Swapna Patker vs The State Of Maharashtra And Ors
2021 Latest Caselaw 11744 Bom

                                                  CRIWP488-2021+.DOC
                                                                       Santosh

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION


                      WRIT PETITION NO. 488 OF 2021

     Dr. Swapna Patker
     Shubh Swapna Bungalow,
     Third lane, Sunder Nagar, Kalina,
     Santacruz (East), Mumbai - 400 098                     ...Petitioner
                        Versus
1.   State of Maharashtra
     Through Public Prosecutor, High Court,
     of Bombay
2.   Senior Inspector of Police
     Vakola Police Station, Anand Nagar,
     Western Highway, Santacruz (East)
     Mumbai - 400 055
3.   Deputy Commissioner of Police
     Zone 8, BKC, Mumbai
4.   Mr. Sanjay Rajaram Raut
     'Maitri', Friends Colony, Bhandup (East)
     Mumbai - 400 042.                                 ...Respondents

                                    WITH
                        WRIT PETITION NO. 489 OF 2021

   Dr. Swapna Patker
   Shubh Swapna Bungalow,
   Third lane, Sunder Nagar, Kalina,
   Santacruz (East), Mumbai - 400 098                       ...Petitioner
                       Versus
1. State of Maharashtra
   Through Public Prosecutor, High Court,
   of Bombay
2. Senior Inspector of Police
   Vakola Police Station, Anand Nagar,
   Western Highway, Santacruz (East)
   Mumbai - 400 055
3. Deputy Commissioner of Police
   Zone 8, BKC, Mumbai



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                                                      CRIWP488-2021+.DOC

4. Mr. Sanjay Rajaram Raut
   'Maitri', Friends Colony, Bhandup (East)
   Mumbai - 400 042.                                      ...Respondents

                                    WITH
                        WRIT PETITION NO. 338 OF 2021

     Dr. Swapna Patker
     Shubh Swapna Bungalow,
     Third lane, Sunder Nagar, Kalina,
     Santacruz (East), Mumbai - 400 098                        ...Petitioner
                          Versus
1.   State of Maharashtra
     Through Public Prosecutor, High Court,
     of Bombay
2.   Senior Inspector of Police
     Vakola Police Station, Anand Nagar,
     Western Highway, Santacruz (East)
     Mumbai - 400 055
3.   Deputy Commissioner of Police
     Zone 8, BKC, Mumbai
4.   Mr. Sanjay Rajaram Raut
     'Maitri', Friends Colony, Bhandup (East)
     Mumbai - 400 042.                                    ...Respondents


Ms. Abha Singh, a/w Mr. Aditya Pratap, i/b Aditya Pratap &
     Associates, for the Petitioner in all Petitions.
Smt. A. S. Pai, PP for the State/Respondent nos.1 to 3 in all
     Petitions.
Mr. P. K. Dhakephalkar, Senior Advocate, i/b Ms. Gauri
     Godse, for Respondent no.4 in all petitions,

                                        CORAM: S. S. SHINDE &
                                               N. J. JAMADAR, JJ.

RESERVED ON: 22nd JULY, 2021.

PRONOUNCED ON: 25th AUGUST, 2021.

COMMON JUDGMENT:- PER : N. J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and, with the

consent of the learned Counsels for the parties, heard finally.

CRIWP488-2021+.DOC

2. Primary and principal grievance, which is common in

these petitions, under Article 226 of the Constitution of India is

the alleged laxity of the law enforcement agency in investigating

into the reports lodged by the petitioner and the resultant

infringement of the fundamental rights of the petitioner. Hence,

these petitions are decided by this common judgment.

3. At the outset, in the context of the issues which arise for

consideration in these petitions, it may be advantageous to

notice the prayers in the petitions. The prayers in

WP/488/2021, which is reckoned as a lead petition, are

extracted below:

"A. That this Hon'ble Court may be pleased to pass a writ in the nature of Mandamus under Article 226 of the Constitution of India, 1949, directing Vakola Police Station (Respondent no.2) to investigate the offenses as disclosed in the FIR No.324 of 2013 dated 30th July, 2013 lodged by the Petitioner at Vakola Police Station.

B. That this Hon'ble Court may be pleased to pass an order for departmental inquiry against Respondent no.2 to find out the reasons for their failure to take prompt and appropriate course of investigative action against the accused after registration of FIR.

