Dinaji Balvantji Thakor Through ... vs State Of Gujarat
2021 Latest Caselaw 2591 Guj

               R/SCR.A/7785/2020                            ORDER




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
   R/SPECIAL CRIMINAL APPLICATION NO. 7785 of 2020
 ============================================
         DINAJI BALVANTJI THAKOR THROUGH HANSABEN
                         BALVANTJI THAKOR
                                Versus
                          STATE OF GUJARAT
 ============================================
 Appearance:
 SHIVAM H CHOKSHI(9120) for the Applicant(s) No. 1
  for the Respondent(s) No. 2
 MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR(2)
 for the Respondent(s) No. 1
 ============================================

 CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                   Date : 18/02/2021

                                    ORAL ORDER

1. Heard learned Advocate Shri Shivam H. Chokshi for the petitioner

and learned APP Ms. Maithili D. Mehta for the respondent-State.

2. Rule returnable forthwith. Learned APP waives service of rule on

behalf of respondents.

3. By way of this petition under Article 226 of the Constitution of India,

the petitioner had prayed for appropriate writ, order or direction directing

the concerned respondents to accept the complaint of the present petitioner

and to take appropriate action on the basis of the application given by the

petitioner.

R/SCR.A/7785/2020 ORDER

4. The petitioner is aggrieved by non-registration of the first

information report on the basis of his written representation/complaint

dated 12.10.2020, addressed by the petitioner to the respondent No. 2 and

other higher police officers. It is his say that though cognizable offence is

made out in the said complaint, his complaint is not being registered as the

first information report. In support of his submissions, the learned counsel

appearing for the petitioner has relied upon the decision of the Apex Court

in the case of Lalita Kumari v. State of Uttar and others,

reported in (2014) 2 SCC 1 and State of Telangana v. Habib

Abdullah Jeelani and others, reported in (2017) 2 SCC 779.

5. Both the sides have been heard. Having considered the submissions

made by both the sides and the material on record, as also having

considered the judgment of the Apex Court in the case of Lalita Kumari

(supra), this Court is of the opinion that the grievance put forth by the

petitioner can be put an end to by issuing appropriate directions to the

respondent authorities. At this stage, it would be beneficial to quote the

relevant paragraphs of the said decision, which reads as under :

"120. In view of the aforesaid discussion, we hold:

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a

R/SCR.A/7785/2020 ORDER

situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of 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.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused

R/SCR.A/7785/2020 ORDER

and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

6. At this stage, it would also be apt to reproduce the relevant paragraph

from the decision of the Apex Court in the case of Habib Jeelani (supra),

which reads as under :

"The exceptions that were carved out pertain to medical negligence cases as has been stated in Jacob Mathew v. State of Punjab. The Court also referred to the authorities in P. Sirajuddin v. State of Madras and CBI v. Tapan Kumar Singh and finally held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence."

7. Bearing in mind the aforementioned ratio laid down by the Apex

Court as well as the contents of the said complaint made by the petitioner,

R/SCR.A/7785/2020 ORDER

the respondent No. 2 shall look into the said written complaint of the

petitioner and lodge the first information report if any cognizable offence is

made out therein; if not, for the limited purpose of knowing as to whether

cognizable offence is revealed, the preliminary inquiry shall be conducted.

The petitioner shall be forwarded a copy of the first information report, if

any registered, at his residence forthwith. In the event, the respondent No. 2

chooses not to lodge the first information report, the petitioner shall be

communicated in writing the brief reasons accordingly. Such exercise shall

be completed by the respondent No. 2 at the earliest without further loss of

time, but not later than eight weeks from the date of receipt of a

copy of this order.

8. If the petitioner is aggrieved by the decision of the respondent No. 2,

the petitioner may approach the immediate Senior Officer of the respondent

No.2 under section 154(3) of the Code of Criminal Procedure, 1973. If the

petitioner approaches such Senior Officer under section 154(3) of the Code

of Criminal Procedure, he shall look into the complaint of the petitioner and

decide the same bearing in mind the dictum of the Apex Court in the case

of Lalita Kumari (supra) and in the case of Habib Abdullah

Jeelani (supra) within a period of one week from the date of

receipt of such complaint.

R/SCR.A/7785/2020 ORDER

9. The respondent No. 2 and Officer Senior to him as the case may be,

should adhere to the time line as directed hereinabove. If the petitioner is

not satisfied with the outcome, he can take a legal recourse thereafter to

lodge private complaint or any other recourse which is permissible in

accordance with law.

10. With the above direction, present petition stands disposed of

accordingly. Rule is made absolute to the extent aforesaid. Registry to

communicate this order through Email to the concerned Authorities.

(NIKHIL S. KARIEL,J) niru