Ajay S/O. Daluramji Borele vs State Of Maharashtra Thr. The ...
2021 Latest Caselaw 12964 Bom

                                             1                               36-wp-1193-18j.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                 CRIMINAL WRIT PETITION NO. 1193 OF 2018

  Ajay S/o. Daluramji Borele,
  Aged about 40 years, Occ. Social Work &
  RTI Activist,
  R/o. Pushpakunj Society, Wadgaon Road,
  Yavatmal.                                                              . . . PETITIONER

                         ...V E R S U S..

  1. State of Maharashtra through
     the Secretary, Ministry for Home,
     Mantralaya, Mumbai.

  2. State of Maharashtra through
     The Superintendent of Police,
     Yavatmal.

  3. State of Maharashtra through
     Police Station Officer,
     Cyber Crime, Police Station Wadgaon,
     Yavatmal.                                                       . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Shri J. M. Gandhi, Advocate for petitioner.
 Shri S. M. Ghodeswar, A.P.P. for respondents/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 09.09.2021

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

1. Heard.

2. Rule. Rule is made returnable forthwith. Heard finally by

consent of the parties.

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3. By this Writ Petition under Article 226 of the Constitution

of the India, the petitioner is seeking directions against the

respondents for registration of offence in pursuance of complaint filed

by the petitioner on 10.11.2008 with respondent no. 3- Police Station.

4. It is the case of the petitioner that he received indecent,

defamatory and abusive message on his Social Media App (Facebook)

on 07.11.2018, which was sent by one Geet Umesh Joban, which

tarnished image of the petitioner and his family. It is alleged that the

petitioner on 11.11.2018 filed a complaint with the respondent no. 3-

Police Station. Copy of the said complaint was also delivered to the

office of the respondent no. 2 to take cognizance of the offence alleged

against Geet Umesh Joban. It is alleged that the respondent no. 3

registered the said complaint as non-cognizable offence; refused to

register cognizable offence and to carried out the investigation. It is

alleged that respondent no. 2 ought to have directed respondent no. 3

to register offence. The petitioner has therefore filed the present

petition seeking direction against the respondents to register offence

against Geet Umesh Joban.

5. This Court on 09.01.2019 issued notice for final disposal

to the respondents. The respondent no. 3, in pursuance of the said

notice, has filed reply stating that the complaint filed by the petitioner

does not disclose ingredients of the offence alleged and refused the

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request to register the offence under Section 66A of the Information

Technology Act, 2000.

6. Having carefully scrutinized the allegations in the petition

and the complaint dated 10.11.2018 filed by the petitioner, which is at

Annexure-2, we are of the considered view that if the petitioner has

grievance against respondent no. 3 for non-registration of offence in

relation to the complaint filed by him, the remedy of the petitioner is

not to approach this Court under Article 226 of the Constitution of

India. If the petitioner desires, he may approach the Jurisdictional

Magistrate under Section 156(3) of the Code of Criminal Procedure. If

the compliant under Section 156(3) of the Code of Criminal Procedure

is filed and if the Jurisdictional Magistrate is prima facie satisfied and

deems it necessary, then he can direct that First Information Report

(FIR) be registered.

7. It is settled law that if a person has grievance that his FIR

has not been registered by the Police Station, the first remedy is to

approach concerned Superintendent of Police under Section 154(3) of

the Code of Criminal Procedure. If despite approaching the

Superintendent of Police, his grievance still persists, he can approach

the Jurisdictional Magistrate under Section 156(3) of the Code of

Criminal Procedure instead of filing Writ Petition under Article 226 of

the Constitution of India. {Sakiri Vasu Vs. State of U. P. and others

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[(2008) 2 SCC 409] and M. Subramaniam and another Vs. S. Janaki

and another [(2020) 16 SCC 728]}.

8. In view of the law laid down by the Apex Court, we

dispose of the present Writ Petition by granting liberty to the petitioner

to approach the Jurisdictional Magistrate by way of a complaint under

Section 156(3) of the Code of Criminal Procedure, in relation to the

complaint dated 10.11.2018 received by the respondent no. 3 on

11.11.2018. If the said application is filed, the learned Jurisdictional

Magistrate shall decide it in accordance with law.

9. The Writ Petition disposed of in the above terms.

                               JUDGE                                  JUDGE

RR Jaiswal