C. That this Hon'ble Court may be pleased to pass an order against Respondent no.2, for failure to perform its duties under Section 29 of the Police Act, 1861; D. That this Hon'ble Court may be pleased to pass an order against Respondent no.2 for failure to perform its duties to conduct impartial and unbiased investigations under Section 156 of the Cr.P.C.

E. That this Honourbale Court may direct Respodent nos.2 to produce the case diaries of the respective FIRs u/s 172 of Cr.P.C. registered by them for inspection and perusal by this Honourable Court;

F. That this Hon'ble Court may be pleased to pass an order for arrest and custodial interrogation of Respondent

CRIWP488-2021+.DOC no.4 in order to ascertain the entire web and extent of his wrong doings and misuse of power and position by him. G. That this Hon'ble Court may be pleased to pass an order of search and seizure operations to be conducted at the residence and office premises of the Respondent No.4. H. That this Hon'ble Court may be pleased to pass protective orders in favour of the Petitioner against the Respondent no.4 to ensure she is not stalked, harassed, or molested any further directly or indirectly. I. That this Hon'ble Court may be pleased to pass restrictive orders in the nature of temporary injunctions and permanent injunctions against the respondent no.4 prohibiting him from approaching or contacting the professional contacts or any of close relatives or loved ones of the petitioner to ensure petitioner does not suffers any physical, monetary, mental, or emotional damages directly or indirectly until the final disposal of this Writ Petition to ensure the petitioner is not stalked, harassed, or molested any further.

J. That the Hon'ble Court may be pleased to direct the Respondent No.4 to pay for the Cost of the Writ Petition and Legal expenses as paid by the Petitioner.

K. Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case and in the interest of justice."

4. It would be contextually relevant to note that the prayers

in WP/489/2021 and WP/338/2021 are almost identical with

the change being that of the particulars of FIR lodged by the

petitioner like FIR number, date and the offences.

5. Facts in WP/488/2021:

(a) The petitioner claims to be a multi-talented person

with multifarious skill sets. The petitioner alleges that she has

been constantly subjected to mental torture, threats, stalking,

harassment, abuse, assault and attack at the hands of

respondent no.4 or other unknown persons. She claimed to

CRIWP488-2021+.DOC

have lodged FIRs. However, no effective investigation has been

conducted despite lapse of several years.

(b) It is the claim of the petitioner that on 29 th June,

2013, at about 9.00 pm. while on her way to home in her car

bearing registration No. MH-04/DY-9018, when she reached in

front of the Avashya House on CMT Road, an unknown person

suddenly came in front of the car and smashed the windshield

with an object. The driver of the car got scared and slowed it

down. The said unknown person came to the side of the car, on

which the petitioner was sitting, and smashed the window glass

of the car by a long rod. The petitioner sustained injuries as the

glass shards entered her eyes. She was immediately shifted to

the Asian Heart Hospital. While being treated, the petitioner

recollected that there was another unknown associate of the

said assailant. The petitioner thus approached Vakola Police

Station and lodged report leading to registration of CR No.324 of

2013 for the offences punishable under Sections 341, 324 and

427 read with 34 of the Penal Code.

(c) The petitioner avers that despite passage of eight

long years, the Senior Inspector of Police, Vakola Police Station -

respondent no.2 has not carried out any investigation into

aforesaid serious incident of assault upon the petitioner. The

CRIWP488-2021+.DOC

centrality of the allegation of the petitioner is that the inaction

of the police, despite a direction by the National Commission for

Women, is the direct outcome of the strong influence and

political power and position of respondent no.4, who is a sitting

Member of Parliament. Myriad allegations are made against

respondent no.4 ranging from violent attacks on the petitioner

by hoodlums and hirelings, to lodging of false and baseless

complaints against the petitioner, to harassment of the well

wishers of the petitioner, to driving a wedge a rift between the

petitioner and her husband.

(d) Aggrieved by the alleged inaction on the part of the

law enforcement agency and the alleged acts of commission and

omission on the part of respondent no.4, the petitioner has

invoked the writ jurisdiction for the afore-extracted reliefs.

