Shahnawaz Khan Ismail Khan And 3 ... vs Commissioner Of Police, Nagpur Cp ...
2021 Latest Caselaw 3113 Bom

  Judgment                              1                          Cri.W.P.24.2020.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.

                    CRIMINAL WRIT PETITION NO. 24 OF 2020


 1)       Shahnawas Khan Ismail Khan,
          Aged about 46 years, Occu. - Private,
          R/o. 36/1, Sanjivani Colony,
          Yashodhara Nagar, Nagpur.

 2)       Firoz Ahmad Ansari S/o Safat Ahmad Ansari,
          Aged about 42 years, Occu. - Private,
          R/o Near Jama Masjid,
          Gujri Bazar, Kamptee, Nagpur.

 3)       Mohammad Kadir S/o Mohammad Wakil,
          Aged about 30 years, Occu. - Private,
          R/o. Diwanshah Taakiya, Mominura,
          Mahatma Fule Bazar, Nagpur.

 4)       Mohammad Shakil S/o Shakil Hussen Sheikh,
          Aged about 45 years, Occu. - Private,
          R/o. B/H. Kamal baba Darga,
          Mominpura, Nagpur.

                                                            .... PETITIONER

                                // VERSUS //

 1)       Commissioner of Police, Nagpur,
          CP Office, Civil Lines, Nagpur.

 2)       Police Station Gittikhadan,
          Through Police Station Officer,
          District Nagpur.

 3)       Salim Baig S/o Nasir Baig,
          Aged Major, Occu.- Private.

 4)       Mirza Shaharyar Baig,
          Aged Major, Occu.- Private.

 5)       Mirza Asfandamar Baig,
          Aged Major, Occu.- Private.
          (Deleted as per order dt.5.2.2020)


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   Judgment                                2                          Cri.W.P.24.2020.odt




 6)       Mirza Kubna Asif Baig,
          Aged Major, Occu.- Private,

 7)       Mirza Firoz Baig,
          Aged Major, Occu.- Private.

 8)       Mirza Shariq Baig S/o Mirza Azim Baig,
          Aged Major, Occu.- Private.

 9)       Mirza Arif Baig S/o Mirza Azim Baig,
          Aged Major, Occu.- Private.

 10)      Sarvat Tanveer Ahmed,
          Aged Major, Occu.- Private.

 11)      Mirza Haris Baig,
          Aged Major, Occu.- Private.

 12)      Mirza Azim Baig,
          Aged Major, Occu.- Private.
          (Deleted as per order dt.5.2.2020)

          Respondent Nos.3 to 12, all
          R/o. Mominura, Kasabpura,
          near Muslim Canteen, Nagpur.

 13)      Sudhakar J. Kokode,
          Aged Major, Occu.- Police
          Sub-Inspector,
          R/o. C/o. Gittikhadan Police
          Station, Nagpur.
                                               .... RESPONDENTS
  ______________________________________________________________
      Shri Manish Shukla, Advocate h/f Shri S. P. Bhandarkar,
      Advocate for the petitioner.
      Shri A.S. Fulzele, Addl.P.P. for the respondent Nos.1 and 2.
      Shri A. S. Deshpande, Advocate for the respondent Nos.3, 4, 6
      to 11.
 ______________________________________________________________

                           CORAM : SUNIL B. SHUKRE AND
                                   AVINASH G. GHAROTE, JJ.

DATED : 17.02.2021.

Judgment 3 Cri.W.P.24.2020.odt

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

1. Heard. Rule. Rule made returnable forthwith.

2. Heard finally by consent of the learned counsel appearing

for the parties.

3. It is the contention of the learned counsel for the

petitioners that in spite of the respondent Nos.3, 4, 6 to 11 having

committed the offences of criminal trespass, mischief, rioting and

indulging in violence, the remaining respondent are shielding these

respondents by refusing to register the crime under Sections 143, 147,

324, 336, 447 and 506 read with Sections 149 and 34 of the Indian

Penal Code. In support, learned counsel for the petitioner has invited

our attention to copy of the complaint filed on record which is

available on page Nos.139 to 141. This complaint was filed by the

petitioners on 10.12.2019.

