Dismissed

Gautam Ramanbhai Patel and Anr. v. the State of Maharashtra and Ors.

Bombay HC24 Apr 2013WP/1213/2013

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition seeking a mandatory direction to the police to register a case. The court held that mere apprehension of bias due to accused being police officers does not render private complaints or Section 156(3) remedies inadequate, and distinguished prior Division Bench precedents superseded by Supreme Court rulings.

What did the court decide?

Writ petition dismissed; petitioners relegated to filing a private complaint or an application under Section 156(3) CrPC.

Gautam Ramanbhai Patel and Anr. Vs the State of… — Criminal Trial and Appeal | Bombay HC (2013)

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Vidya amin

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO. 1213 OF 2013

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Gautam Ramanbhai Patel & Anr. … Petitioners vs. State of Maharashtra & Ors. ... Respondents

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Mr. A.H.H. Ponda a/w. Mr. Subodh Desai a/w. Mr. Manohar V. Shetty for the petitioners.

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Ms. P.H. Kantharia, APP for the State.

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Mr. Hrishikesh Mundargi a/w. Mr. Rishikesh Soni i/b. DSK Legal for respondent no. 5.

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CORAM : P.V. HARDAS & MRS. MRIDULA BHATKAR, JJ. DATE : 24^th April, 2013.

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P.C.

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This is a petition under Article 226 of the Constitution of India

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by which the petitioners pray for issuance of writ of mandamus directing the concerned police station to register an offence against the accused named by the petitioners in their complaint.

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Mr. Ponda, learned counsel for the petitioners has referred to various documents which the petitioners have annexed along with the petition. The principal contention, which is advanced before us by the learned counsel for the petitioners, is that since the police officers are named as accused in the complaints, the apprehension of the petitioners is well founded that fair investigation would not be carried out even in the event the petitioners were to resort to the

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alternate remedies available to them in law.

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The learned counsel for the petitioners has referred to the Division Bench judgments of this Court in Kalpana Kutty vs. State of Maharashtra, 2008 (1) Bom. C.R. (Cri) 10; Farook Mohammed Kasim Mapkar vs. Commissioner of Police and Others, 2009 (2) Bom. C.R. (Cri) 900; Shayamsunder R. Agarwal vs. State of Maharashtra & Ors., 2008 (Supp.) Bom. C.R. 269 and unreported judgment of the Division Bench of this Court in Criminal Writ Petition No. 2473 of 2006 in Ramprasad Vishwanath Gupta vs. A.N. Roy, the Commissioner of Police & Ors. dated 13^th August, 2009.

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At the outset, we may point out that in the judgments in Shayamsunder R. Agarwal (supra) and Ramprasad Vishwanath Gupta (supra), the judgment of the Supreme Court in Aleque Padamsee & Ors. vs. Union of India & Ors., 2007(6) SCC 171 was not brought to the notice of the learned Judges who had decided the said cases. In the judgment of Kalpana Kutty (supra) and Farook Mohammed Kasim Mapkar (supra), the judgment of the Supreme Court in Aleque Padamsee & Ors. vs. Union of India (supra) was indeed brought to the notice of the learned Judges. The ultimate ratio of these judgments is that (1) in the event of police refusing to register an offence, a petition under Article 226 of the Constitution of India or a

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petition under section 482 of Code of Criminal Procedure could be

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filed by the aggrieved person making a grievance of non-registration of the cognizable offence. (2) The aforesaid proceedings whether should be entertained by this Court or not would depend upon the facts and circumstances of each case. (3) The learned Judges have further observed that ordinarily aggrieved person should be relegated to an alternate remedy of filing a private complaint (4) However, in gross cases of a grave injustice such a petition would be entertained by this Court. Such cases would obviously be exceptional.

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Relying on the aforesaid ratio, Mr. Ponda, learned counsel for the petitioners has urged before us that the present petition indeed would be classified as one such petition in which this Court should invoke its extraordinary jurisdiction in issuing writ of mandamus directing the respondents to register an offence. An apprehension is extremed by the learned counsel for the petitioners that since the police officers have been named as accused by the petitioners, the investigation which would be carried out eventually would not be a fair investigation and is bound to be partial investigation. In such circumstances, therefore, it is urged before us that the alternate remedy would be a remedy but would not be remedy which can be said to be available to the petitioners.

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The learned APP has stated before us, on instructions from P.I. Mr. R.K. Chikale, Bhandup Police Station who is present in the Court,

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that pursuant to the filing of the complaint/report of the petitioners, no offence has been registered against the petitioners.

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We may at this juncture usefully refer to the judgment of the Supreme Court in Aleque Padamsee & Ors. vs. Union of India and Ors. (supra). 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 remedy in terms of the aforesaid provisions.

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(3)So far as non-grant of sanction aspect is concerned, it is for the concerned government to deal with the prayer. The concerned government would do well to deal with the matter within three months from the date of receipt of this order.

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(4)We make it clear that we have not expressed any opinion on the merits of the case.”

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Similar view is reiterated by the Supreme Court in Sakiri Vasu vs. State of Uttar Pradesh & Ors., AIR 2008 SC 907 as well as in a recent judgment of the Supreme Court in Kunga Nima Lepcha & Ors. vs. State of Sikkim & Ors., (2010) 4 SCC 513. The aforesaid ratio of the judgments of the Supreme Court, adverted to above, has been tried to be distinguished by the learned counsel for the petitioners on a specious plea that the accused in the aforesaid proceedings before the Supreme Court were not police officers and consequently the ratio of the Supreme Court as laid down in these three judgments would not be applicable to the facts of the case of the petitioners, as the petitioners have alleged that the offenders were the police officers. According to us, the aforesaid distinction is an extremely artificial distinction and the ratio of the Supreme Court has to be applied in all cases whether the accused named therein are police officers or private persons.

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The ratio of the Division Bench judgments referred to above are contrary to the law laid down by the Supreme Court in the judgment of Aleque Padamsee & Ors. (supra), Sakiri Vasu (supra), Kunga Nima Lepcha & Ors. vs. State of Sikkim & Ors. (supra) and therefore it is to be held that the ratio is restricted to the facts of those cases only. In the light of the ratio of the judgments of the Supreme Court adverted to above, the petitioners have to avail an alternate remedy available

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to them in law in the event they are aggrieved by the non-registration of the offence by the police. The petitioners have remedy available to them in law of either filing a private complaint or an application under section 156(3) of the Code of Criminal Procedure.

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The apprehension expressed by the learned counsel for the petitioners that in the event the learned Magistrate orders the registration of the offence, there would not be fair investigation can be allayed by the remedy available to the petitioners in law of seeking transfer of the investigation. The apprehension, therefore, can be allayed and merely on account of apprehension, a writ of mandamus cannot be issued by the respondents. We, accordingly, dismiss this petition relegating the petitioners to avail the remedies available to them in law. We make it clear that in the event a private complaint or an application is indeed filed by the petitioners, dismissal of this petition would not come in the way of the learned Magistrate in dealing and deciding the complaint/application on its own merits.

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

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(MRS. MRIDULA BHATKAR, J.) (P.V. HARDAS, J.)

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Gautam Ramanbhai Patel and Anr. v. the State of Maharashtra and Ors.

Case brief

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Gautam Ramanbhai Patel and Anr. v. the State of Maharashtra and Ors.

Case brief

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