6. Facts in WP/489/2021:

The petitioner lodged a report with Mahim Police Station

on 16th May, 2013, with the allegations that she had received

extortion calls from an international cell phone on her cell

phone, on 25th March, 27th March, and 29th March, 2013, and on

the landline at her restaurant and bar Sefron-12. On 15 th

March, 2013, at about 5.25 pm., while she was on her way to

the said restaurant, two persons riding Kawasaki-100

CRIWP488-2021+.DOC

motorcycle approached towards her in a high speed. The pillion

rider attempted to slash her by means of a razor like sharp

weapon. She took evasive action by raising her left hand. The

blow fell on her left arm. She was shifted to KEM Hospital.

Thus, after treatment, she approached the police and lodged

report leading to CR No.239 of 2013, for the offence punishable

under Section 324 read with 34 of the Penal Code against the

unknown assailants. The petitioner alleges that there has been

no investigation in the aforesaid crime as well over all these

years.

7. Facts in WP/338/2021:

On 2nd October, 2018, the petitioner lodged a report at

Vakola Police Station with the allegation that on 11 th September,

2018, at about 11.45 am., when the petitioner left her home she

realised that a motorcycle rider was following her. The petitioner

claimed to have changed the route and alighted of the auto-

rickshaw, in which she was travelling, to ascertain whether the

motorcyclist was indeed on her pursuit. After realising that the

motorcyclist was pursuing her relentlessly and purposefully, the

petitioner claimed to have stopped the rickshaw near Vakola

Police Station and alerted the police. At her pointing out, the

said motorcyclist, who identified himself as Vyankatesh Uppar,

CRIWP488-2021+.DOC

an employee of Star Security, was apprehended by police. The

petitioner thus lodged report against the said person and Star

Security leading to registration of CR No.376 of 2018, for the

offence punishable under Section 354D of the Penal Code. The

petitioner alleges that despite expressing an apprehension that

she was being stalked at the behest of some persons, the

Investigating Officer had not conducted any effective

investigation and unearthed the identity of those persons and

thus this writ petition.

8. For the completion of narration, it is necessary to note

that the allegations which are made against respondent no.4 in

WP/488/2021 are reiterated, and identical reliefs are sought, in

these two petitions as well.

9. In the backdrop of these allegations, especially the time-

lag since the registration of the FIRs (in the year 2013 in First

and Second petitions, and in the year 2018 in the Third petition)

and the situation in life of the parties, we thought it appropriate

to direct the Commissioner of Police, Mumbai, to look into the

grievances raised in the petitions and submit a status report,

and, thus, by an order dated 22nd June, 2021, we had ordered

accordingly. The Commissioner of Police submitted a report on

30th June, 2021.

CRIWP488-2021+.DOC

10. Adverting to the action taken and developments in the

intervening period, the Commissioner of Police submitted that

fair, impartial and unbiased action as per law has already been

taken in the grievances raised by the petitioner. In the context

of the principal allegation that no investigation had at all been

carried out in the FIRs lodged by the petitioner, it was informed

to the Court that:

(i) in CR No.324 of 2013, registered with Vakola Police

Station (subject matter of WP/488/2021) a final

report ('A' summary) was submitted before the

jurisdictional Magistrate on 27th April, 2015 and

despite 30 notices having been issued to the

petitioner, the latter chose not to attend the Court.

(ii) In CR No.239 of 2013, registered with Mahim Police

Station (subject matter of WP/489/2021) a final

report ('A' summary) was submitted on 28 th August,

2014, which awaits consideration.

(iii) In CR No.376 of 2018, registered with Vakola Police

Station (subject matter of WP/338/2021) post

investigation, charge-sheet has already been lodged

in the Court of jurisdictional Magistrate on 16 th

March, 2019, leading to CC No.509/PW/2019.

CRIWP488-2021+.DOC

11. The report further reveals that the police had enquired

into the matter, at the instance of the National Commission for

Women and reports were submitted on 26th August, 2020 and

12th October, 2020. It also adverts to the fact that Mumbai

Police have provided 24\7 police protection to the petitioner to

ensure her safety and security from 18th February, 2020 till

date.

