Mohammad Shafique Mohammad Yakub @ Shafique Raja Vs the State of Mah. Thr. Secretary of Home Deptt. and Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH : NAGPUR Criminal Writ Petition No. 136 of 2012 [Mohd. Shafique Mohd. Yakub @ Shafique Raja Vs. State of Mah. & others]

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Office Notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's orders
or directions and Registrar's orders.

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Mr. S.S. Dhengale, Adv., for the petitioner.
Mr. N.W. Sambre, Public Prosecutor for respondent
nos. 1 to 8.
Mr. C.S. Kaptan, Adv., for respondent nos. 9 and 10.
Mr. N.R. Saboo, Adv., for respondent no.12.
Mr. Anil Mardikar, Adv., for respondent no.13.

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CORAM: P.V. HARDAS AND
M.L. TAHALIYANI, JJ.

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DATE : 08th August, 2012.

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01.By this petition under Article 226 of the
Constitution of India, the petitioner prays for
grant of following reliefs:-

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�(a)to direct the respondent nos. 3 to 8 to register FIR against the respondent nos. 9 to 13 and to initiate investigation into the report dated 19.11.2011 and 20.11.2011 lodged by the petitioner to the various police stations at Amravati;

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(b)toregisterFIRagainst
respondent nos. 9 to 13 for the
offences punishable U/Sec. 120-B,
420 r/w Section 34 of Indian

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Penal Code and u/Sec. 52 of
MaharashtraRegionalTown
Planning Act, 1966 and Sub-
section 8 of Section 189 of the
Maharashtra Municipalities Act,
1965 and also u/ss 8 & 9 of
BombayPreventionof
fragmentation and Consolidation
of Holdings Act, 1947 as well as
byelaws 10 of Building Byelaws
and Development Control Rules for
Maharashtraandinitiate
appropriate proceeding against
them before court of law;�

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02.It appears that the petitioner had lodged
reports on 19th and 20th November, 2011 with
Police Stations who are respondents to this
petition, alleging therein commission of
various irregularities by the concerned
respondents to this petition, inasmuch that
while sanctioning various layouts, ten per cent
of land, which was mandatorily required to be
kept open for public utility purposes, was not
ordered to be kept open. It is also alleged
that the Town Planners, who are respondent nos.
11 to 13, had recommended grant of sanction to
the layouts and they, thus, connived with the
commission of offences. The other authorities
are alleged to have granted permission for
conversion of land for non-agricultural use in
breach of the provisions of law. It is also
urged before us that in this manner, nearly
sixty-one layouts consisting of thousands of
plots were sanctioned. The learned counsel for

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the petitioner has also urged before us that on
the petitioner�s representation to the Govt.,
the Govt. has ordered stay to the further sale
and transfer of the plots in those layouts. It
is also urged by the learned counsel for the
petitioner that the documents annexed to the
petition, including the correspondence, would
demonstrate prima facie commission of offences.

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03.It is the submission of the learned
counsel for the petitioner that since the
reports lodged by the petitioner disclose prima
facie commission of cognizable offences, the
concerned Police Stations ought to have
registeredoffencesagainstthe

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respondents/accused named therein. Failure of
the concerned Police Stations in registering
offences has led the petitioner to file this
petition. To support his contention, learned
counsel for the petitioner has relied upon the
reported Judgment of the Division Bench of this
Court in case of Mrs. Charu Kishor Mehta Vs.
State of Maharashtra & another[2011 ALL MR
(Cri) 173]. The Division Bench, by relying upon
the two earlier Judgments of Supreme Court, at
paragraph 16 of its judgment has held that the
remedy, which would be available to the
petitioner in such instances, would be filing
of [1] a complaint before a Magistrate, and [2]
an application under Section 156 (3) of

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Criminal Procedure Code before a Magistrate of
competent jurisdiction. The Division Bench
further held that filing of a Writ Petition or
approaching the High Court under Section 482 of
Criminal Procedure Code is not the remedy.

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04.In the peculiar facts of that case, the
Division Bench came to the conclusion that the
facts justify the exercise of jurisdiction by
the Bench in issuance of directions to the
Police Station therein for registration of the
offences, as public money was involved and
certain allegations of misappropriation of
amount had been made.

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05.A reference, at this juncture, may
usefully be made to the Judgment of Supreme
Court in case of Aleque Padamsee & others Vs.
Union of India & others [(2007) 6 SCC 171],
wherein the Supreme Court at Paragraph 8 has
held thus :-

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�8.The writ petitions are finally
disposed of with the following
directions:

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(1)If any person is aggrieved
by the inaction of the police
officials in registering the
FIR, the modalities contained in
Section 190 read with Section
200 of the Code are to be
adopted and observed.

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(2)It is open to any person
aggrieved by the inaction of the
police officials to adopt the

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remedy in terms of the aforesaid provisions.�

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06.Similarly, the Supreme Court in case of
Sakiri Vasu Vs. State of U.P. & others [AIR
1008 SC 907], while examining the question
about the maintainability of a petition for
issuance of a Writ of Mandamus, also came to
the conclusion that the aggrieved person
therein had a remedy of filing either a
complaint before a Magistrate, or an
application under Section 156 (3) of Criminal
Procedure Code. Subsequently, the aforesaid
view also finds support in the Judgment of
Supreme Court in case of Hari Singh Vs. State
of U.P. [(2006) 5 SCC 733].

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07.In the light of the aforesaid Judgments
of Supreme Court to which we have adverted to
in foregoing paragraphs, according to us,
therefore, the present Writ Petition seeking
the reliefs which are quoted in the beginning
of para 1 above is not maintainable and those
reliefs cannot be granted to the petitioner.
The ratio laid down by the Division Bench of
this Court in Charu Kishor Mehta Vs. State of
Maharashtra [cited supra] in the light of the
facts of this case is not applicable to the
present case.

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08.The Division Bench of this Court in para

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5 of its order dated 25th April, 2012 had
directed the Govt., to place on record of this
Court a policy decision to be taken by the
Govt. as to the action proposed to be taken in
respect of various matters covered in this
petition.

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09.Learned Public Prosecutor states on
instructions that a decision would be arrived
at on or before 20th October, 2012 and a copy of
such decision would accordingly be placed on
record of this petition towards compliance of
the said order.

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10. We accordingly dismiss this petition.

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11.The petitioner may, if advised, avail the
alternate remedies available to him in law.

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12.In the circumstances, there shall be no
order as to costs.

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JudgeJudge

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|Hedau|

Mohammad Shafique Mohammad Yakub @ Shafique Raja v. the State of Mah. Thr. Secretary of Home Deptt. and Others

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Mohammad Shafique Mohammad Yakub @ Shafique Raja v. the State of Mah. Thr. Secretary of Home Deptt. and Others

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