted to liquor. He was also mentally ill. By taking

undue advantage of his mental illness and so also

addiction to liquor, the mediator, the purchaser and

power of attorney completed the said transaction.

Consequently, deceased Ambibai had lodged a complaint

on 16.08.2017 to the Police Inspector, Rural Police

Station, Chalisgaon, then on 19.08.2017 and also on

06.09.2017 to the Superintendent of Police, Jalgaon.

However, no cognizance of her complaint was taken.

After fling a complaint on 06.09.2017 before the

Superintendent of Police, Jalgaon, deceased Ambibai

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died on 10.9.2017 otherwise than under the normal

circumstances. The petitioner has expressed her doubts

that because of the said transaction pertaining to the

agricultural land, she was murdered.

5. Learned counsel for the petitioner submits that

respondent no.3 has made a formal inquiry by recording

the statements of certain witnesses including the

proposed accused persons and also Dr. Amit

Bhupendrakumar Jain and arrived at a conclusion that

the petitioner has fled the said complaint for grabbing

money from the persons mentioned in the complaint as

proposed accused persons. Learned counsel submits

that, even thereafter those proposed accused persons

gave threats to the petitioner/complainant for fling the

complaint against them. Learned counsel submits that

the father of the petitioner, namely, Ganesh Rathod and

others had executed the power of attorney in favour of

Pundlik Daulit Patil, in which all the powers were

assigned to the power of attorney Pundlik Daulat Patil.

However, those documents got executed by taking

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undue advantage of the addiction of liquor of the father

of the petitioner.

6. Learned counsel submits that, in view of the ratio

laid down by the Supreme Court in the case of Lalita

Kumari v. Govt. of U.P., reported in AIR 2014 SC 187,

recording of FIR is mandatory despite the police offcer

being unsatisfed by its reasonableness or credibility.

Learned counsel submits that in a serious case wherein

the petitioner has expressed her suspicion about

homicidal death of her deceased mother, respondent

no.3 has conducted the inquiry, which is contrary to the

law laid down by the Supreme Court in the aforesaid

case.

7. Learned APP submits that there is a considerable

delay in lodging the complaint and as such, respondent

no.3 has conducted preliminary inquiry into the matter.

Respondent no.3 has concluded that deceased Ambibai

was not the owner in possession of the land Gat No.59

and she was not even the legal heir of the person, who

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was in possession of the said land as an owner thereof.

It is thus not acceptable that deceased Ambibai was

subjected to harassment and threats by the proposed

accused persons on that count. The husband of

deceased Ambibai, namely, Ganesh Parsu Rathod and

his mother and sister were the owners of the said land

and they had executed agreement to sale on 20.12.2013

by accepting the earnest amount of Rs.5,43,000/- and

on 16.03.2016, sold the entire land to the proposed

accused Pankaj Nagindas Chajjed by accepting the

remaining amount of consideration. Even said

agricultural land was mutated in the name of the

purchaser Pankaj Nagindas Chajjed on the basis of the

execution of the sale deed. It has been revealed in the

inquiry that thereafter, the husband of deceased

Ambibai and the co-owners of the agricultural land

have sold the said land on 9.3.2017 for Rs.12,11,000/-

to one JBM Solar Power Maharashtra Limited and the

said amount has been paid to the father of the

petitioner. Nothing has been revealed during the inquiry

about cheating. Deceased Ambibai died due to old

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stomach disease. Though petitioner was present for

funeral, she has not lodged the complaint immediately.

Learned APP submits that the Investigating Offcer has

thoroughly inquired into the matter and found that

there is no substance in the allegations.

8. In the case of Lalita Kumari (supra), relied upon

by learned counsel for the petitioner, the Supreme Court

has dealt with the issue as to "whether a police offcer is

bound to register a First Information Report (FIR) upon

receiving any information relating to commission of

cognizable offence under Section 154 of the Code of

Criminal Procedure, 1973 (in short 'the Code') or the

police offcer has the power to conduct a 'preliminary

inquiry' in order to test the veracity of such information

before registering the same?" In paragraph No.111 the

Supreme Court has drawn the conclusion in the form of

the directions which is as follows :-

"111) In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses

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               commission      of   a   cognizable   offence    and      no

preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the frst informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police offcer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring offcers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of

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cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be refected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously refected in the said Diary and the decision to conduct a preliminary inquiry must also be refected, as mentioned above."