12. In view of the aforesaid report, we directed the

Investigating Officers in the respective CRs to file affidavits-in-

reply restricted to the status of the crimes registered by the

petitioner. Pursuant to the said order, Mr. Jaywant Sankpal,

Police Inspector, who had conducted investigation in CR

No.86/2013 (CR No.342/2013, Vakola Police Station) filed an

affidavit-in-reply in WP/488/2021. He affirmed that at the

instance of the petitioner, the investigation in CR No.324/2013

registered with Vakola Police Station, came to be transferred to

the Crime Branch, Mumbai, and the crime was re-registered at

CR No.86/2013. He further affirmed that despite thorough

investigation the accused could not be found and, therefore,

after obtaining permission of competent authority, 'A' summary

report was filed in the Court of the learned Additional Chief

Metropolitan Magistrate, 37th Court Esplanade, Mumbai, on 7th

CRIWP488-2021+.DOC

May, 2015. Notices were issued to the petitioner on number of

occasions, but the petitioner did not appear before the Court,

except on 20th December, 2017. On that day, the petitioner was

directed to file say on 2nd February, 2018. The matter is now

posted on 13th December, 2021 as the petitioner has not

appeared before the Court despite the matter having been

posted for her response/say on 30 occasions.

13. Mr. Anant Ahire, Assistant Police Inspector, who

investigated CR No.239 of 2013, filed affidavit-in-reply in

WP/489/2021. He affirmed that even after thorough

investigation the accused could not be found and therefore 'A'

summary report has been filed in the Court of the learned

Additional Chief Metropolitan Magistrate, 9th Court, Bandra, on

28th June, 2021, and the matter was posted for consideration on

12th July, 2021. Since the petitioner did not appear and the

mater stood over to 12th August, 2021.

14. Ms. Poonam Pawar, Assistant Police Inspector, who

investigated CR No.376 of 2018, filed affidavit-in-reply in

WP/338/2021. The Investigating Officer asserts that during the

course of investigation statement of the petitioner was recorded

under Section 164 of the Code, the accused came to be arrested

and eventually charge-sheet was lodged in the Court of the

CRIWP488-2021+.DOC

Jurisdictional Magistrate, leading to CC No.509/PW/2019. The

matter is now posted for hearing on 22nd March, 2022.

15. It would be contextually relevant to note that respondent

no.4 has also filed affidavits in all three petitions. The

substance of the resistance put-forth by respondent no.4 is that

the petitions suffer from the vice of suppressio veri and

suggestio falsi. And, therefore, on that ground alone the

petitions deserve to be dismissed. In the backdrop of the

developments which have taken place in the intervening period,

as adverted to by the Investigating Officer in the respective

cases, the claim in the petitions that no investigation has been

carried out at all is stated to be false to the knowledge of the

petitioner. Further claim of the petitioner that no action was

taken in respect of the recommendation of the National

Commission for Women is stated to be incorrect as the police

conducted requisite inquiry, including the recording of the

statement of respondent no.4, and found that there was no

substance in the allegations of the petitioner and, accordingly,

submitted reports on 26th August, 2010 and 12th October, 2020.

As regards the rest of the allegations levelled against respondent

no.4, the latter contends that he has been unnecessary dragged

by the petitioner by making false and baseless allegations. None

CRIWP488-2021+.DOC

of the allegations made against respondent no.4 has ever been

made by the petitioner before any of the Investigating Officers.

The allegations are thus stated to be false, baseless and

politically motivated.

16. In the wake of the aforesaid pleadings, we have heard

Ms. Abha Singh, the learned Counsel for the petitioner,

Smt. Pai, the learned Public Prosecutor, for the State and

Mr. Dhakephalkar, the learned Senior Counsel for respondent

no.4. With the assistance of the learned Counsels for the

parties, we have carefully perused the material on record

including the report submitted by the Commissioner of Police.

17. To begin with, it is imperative to note that in view of the

developments, which have been brought to the notice of the

Court as regards the investigation into the FIRs lodged by the

petitioner, as emerged from the affidavits of the respective

Investigating Officers, we expressed our reservations regarding

the entertenability of the petition in the present form. Ms. Abha

Singh, however, stoutly submitted that notwithstanding the

aforesaid developments namely filing of final report ('A'

summary) in CR No.86/2013 (CR No.324/2013, Vakola Police

Station) and CR No.239/2013, and lodging of charge-sheet,

leading to CC No.509/PW/2019 in respect of the third, the

CRIWP488-2021+.DOC

grievance of the petitioner subsists and the petitions be,

therefore, determined on merits.