4. Shri Deshpande, learned counsel for the respondent Nos.3,

4, 6 to 11 submits that the allegations made in the First Information

Report are vague as they do not make any mention of the date on

which, the alleged incident took place and who had actually committed

which of the acts alleged in the complaint. He submits that prior to

filing of this complaint, there was one more complaint filed by the

Judgment 4 Cri.W.P.24.2020.odt

petitioners on 20.10.2019 and it only alleged that these respondents

did not have any valid title-deed to possess the property and that these

respondents had issued a threat on the life of the petitioners and again,

the date and the time, so relevant in such cases were not stated. He

submits that the dispute involved in the present case is actually a civil

dispute and it is evident from the fact that these petitioners have filed

two separate civil suits against these respondents. He points out that in

Reg.Civil Suit No. 1594 of 2019, these petitioners have sought a

declaration and injunction against these respondents on the basis that

they are the owners of the disputed properties by virtue of registered

sale-deed dated 04.12.2019 executed in their favour by the original

owner and in the other Reg.Civil Suit No.28 of 2020, the petitioners

have claimed relief of cancellation of a registered sale-deed executed

way back in the year 1954 by the original owner in favour of these

respondents. He submits that these material facts are suppressed from

this Court as they are not mentioned in the memo of petition filed by

the petitioners. He also submits that it is only because of pendency of a

civil dispute between these parties that the petitioners, out of

annoyance, have filed a false and vague complaint against these

respondents.

5. So far as filing of the two civil suits by these petitioners

against the respondents who have been sought to be made as accused

Judgment 5 Cri.W.P.24.2020.odt

by them is concerned, we must say that there is no dispute. The

learned counsel for the petitioners, upon instructions, admits that such

two civil suits are indeed filed by these petitioners against the

respondents - proposed accused. However, filing of such civil suits and

pendency of a civil dispute as regards the subject properties are the

facts which are suppressed from this Court. We are of view that the

petitioners have not approached this Court with clean hands and for

this reason alone, the petition deserves to be dismissed.

6. Apart from what is stated above, we find that in both the

complaints, referred to earlier, nothing is mentioned about the dates

and the time at which alleged incident took place. There is also no

mention about the presence of any of the proposed accused and

particular role played by them. If such vague allegations are made, we

are doubtful, if there could be any prima facie commission of any

cognizable offences, so necessary for the police to register offences

under Section 154 of the Cr.P.C. In such a case, it would be better for

the aggrieved person to think of an alternate remedy which could be

more effective. Such remedy would be available in law under Section

190 read with Section 200 of the Cr.P.C. or in other words in the nature

of a private complaint.

7. In the case of Aleque Padamsee and Ors. Vs. Union of India

and Ors., (2007) 6 SCC 171, while dealing with the powers of the

Judgment 6 Cri.W.P.24.2020.odt

police under Section 154 and 156 of the Cr.P.C., the Supreme Court has

held that when the information is laid with the police but no action in

that behalf is taken, the complainant can under Section 190 read with

Section 200 of Cr.P.C. lay the complaint before the Magistrate having

jurisdiction to take cognizance of the offence and in that case the

Magistrate would be required to enquire into the complaint as provided

in Chapter 15 of the Code. Relevant observations of the Supreme Court

appearing in paragraph Nos.6 and 7 are reproduced as under :-

"6. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code 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 Chapter 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 Chapter 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 could issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) vs. Union of India and Others [(1996) 11 SCC 582]. It was specifically observed that a writ petition in such cases is not to be entertained. The above position was again highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra [(2004) 7 SCC 768], Minu Kumari and Another v. State of Bihar and Others [(2006) 4 SCC 359] and Hari Singh v. State of U.P. (2006 (5) SCC 733).

7. Whenever any information is received by the police about the alleged commission of offence which is a

Judgment 7 Cri.W.P.24.2020.odt

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 as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences's case (supra) and re-iterated in Gangadhar's case (supra) 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 in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumari's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was re- iterated in Lallan Chaudhary and Ors. V. State of Bihar (AIR 2006 SC 3376). The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra). 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 out. 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) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were de-linked from the aforesaid writ petitions. "

In the present case, we have already found that the two complaints

filed by the petitioners contain vague allegations and therefore, it is

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difficult to reach to a conclusion that these allegations by themselves

prima facie constitute some cognizable offences. We have also found

that as the petitioners have not approached this Court with clean

hands, the petitioners do not deserve any assistance from this Court.

That apart, the petitioners also have an alternate remedy available in

law, if the petitioners choose to avail of the same.

8. In view of above, we find that there is no substance in this

petition and it is dismissed as such.

Rule is discharged.

            (AVINASH G. GHAROTE, J.)               (SUNIL B. SHUKRE J.)




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