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9. In the instant case, the petitioner has expressed

suspicion about the death of her mother Ambibai as

otherwise than under the normal circumstances. The

petitioner has pointed out the transactions in respect of

the agricultural land. It appears that the father of the

petitioner (husband of deceased Ambibai) was the co-

owner of the said agricultural land alongwith his mother

and sister. The petitioner has also alleged in her

complaint that her father was heavily addicted to liquor

and he was also suffering from mental illness. Thus, by

taking undue advantage of the same, certain

transaction was entered into in respect of the said

agricultural land. Deceased Ambibai was frequently

complaining against the proposed co-accused persons

by fling complaints before various authorities. She was

subjected to harassment, abuses in flthy language by

the proposed accused persons and also threats to life.

Deceased Ambibai had lastly fled her complaint before

the Superintendent of Police, Jalgaon on 6.9.2017 and

four days thereafter, she died otherwise than under the

normal circumstances. Though, there is delay of 20

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days in lodging the complaint, however, in clause no. (vi)

of the said conclusions/directions, the Supreme Court

in Lalita kumari (supra) has specifcally mentioned the

types of cases, in which preliminary inquiry is to be

conducted. It also includes the cases where there is

abnormal delay/laches in initiating criminal prosecution

i.e. over three months delay in reporting the matter

without satisfactorily explaining the reasons for delay.

10. In the instant case, though the information

discloses commission of a serious cognizable offence,

respondent no.3 has conducted preliminary inquiry,

which is not permissible in terms of the ratio laid down

by the Supreme Court in the case of Lalita Kumari

(supra) in conclusion/direction no. (vi). Further, we

have carefully gone through the preliminary inquiry,

However, the same is contrary to the direction no. (v) in

Lalita Kumari (supra) as, in clause no. (v) it has been

specifcally observed that scope of the preliminary

inquiry is not to verify the veracity or otherwise of the

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information received but only to ascertain whether the

information reveals any cognizable offence.

11. During the course of said so-called inquiry,

respondent no.3 has recorded the statement of Dr. Amit

Bhupendrakumar Jain. We are shocked to read his

statement. He has stated that on 09.11.2017 i.e. before

death, deceased Ambibai was taken to the hospital of

Dr. Amit Jain by her relatives. It has come in the

statement of Dr. Amit Jain that deceased Ambibai was

disoriented when brought to his hospital. Dr. Jain had

directed certain blood tests and noticed some swelling

on her Kidney. He further stated in his statement that

he is unable to state as to the reason for said swelling

on kidney. According to him, swelling on kidney may

appear due to various reasons. He found the condition

of deceased Ambibai critical and thus referred her to

Dhule. He has further explained in his statement that

he is not in a position to state as to the illness suffered

by deceased Ambibai when she was brought to his

hospital. Even there are no papers of her admission in

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his hospital. The Investigating Offcer has not taken

pains to fnd out as to what happened to the deceased

Ambibai when she was taken to the hospital at Dhule. It

is not clear from the said papers that deceased Ambibai

was treated in the hospital at Dhule or not and even as

to what is the cause of her death. It thus appears that

the approach of respondent no.3 is highly suspicious,

objectionable and contrary to the law laid down by the

Supreme Court in the case of Lalita Kumari. There is

delay of only 20 days in lodging the complaint, which

appears to have been explained by the petitioner. In view

of the same, preliminary inquiry conducted by

respondent no.3 was contrary to the law laid down by

the Supreme Court in the aforesaid case.

12. We accordingly, partly allow this criminal writ

petition to the extent of Prayer Clause "C". Rule is partly

made absolute in above terms. Writ Petition is

accordingly disposed off.

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     13.     However,          we   hope    and    expect        from       the

Superintendent of Police, District Jalgaon, to assign the

investigation of the crime to any other effcient police

offcer.

( SHRIKANT D. KULKARNI, J. ) ( V.K. JADHAV, J. ) ...

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