18. Ms. Abha Singh, the learned Counsel for the petitioner

would urge that the investigation carried out by the respective

Investigating Officers in the FIRs lodged by the petitioner is a

moonshine. The refrain that in two of the FIRs; Nos.324 of 2013

and 239 of 2013, the Investigating Officers could not trace out

the culprit is unworthy of acceptance. Despite the petitioner -

first informant having furnished the leads, the Investigating

Officers did not pursue the matter and have filed 'A' summary

report. In the face of such designedly defective investigation, the

petitioner is left with no other remedy than to invoke the

extraordinary jurisdiction, urged Ms. Abha Singh.

19. Per contra, the learned PP, submitted that the criticism

advanced against the investigating agency is wholly unjustified.

It was submitted that the petitioner can appear before the

jurisdictional Magistrate where the proceedings are pending and

put-forth her grievances. Appropriate orders can be passed by

the competent forum and, therefore, in view of the efficacious

remedy, there is no occasion for exercise of extraordinary

jurisdiction by this Court, especially when the petitioner has not

been appearing before the jurisdictional Magistrates.

CRIWP488-2021+.DOC

20. We have given our anxious consideration to the rival

submissions canvassed across the bar. First and foremost, we

must record that from the perusal of the petitions one gets an

impression that the petitioner approached the Court with a

positive case that, despite years having passed by, no action was

taken by the Investigating Officers on the FIRs lodged by the

petitioner. As it turned out, not only the Investigating Officers

have carried out the investigation but lodged final report ('A'

summary) in two of the FIRs and in the third, charge-sheet has

already been lodged leading to CC No.509/PW/2019. In our

view, what exacerbates the situation is the fact that the

petitioner is stated to have appeared before the learned

Magistrate on 20th December, 2017 in the 'A' summary

proceeding in CR No.86/2013 (CR No.324, Vakola Police

Station). In this setting of the matter, it was incumbent upon

the petitioner to make a true and full disclosure of the facts.

Nonetheless, we propose to consider the submissions canvassed

on behalf of the petitioners, on legal premise.

21. As regards FIR No.376/2018 for the offence punishable

under Sections 354D of the Penal Code which resulted in filing

of charge-sheet leading to CC No.509/PW/2019, if the petitioner

has any grievance about the persons who ought to have been

CRIWP488-2021+.DOC

arraigned as accused, in addition to the accused sent up for

trial, it would be suffice to note that there are adequate

provisions in the Code which address such contingency. Thus,

no further consideration is warranted in the context of CR

No.376/2018, registered with Vakola Police Station, Mumbai.

22. In the context of 'A' summary reports, two issues crop up

for our consideration. One, the courses which are open in law

when an Investigating Officer post investigation, files a final

report contending that no offence is committed by a named

person or that though offence is committed yet offender could

not be found ('A' summary). Two, the exercise of extraordinary

writ jurisdiction by High Court where the investigating officer,

post completion of investigation, files reports before the

jurisdictional Magistrate and those proceedings are awaiting

adjudication.

23. On the first question, the legal position seems to be well

neigh settled. Under the scheme of the Code, the functions of

the investigating agency and judiciary are well demarcated. The

investigation is the exclusive province of the investigating

agency. Ordinarily the courts cannot interfere in the matter of

investigation. The courts cannot direct as to how the

investigation is to be carried out, who to be investigated into and

CRIWP488-2021+.DOC

the manner of investigation etc. Though the Magistrate

exercises supervisory jurisdiction over investigation, in certain

areas, yet the Magistrate cannot direct the Investigating Officer

to form a particular opinion and lodge charge-sheet. It is for the

Investigating Officer to arrive at a conclusion. Conversly, the

Magistrate is not bound by the opinion of the Investigating

Officer. He can take cognizance of the offence or direct further

investigation even where the Investigating Officer opines that no

offence is made out or further investigation is not warranted and

files a closure report. If the Magistrate after considering the

final report, finds that the investigation is unsatisfactory or

incomplete or the circumstances of the case warrant further

investigation, the Magistrate is empowered to direct further

investigation under Section 156(3) of the Code. Thus, the

Magistrate is not bound to accept the final report submitted by

the investigating agency and is empowered to either take

cognizance, on the basis of existing material or direct further

investigation.

