Afsar Khan S/O Munna Khan And ... vs State Of Maharashtra Thr. Pso Ps ...
2021 Latest Caselaw 8326 Bom

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


                        CRIMINAL WRIT PETITION NO. 597/2020


 1]       Afsar Khan S/o Munna Khan,
          Aged 35 years, Occ. Business,
          R/o Thakur Plot, Sindiban,
          Near Badataj Bagh, Nagpur

 2]       Smt. Shama Srdasr Husain Sayyad,
          Aged 41 years, Occ. Private,
          R/o. Plot No. 93, Near Ashakar Aata Chakki,
          Rameshwari, Bhagwan Nagar,
          Nagpur

                                                                   .... PETITIONERS

                                    // VERSUS //

 1]       State of Maharashtra,
          Through Police Station Sakkardara,
          Nagpur

 2]       Duryodhan Nilkanth Pohankar,
          Aged 55 years, Occ. Private,
          R/o. Nr. Resident of Sampat Rakas,
          Ashirwad Nagar Road, Bidipeth,
          Nagpur
                                                                 .... RESPONDENTS

  *******************************************************************
              Shri V.R. Baseshankar, Advocate for the petitioners
               Shri S.S. Doifode, APP for the respondent no. 1
  *******************************************************************

                           CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

JUNE 23, 2021

JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard. RULE. Rule made returnable forthwith.

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 2]               By this writ petition under Article 226 of the Constitution of

India, the petitioners are seeking direction against the respondent no. 1 to

conduct proper investigation and supply copy of the complaint filed against

them with the respondent no. 1 by the respondent no. 2.

3] The petitioner no. 1 is a businessman running the business of

cable network and the petitioner no. 2 is his sister-in-law. It is alleged that

the respondent no. 2 entered into an agreement to sell with the petitioner

no. 2 on 20/02/2018 in relation to House Property No. 3532/A, situated at

Khasra No. 32/1, P.H.N. 39, Mouza Bidipeth, Nagpur ad-measuring 1000

square foot for consideration of Rs. 17 lakh. It is alleged that the petitioner

no. 2 paid an amount of Rs. 14 lakh from 23/06/2016 to 20/02/2018 and

Rs. 1 lakh by cheque dated 03/02/2018. It is alleged that it is agreed

between the petitioner no. 2 and the respondent no. 2 that the remaining

amount of Rs. 2 lakh shall be paid at the time of registration of sale-deed,

however, at the request of the respondent no. 2, the petitioner no. 2 paid an

amount of Rs. 50,000/- by cheque. It is alleged that since the respondent

no. 2 failed to execute the sale-deed as per agreement to sell, the petitioner

no. 2 filed S.C.S. No. 248/2020 before the Civil Judge Senior Division,

Nagpur seeking relief of specific performance amongst other reliefs. It is

stated that the respondent no. 2 has appeared before the Civil Court and filed

his written statement in the month of July, 2020.

4] It is stated that after getting notice from the Civil Court, the

respondent no. 2 in the month of August 2020 filed a complaint with the

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respondent no. 1 alleging illegal money lending act on the part of the

petitioner no. 1. It is alleged that the respondent no. 1 - Police Station called

the petitioners in the police station for further investigation in relation to the

complaint filed by the respondent no. 2 frequently without registration of the

offence and without issuing summons and notice. It is alleged that the

petitioners were required to stand for hours in the police station without

proper investigation against them and therefore the petitioners have filed the

present writ petition.

5] This Court on 19/06/2021 issued notice to the respondent

no. 1. The respondent no. 1 in pursuance of the notice issued by this court

filed reply dated 19/06/2021 sworn by Santosh P. Ingle, Police Sub-Inspector,

Sakkardara Police Station, Nagpur. It is stated in the said reply that the

respondent no. 2 has filed a complaint with the respondent no. 1 - Police

Station alleging that the respondent no. 2 had taken hand loan amounting to

Rs. 50,000/- and subsequently the said amount was refunded to the

petitioner no. 1, but the petitioner no. 1 took signature of the respondent

no. 2 on blank stamp paper and prepared false and bogus agreement to sell

with an intention to grab the house property of the respondent no. 2. It is

stated that the Police Station Officer of the respondent no. 1 - Police Station

directed the Police Station In-charge Shri Ingle to make an inquiry by calling

both the parties, and therefore on 25/08/2020, the respondent no. 2 was

called in the police station for recording his statement along with the copy of

agreement to sell. It is stated that on 09/10/2020, the respondent no. 1

called both the petitioners for making inquiry. It is stated that the petitioners

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have not supplied the copy of the document, and therefore the respondent

no. 1 has issued letter to the petitioner no. 1 on 12/06/2021. It is stated that

the respondent no. 1 has recorded the statement of the petitioner no. 1 who

has supplied the copies of the present petition, agreement to sell, civil suit

and written statement. It is stated that the respondent no. 1 has recorded the

statements of both the parties in relation to the complaint filed by the

respondent no. 2. It is stated that most of the inquiry is completed and the

respondent no. 1 has sent inquiry report to the Police Station Officer of the

respondent no. 1 - Police Station for necessary action.

6] It is trite that it is mandatory as per Section 154 of the Code of

Criminal Procedure to register the first information report if the information

discloses commission of cognizable offence. It is also settled that no

preliminary inquiry is permissible when the complaint discloses a cognizable

offence. It is only if the information received does not disclose a cognizable

offence, but requires a necessity for an inquiry, a preliminary inquiry can be

conducted to ascertain whether cognizable offence is disclosed or not. It

needs to be noted that if the inquiry discloses commission of a cognizable

offence, first information report must be registered. In the cases where the

preliminary inquiry ends in closing the complaint, a copy of such closure

must be supplied to the first informant forthwith and not later than one

week. The scope of the 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. It is mandatory on the part of the

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police that a preliminary inquiry should be made within time bound program

and in any case the said period should not exceed 7 days.

7] From the affidavit-in-reply filed by the respondent no. 1, it

appears that the respondent no. 1 has failed to hold the preliminary inquiry

within a period of 7 days. Since there is delay of more than three months in

reporting the matter without satisfactorily explaining the reasons for the

delay, it was necessary for the respondent no. 1 to hold preliminary inquiry

but it appears that the respondent no. 1 has failed in its duty to comply with

the Guideline No. 120.7 laid down in the case of Lalita Kumari vs.

Government of Uttar Pradesh and others reported in 2014 (2) SCC 1.

8] In the light of the judgment of the Hon'ble Apex Court in the

case of Lalita Kumari (supra), we direct that if the preliminary inquiry held

by the respondent no. 1 discloses cognizable offence, the first information

report can be registered, and the copy of which be furnished to the first

informant as contemplated under Section 154(2) of the Code of Criminal

Procedure. However, if no cognizable offence is found in the inquiry, it be

communicated to petitioners as well as the respondent no. 2.

 9]               The petition is partly allowed in the above terms.




                   (JUDGE)                                   (JUDGE)



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