Alleged police assault and unlawful detention prompted requests for FIR registration, CBI investigation and compensation. The court rejected the writ petition, finding no extraordinary circumstances for CBI intervention and leaving statutory criminal remedies available. The connected intervention application was disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
cwp720.14
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.720 OF 2014
Abhimanyu s/o Ravan Ingale,
Age-43 years, Occu:Agri.,
R/o-Kangara,
Tq. & Dist-Osmanabad.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through Secretary,
Home Department, Mantralaya,
Mumbai-32,2) The Commissioner of Police, Aurangabad Division, Aurangabad,3) Inspector General, Aurangabad Division, Aurangabad,4) Inspector General, Nanded Division, Nanded,5) The Superintendent of Police, Osmanabad, Dist-Osmanabad,6) The Police Inspector, Police Station, Bembli, Tq. & Dist-Osmanabad,7) The Collector, Osmanabad, Dist-Osmanabad,cwp720.14
2
8) Central Bureau of Investigation,
Through the Joint Director, Zone-1,
C.B.I. Tanna House, Nathalal Parekh
Marg, Colaba, Mumbai-39.
...RESPONDENTS
...
Shri R.S. Deshmukh Advocate h/f. Shri V.V.
Ingale Advocate for Petitioner.
Shri S.G. Karlekar, A.P.P. for Respondent
Nos. 1 to 7.
...
WITH
CRIMINAL APPLICATION NO.4891 OF 2014
IN
CRIMINAL WRIT PETITION NO.720 OF 2014
Shri Sachin Ashok Patil,
Age-34 years, Occu:Service,
Presently posted and residing at "Thane",
Dist-Thane, Maharashtra.
...APPLICANT
VERSUS
1) Mr. Abhimanyu s/o Ravan Ingale, Age-43 years, Occu:Agriculturalist, Resident of-Kangara, Tq. & Dist-Osmanabad,2) The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai-32 (Mah.),3) The Commissioner of Police, Aurangabad Division, Aurangabad (Mah.),cwp720.14
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4) The Inspector General of Police, Aurangabad Division, Aurangabad (Mah.),5) The Inspector General of Police, Nanded Division, Nanded (Mah.),6) The Superintendent of Police, Osmanabad, Dist-Osmanabad (Mah.),7) The Police Inspector, Police Station, Bembli, Osmanabad (Mah.),8) The Collector, Osmanabad, Dist-Osmanabad (Mah.),9) Central Bureau of Investigation, Through its Joint Director, Zone-1, C.B.I., Tanna House, Nathalal ParekhMarg, Colaba, Mumbai-39 (Mah.)....RESPONDENTS
...
Shri Shirish Gupte, Senior Counsel with
Shri A.D. Ostwal Advocate for Applicant.
Shri R.S. Deshmukh Advocate h/f. Shri V.V.
Ingale Advocate for Respondent No.1.
Shri S.G. Karlekar, A.P.P. for Respondent
Nos. 2 to 8.
...
CORAM: S.S. SHINDE AND
A.I.S. CHEEMA, JJ.
DATE OF RESERVING JUDGMENT : 11TH DECEMBER,2014.
DATE OF PRONOUNCING JUDGMENT: 15TH JANUARY, 2015.
cwp720.14
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JUDGMENT [PER A.I.S. CHEEMA, J.] :
1.This Writ Petition has been filed by the
Petitioner, resident of village Kangara, Tq. &
Dist-Osmanabad for writ of mandamus or any other
order of like nature to Respondent No.6 - Police
Inspector, Police Station, Bembli to register
F.I.R. on the information given by the Petitioner
on 21st June, 2014. Prayer is that the
investigation should be conducted by C.B.I. in the
F.I.R. to be registered relating to incident dated
26th May, 2014. Further prayer is that the
Respondents should pay compensation to the
Petitioner and other villagers of Kangara for
illegal arrest, unlawful confinement and detention
by Respondent No.5 - Superintendent of Police,
Osmanabad and Respondent No.6 - Police Inspector,
Police Station, Bembli.