24. A profitable reference, in this context, can be made to a

judgment of the Supreme Court in the case of Abhinandan Jha

and others vs. Dinesh Mishra1 wherein after adverting to the

previous pronouncements including the celebrated judgment of

1 AIR 1968 Supreme Court 117,

CRIWP488-2021+.DOC

the Privy Council in the case of King Emperor vs. Khwaja Najir

Ahmed2 the Supreme Court expounded the legal position in the

following words:

"15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S.156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report."

(emphasis supplied)

25. In the light of the aforesaid exposition of law, especially in

the context of the situation where the Magistrate is required to

deal with a final report ('A' summary) to the effect that the

offender could not be traced despite investigation, the

jurisdictional Magistrate, can very well direct further

investigation. The question as to whether the stand of the

2 AIR (32) 1945 Privy Council 18.

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Investigating Officer that the offender could not be found, in

spite of earnest investigation, is justifiable is to be determined

by the Magistrate.

26. In the facts of the case, we have noted that in the first two

FIRs, where final report ('A' summary) have been filed by the

Investigating Officers, the jurisdictional Magistrates have issued

notices to the petitioner. In one of the matters, the petitioner

has even appeared before the learned Magistrate once. The

jurisdictional Magistrates have thus acted in conformity that the

requirement of law that before a final report is accepted, the first

informant who lodged the FIR, ought to be provided an

opportunity of hearing. In such a situation, the first informant

can persuade the learned Magistrate to take cognizance on the

basis of the material collected during the course of investigation

or direct further investigation. Often, the first informants file a

protest petition pointing out the existence of material which

either warrants taking of cognizance or further investigation.

Though there is no statutory requirement, this practice of

issuing notice to the first informant before accepting the final

report has ingrained into law.

27. A useful reference, in this context, can be made to a Three

Judge Bench decision of the Supreme Court in the case of

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Bhagwant Singh vs. Commissioner of Police and another 3

wherein the Supreme Court expounded the courses which are

open to the Magistrate, in the two contingencies, which may

arise depending upon the nature of the report under Section

173 of the Code. First, when it concludes that offences are

committed. Second, when it is opined that no offence is made

out. The observations of the Supreme Court in paragraphs 3

and 4 are instructive and hence extracted below:

"3. It will be seen from the provisions to which we have referred in the preceding paragraph that when an informant lodges the First Information Report with the officer-in- charge of a police station, he does not fade away with the lodging of the First Information Report. He is very much concerned with what action is initiated by the officer in charge of the police station on the basis of the First Information Report lodged by him. No sooner he lodges the First Information Report, a copy of it has to be supplied him, free of cost, under sub- section (2) of Section 154. If notwithstanding the First Information Report, the officer-in-charge of a police station decides not to investigate the case on the view that there is no sufficient ground for entering on an investigation, he is required under sub-section (2) of Section 157 to notify to the informant the fact that he is not going to investigate the case or cause it to be investigated. Then again, the officer-in-charge of a police station is obligated under sub-

section(2)(ii) of Section 173 to communicate the action taken by him to the informant and the report forwarded by him to the magistrate under sub-section (2)(i) has therefore to be supplied by him to the informant. The question immediately arises as to why action taken by the officer-in-charge of a police station on the First Information Report is required to be communicated and the report forwarded to the Magistrate under sub-section (2)(i) of Section 173 required to be supplied to the informant. Obviously, the reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know what is the result of the investigation initiated on the basis of the First Information Report. The informant having taken the initiative in lodging the First Information Report with a view to initiating investigation by the police for the purpose of

3 1985(2) SCC 537.

CRIWP488-2021+.DOC ascertaining whether any offence has been committed and, if so, by whom, is vitally interested in the result of the investigation and hence the law requires that the action taken by the officer-in-charge of a police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under sub- section (2)(i) of Section 173 should also be supplied to him.

4. Now, when the report forwarded by the officer-in- charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence apppears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the

CRIWP488-2021+.DOC Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2) (i) of Section 173 if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant connot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."

(emphasis supplied)

28. In the backdrop of the aforesaid exposition of the legal

position, readverting to the facts of the case, we are of the

considered opinion that the petitioner can appear before the

jurisdictional Magistrate and raise the grievance that the

investigation is incomplete or unsatisfactory. Indeed, the

petitioner has been provided such opportunity by the

jurisdictional Magistrate. It is for the petitioner to avail those

opportunities.

