Bombay High Court
Urmila W/O Prakash Gupta vs The State Of Mha. Thr. Pso Ps Ambazari ... on 2 August, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-NAG:8310-DB
1/11 5wp692-22 (JUD).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.692 OF 2022
1) Smt. Urmila w/o Prakash Gupta,
Aged 62 years, Occu.: Retired RBI
Employee, R/o Plot No.54, Kachimet,
Near, Postal Colony, Amravati Road,
Nagpur.
.... Petitioner(s)
// VERSUS //
1) The State of Maharashtra, Through:
Police Station Officer, Police Station
Ambazari, District Nagpur.
2) The Commissioner of Police, Police
Headquarters, Civil Lines, Nagpur,
District Nagpur.
.... Respondent(s)
Mr. Aakash Gupta, Advocate for the Petitioner/s
Mr. H.D. Futane, AGP for the Respondent Nos.1 and 2/State
CORAM : SMT. VIBHA KANKANWADI
& MRS. VRUSHALI V. JOSHI, JJ.
RESERVED ON : 24.07.2024.
PRONOUNCED ON : 02.08.2024
JUDGMENT :
(PER : SMT. VIBHA KANKANWADI, J )
1. Heard Mr. Aakash Gupta, learned Advocate for the
petitioner and the learned APP for the State.
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2. Rule. Rule is made returnable forthwith. Heard finally by the
consent of the learned Advocates for the parties.
3. The petitioner, by invoking the constitutional powers of this
Court under Article 226 and 227 of the Constitution of India, with
inherent powers under Section 482 of the CrPC, seeks following
reliefs:
"(i) Allow the petition, thereby directing the respondents to
comply with the guidelines issued in the judgment delivered in
the case of Lalita Kumari -vs- State of Uttar Pradesh reported in
(2014) 2 SCC I and inquire in the complaint at Annexure-A
accordingly:
(ii) Direct the respondent no.2 to conduct a disciplinary
enquiry into the misconduct of the officers of the respondent
no.1 responsible for shielding the proposed accused and
effectively negating the mandate of the law laid down by the
Hon'ble Apex Court;
(iii) Direct the respondent no.2 to transfer the investigation to
any other independent officer and supervise the investigation
either personally or through another Senior Police Officer;
(iv) and (v) ..."
4. The learned Advocate for the petitioner, after stating the facts
of the case which led to the petitioner to file a complaint before
Ambazari Police Station, Nagpur, submits that the police have not
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adhered to the guidelines issued in Lalita Kumari -vs- State of U.P.
[(2014) 2 SCC 1]. The said complaint on the face of it discloses the
cognizable offence. The complainant had disclosed that her
brother late Tulshiram Nanukuprasad Gupta had executed a Will
in her favour on 16.05.2016 and it was the registered Will,
registered with the office of Joint Sub-Registrar, Class-II, Nagpur
City in the presence of two witnesses. The deceased had
bequeathed the immovable property, bearing Duplex House
No.206/1, G-3, Himalaya Paradise Building, GPO Square Civil
Lines Nagpur to the petitioner. Various dispositions in respect of
movable and immovable property were also made in the said Will.
After the death of Tulsiram, the said Duplex House property was
mutated in the name of the petitioner on 08.01.2019 on the basis of
the said Will. The relatives were having knowledge about
execution of the said Will, however, it appears that the proposed
accused Yogesh Dhanraj Gupta, who is a nephew of the petitioner
as well as the deceased Tulsiram, got the Will forged in his favour
on 04.09.2018 in respect of the said Duplex House. In fact,
Tulsiram was not fit person to execute the said Will due of his
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medical condition on that day and there is absolutely no mention
about earlier Will left by the deceased Tulsiram. Further, there are
suspicious circumstances in which the Will came to be notarized
before the Notary Public as it would not have been possible
because of the medical condition of the deceased Tulsiram to
appear before Notary Public on that day. Therefore, when forgery
has been done, the complaint could not have been literally thrown
in the waste paper-box or cold storage by the police under the
pretext that a civil dispute is pending. When the complaint on the
face of it discloses the cognizable offence, the FIR ought to have
been registered. There is an utter failure on the part of the
concerned Police Officer to record the FIR and carry out the
investigation in view of the Lalita Kumari (supra), a disciplinary
inquiry deserves to be initiated against the erring Police Officers.
5. The learned APP, after relying on the affidavit of V.M. Matre,
PSI, Ambazari, Nagpur City, submits that after the complaint was
lodged a preliminary inquiry was done. It was found that probate
proceedings were pending with 15th Jt. Civil Judge Senior Division
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and Addl. C.J.M., Napgur, bearing Probate Proceedings No.5291
of 2018 and therefore, it was observed that the dispute is of civil
nature and the complainant was asked to take up appropriate
proceedings.
6. At the outset, we would like to say that it cannot be said that
the civil dispute has no angle of a criminal side. In other words, a
transaction can give rise to a civil dispute as well as a criminal
dispute. When the complaint is filed with the police station, then
the police have to say, whether the contents thereof are disclosing
the cognizable offence or not. If they are disclosing the cognizable
offence, then it is incumbent upon the police to register the FIR in
view of Lalita Kumari (supra).