2.According to the Petitioner, Women's Self
Help Group had made grievances against illegal
cwp720.14
5
sale of liquor in the village Kangara. Police
Patil of the village also, on 24th May 2014,
informed the Police Station that some villagers
are involved in illegal sale of liquor in the
village and there is social imbalance and
likelihood of breach of peace and harmony. On 26th
May 2014, Women of the Self Help Group had gone to
the Police Station, Bembli. Police asked them to
seize the liquor and collect evidence. The ladies
caught hold of one Shesherao Limbaji Rathod
involved in selling of illegal liquor with a box
of country liquor bottles and Plastic Can
containing liquor. The Police were called to the
village. Three Police Officials, (1) Head
Constable Shridhar Pawar, (2) Police Constable
Bhosle and (3) driver Police Constable Shinde from
the Police Station, Bembli reached the spot on
26th May 2014 at about 8.30 p.m. These Police
Officials, instead of taking action against
Shesherao Rathod, threw the liquor from plastic
can by kick and asked Shesherao Rathod to run
cwp720.14
6
away. Sheshrao ran away with the country liquor
bottles. Because of this, ladies of the village
Kangara questioned the conduct of the Police. In
the process, Mangalsutra of one lady, namely
Mahadevi Gangadhar Malge was snatched. The ladies
were assaulted with fists and kicks. Due to
illegal conduct of the Police, there was exchange
of words between the villagers and Police
Personnel. Shri R.A. Bansode, A.P.I. attached to
the Police Station Bembli, received information
about the unrest in the village and came to the
village. He also faced anger of the villagers.
Instead of taking action against the said Police,
A.P.I. Bansode informed the Superintendent of
Police,Osmanabad-SachinPatil.The
Superintendent of Police came along with Deputy
Superintendent of Police Smt. Vaishali Kadukar to
the village at about 11.00 - 11.30 p.m. along with
150 to 200 Police personnels of Anti- riot squad.
Without making inquiries, the Superintendent of
Police directed that the villagers should be
cwp720.14
7
arrested. The Police became uncontrollable and
broke open doors of the houses and started
assaulting villagers. Villagers were beaten and 46
men and 8 women were arrested and taken to the
Police Station. They were detained till 10.00 p.m.
of 27th May, 2014 without being given medical aid.
At about 10.00 p.m. on 27th May 2014, Police sent
7 villagers to the hospital. One Satish Gurav
sustained fracture to his left leg.
.There was public cry and media gave wide
publicity to the incident and Home Ministry
appointed Inspector General of Police, Nanded to
inquire and submit report. Inspector General of
Police, Nanded submitted report and only
departmental action came to be taken against the
three Police personnels and A.P.I. Bansode and
they were suspended. Crime was not registered
against the Police or the Superintendent of Police
and the Deputy Superintendent of Police. The
Petitioner tried to file report at the Police
cwp720.14
8
Station but the same was not received. Petitioner
sent report dated 21st June, 2014 to P.S.I. Police
Station Bembli, but offence was not registered.
Hence the present Petition.
3.The other version of the alleged
incidents is the version of the Police. Record
shows that Police Station, Bembli, on 27th May 2014
registered Crime No.43 of 2014 under various
sections of Indian Penal Code and Prevention of
Damage to Public Property Act. The complainant was
Head Constable Shridhar Pawar who had gone for the
raid at the village on 26th May 2014. The offence
was registered at 5.00 a.m. As per the version of
the Police Head Constable, on 26th May 2014 he was
told by Police Inspector Bansode that Police Patil
of village Kangara had informed on phone that
Shesherao Limbaji Rathod was selling illegal
liquor at the village and so raid should be
carried out. The complainant, along with Police
Constable Bhosle and driver Police Constable
cwp720.14
9
Shinde and two Panchas, in Jeep No.MH-25 C-6420
proceeded to the village after taking station
diary entry at 21.20 hours. The raid was carried
out at the house of Shesherao but he had already
run away. From the house, under Panchnama,
articles were seized and with Police staff, this
Police Head Constable came near Hanuman Temple
Square. Sheshrao who had run away, along with his
wife Shobha Rathod, one Meenakshi Rathod and
sister Chaya Chavan and other 2-3 persons came
there and forcibly tried to spill the liquor
seized, to destroy the evidence. Some people
gathered and started saying as to how Police will
file case and other people gathered started saying
as to how the liquor was allowed to be spilled. So
saying, the people started rushing against the
persons of Police and the Police were obstructed.