CRIWP488-2021+.DOC

29. Conversely, at this juncture, it would be inadvisable for

this Court to interject the proceedings which are pending before

the competent courts. Undoubtedly, the powers of the High

Court under Article 226 are of wide amplitude. However, resort

to the plenary power where proceedings are pending before the

competent forums, without there being any exceptional situation

and compelling reasons, may not be justifiable.

30. We are fortified in our view by a judgment of the Supreme

Court in the case of Gangadhar Janardan Mhatre vs. State of

Maharashtra and others4 wherein a Division Bench of this Court

had declined to exercise the writ jurisdiction in a petition where

somewhat identical reliefs were sought, with the allegations that

the proceedings which were pending before the competent

forums were the outcome of the laxity of the investigating

agency and, thus, there was need for further and better

investigation. The Supreme Court, after adverting to the

pronouncements in the case of Abhinandan Jha (supra) and

Bhagwant Singh (supra) reiterated the legal position and

observed that the remedy for the appellant therein was before

the jurisdictional forums and the writ application was not the

proper remedy without availing remedy available under the Code

4 (2004) 7 Supreme Court Cases 768.

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and the appellant could not have approached the High Court by

filing a writ petition.

31. It is axiomatic that in the event the jurisdictional

Magistrates adjudicate the proceedings, adverse to the interest

of the petitioner, latter can avail the appropriate remedies as

provided in law. However, at this stage, this Court cannot

exercise extraordinary jurisdiction when the petitioner can very

well agitate the grievances before the forums under the Code.

We are thus not persuaded to entertain the prayers in the

petitions centered around the incomplete or unsatisfactory

investigation.

32. In the context of the allegations against respondent no.4,

evidently those allegations are rooted in facts. It is trite that in

exercise of writ jurisdiction this Court is not expected to delve

into thickets of facts. It is not the case that in the first

information reports, referred to above, any role was attributed to

respondent no.4. As indicated above, the allegations against

respondent no.4 range from personal to professional to familial

pursuits of the petitioner. Suffice to note that the petitioner may

agitate those grievances before the appropriate forums in a

manner known to law, if so advised. However, in exercise of writ

jurisdiction, where such allegations are essentially rooted in

CRIWP488-2021+.DOC

facts, the prayers like a direction for arrest and custodial

interrogation of respondent no.4, search and seizure at the

residential and office premises of respondent no.4 and

prohibitory and injunctive reliefs, simply do not deserve

countenance. We refrain from making further observations to

obviate the possibility of being understood to have expressed an

opinion over the disputed questions of facts.

33. The conspectus of aforesaid consideration is that the

petitions deserve to be dismissed.

34. Hence, the following order:

:ORDER:

The WP/488/2021, WP/489/2021 and WP/338/2021

stand dismissed subject to the following directions:

(i) The learned Additional Chief Metropolitatn

Magistrate, 37th Court, Esplande, Mumbai, is requested to make

an endeavour to decide the 'A' summary proceeding Vide No.21/

A summary/2015, arising out of in CR No.86 of 2013 (CR

No.324/2013, Vakola Police Station), as expeditiously as

possible, and preferably, within three months from the date on

which the petitioner is directed to appear before the learned

Magistrate, if not already decided.

CRIWP488-2021+.DOC

The petitioner - first informant shall appear before the

learned Additional Chief Metropolitan Magistrate, 37th Court,

Esplanade, Mumbai, on 20th September, 2021.

(ii) The learned Additional Chief Metropolitan Magistrate

9th Court, Bandra, is requested to decide the 'A' summary

proceeding vide No.25/'A' Summary/2021 arising out of FIR

No.239/2013, registered with Mahim Police Station, as

expeditiously as possible and preferably within three months

from the date on which the petitioner is directed to appear

before the learned Magistrate, if not already decided.

The petitioner shall appear before the learned Additional Chief Metropolitan Magistrate 9th Court, Bandra, in the aforesaid proceeding on 22nd September, 2021.

(iii) By way of abundant caution we clarify that the

observations made hereinabove are confined to the adjudication

of the issues raised in the writ petitions and they may not be

construed as an expression of opinion on the merits of the

proceedings pending before the jurisdictional Magistrates and

those proceedings be decided on their own merits uninfluenced

by the aforesaid observations.

Rule stand discharged.

       [N. J. JAMADAR, J.]                    [S. S. SHINDE, J.]