7. We may not approve short-cut adopted by the Ambazari,
Police Station for not taking cognizance of the complaint on the
point that some civil disputes are pending. We make it clear itself
that we are not opining at this stage that the complaint that was
filed by the petitioner with the Ambazari Police Station was
certainly disclosing the cognizable offence. A preliminary inquiry
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made permissible under Lalita Kumari (supra) was not limited to
the extent of Civil proceedings. We had an occasion to go through
the file as the learned APP was directed to make it available. It
appears that the statements of the proposed accused and the Notary
public are only taken and then the conclusion has been arrived at,
which cannot be said to be the complete preliminary inquiry. The
said inquiry could not have been for more than 7 days as per Lalita
Kumari (supra). What is on record before us is the complaint filed
by the petitioner before the police station and the copy of the
registered Will stated to be executed by Tulsiram Nankuprasad
Gupta in favour of the petitioner and some other persons also. It is
a registered Will, and therefore, attaches some value, which can be
said to be more than a document which is registered with Notary
Public. The petitioner has also filed Discharge Summary of
Tulsiram, showing that he was admitted in hospital on 28.08.2018
and was discharged on 05.09.2018 and then, it is said that on
04.09.2018 the Will was registered with the Notary Public, which
is now stated to be forged one. Now it is to be noted that the
petitioner is not directly praying that directions be given to register
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FIR, however, prayer clause (i) shows that the respondents be
directed to comply with the guidelines issued in the judgment in
Lalita Kumari (supra). We are enable to get which directions have
not been followed or expected to be followed. If it is that, upon the
cognizable offence transpiring from the complaint, it should be
registered as FIR; then the petitioner is indirectly praying for
directions to register FIR, which the petitioner cannot ask directly
in view of M. Subramaniam Vs. S. Janaki [(2020 16 SCC 728].
Relying upon Sakiri Vasu Vs. State of U.P. (2008)2 SCC 409 and
Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and others
(2016) 6 SCC 277, it was reiterated that if a person has a grievance
that his FIR has not been registered by the police, or having been
registered, proper investigation is not being done, then the remedy
of the aggrieved person is not to go to the High Court under Article
226 of the Constitution of India, but to approach the Magistrate
concerned under Section 156(3), Cr.P.C. It was further observed in
Sakiri Vasu (supra) that If such an application under Section
156(3), Cr.P.C. is made and the Magistrate is, prima facie, satisfied,
he can direct the F.I.R. to be registered, or if it has already been
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registered, he can direct proper investigation to be done which
includes in his discretion, if he deems it necessary, recommending
change of the Investigating Officer, so that a proper investigation is
done in the matter.
8. The case before the Honb'le Supreme Court was pursuant to
the order passed by Hon'ble Madurai Bench at Madras High Court,
directing the Inspector of Police to register a case i.e. First
Information Report on the basis of complaint and after
investigation file the Final Report in accordance with law. The
Hon'ble Supreme Court, by taking into consideration above two
decisions, set aside the directions given by the High Court for
registration of FIR and investigation and therefore, in such
circumstance, we cannot grant prayer clauses (i) and (iii) in the
present petition.
9. As regards the prayer clause (ii), to direct the respondent
No.2 to conduct a disciplinary inquiry into the misconduct of the
Officers of the respondent No.1 responsible for shielding the
proposed accused, is concerned, it is to be noted that there is no
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evidence that the Officers of the respondent No.1 were responsible
for shielding the proposed accused. Upon the complaint that was
filed by the petitioner, some preliminary inquiry was made and
then it was concluded that in view of pendency of the civil
proceedings, the petitioner should approach the Civil Court. It may
be a wrong decision by the concerned Officer for not taking
cognizance of cognizable offence, if it was transpiring from the face
of the complaint. Every wrong decision cannot lead us to infer that
the said decision is taken with mala fide intention.
10. Therefore, we do no find this to be a fit case where we should
give such kind of direction in absence of concrete evidence. No
doubt in Lalita Kumari (supra) it has been stated that failure to
register the FIR, when it is disclosing cognizable offence, would
lead to disciplinary inquiry has been mentioned, but then the
present petition could be at a premature stage, as we are not
considering or giving opinion that the complaint filed by the
petitioner on 07.10.2021 before Police Station Ambazari, is
disclosing cognizable offence. As aforesaid in Sakiri Vasu (supra),
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the petitioner ought to have approached a Magistrate under Section
156(3) CrPC. The petitioner is relying on Lalita Kumari (supra)
for every purpose which prescribes period of seven days to register
FIR. The complaint that was filed by the petitioner before
Ambazari Police Station was on 07.10.2021 and the
communication was made by the Police Station, Ambazari on
17.01.2022, refusing to register FIR. There is no explanation in the
petition as to why after seven days from 07.10.2021, the petitioner
had not approached the concerned Magistrate under Section
156(3) of CrPC for direction to register FIR. Even till today, the
application under Section 156(3) of the CrPC has not been filed
and therefore, without expressing any opinion on merits, and
whether or not the complaint dated 07.10.2021 is disclosing any
criminal offence of cognizable nature, as stated in M. Subramaniam
(supra), this Court clarifies that a civil dispute should not be given
the colour of a criminal offence and at the same time, mere
pendency of the civil proceeding is not a good ground and
justification for not registering FIR and investigate the matter, if a
criminal offence has been committed.
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11. Further we adopt the same recourse as was adopted in M.
Subramaniam (supra), while dismissing the petition by observing
that this order should not be an impediment in the way of the
petitioner to file appropriate proceedings before Magistrate.
12. With these directions, the present writ petition stands
dismissed.
Rule stands discharged. No costs.
[MRS. VRUSHALI V. JOSHI, J] [SMT. VIBHA KANKANWADI, J]
Signed by: Mr. Niranjan Thawre
Designation: PA To Honourable
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Date: 02/08/2024 16:01:43