The Police were beaten and injured. One Datta
Hariba Landge, Dnyaneshwar Ingale, Uttareshwar
Ingale, Shadar Dalave, Rahul Dharav, Laxman Gujare
and other 100-125 peoples started pelting stones
cwp720.14
10
and the unlawful assembly damaged the Government
Jeep. Glasses, doors, tyres of the vehicle were
damaged to the extent of Rs.60,000/- to
Rs.70,000/-. The key of the vehicle was taken
away by these persons. This complainant Shridhar
Pawar and Constable Shinde were assaulted by one
Datta Landge, Laxman Gujare and other 2-3 persons
by sticks, chain, stone and were grievously
injured. Complainant Shridhar Pawar had bleeding
injury on his head. Police Constable Shinde
informed about the incident which was going on, on
wireless to the Police Station as well as control
room. Because of this higher Police officials came
to the spot but the mob kept throwing stones in
which Head Constable Rokade was injured to the
head. The F.I.R. as above was given by complainant
while being admitted in the hospital.
4.The above are the two versions of the
opposite sides. The Petitioner regarding the
incident dated 26th May 2014 claims to have sent
cwp720.14
11
information dated 21st June 2014 (Exhibit E) to
the Police Sub Inspector, Police Station, Bembli,
Dist-Osmanabad, claiming that on 26th May 2014 he
was at his home and had gone to sleep, when at
about 1.00 a.m. There were bangs on the door and
he thought that there were thieves and so without
opening the door, he and his wife kept hiding in
the bed room. However, the Police were there and
they broke open the door and entering in the
house, the Police personnel took out the
Petitioner from his house. Outside there was
Superintendent of Police Sachin Patil, who,
without asking anything, gave 2-3 blows of stick
on the leg of the Petitioner. The Deputy
Superintendent of Police Smt. Vaishali Kadukar
also gave him kick blow. The other Police
officials gave stick blows on the whole body of
the Petitioner i.e. below the hip. He was given
40-50 blows by sticks and put in a van along with
30-40 people and taken to Police Station. He was
detained till 10.00 p.m. of 27th May 2014.
cwp720.14
12
.According to the Petitioner, the above
should have been registered as his F.I.R. The
Petitioner is trying to support the above
information dated 21st June 2014 with medical
certificate dated 28th May 2014 mentioning that he
had swelling over left dorsal and contusion over
right and left buttock 10 X 10 c.m.s. There was
contusion on left leg post aspect of 8 X 2 c.m.s.
5.Respondent No.1 through Secretary, Home
Department, Vineet Agrawal filed affidavit dated
18th July 2014 stating that the Government has
taken complaint against the Police officials
seriously and will bring the inquiry and
investigation to its logical conclusion. The
affidavit says that on 28th May 2014 one A.P.I. and
three constables have been placed under
suspension. The documents attached show that
A.P.I. Bansode and the Head Constable Pawar,
Police Constable Bhosle and Police Constable
cwp720.14
13
Shinde had been suspended. The affidavit mentions
that Special Inspector General vide letter dated
31st May 2014 has transferred the investigation of
the case to the C.I.D. Crime.
.Subsequently,theSecretary,Home
Department has filed another affidavit dated 10th
September 2014 in view of the rejoinder filed by
the Petitioner, clarifying that it was true that
suspension of A.P.I. Bansode was revoked on 5th
July 2014 by the Superintendent of Police,
Osmanabad which fact was not informed to this
deponent. He explained that this happened as
information had not reached him while filing
earlier affidavit. He further mentioned in the
affidavit that the Inspector General of Police,
Nanded had completed the inquiry and submitted
report and the comments of the Director General of
Police had been called.
The Inspector General of Police, Nanded -
6.
cwp720.14
14
Respondent No.4 filed affidavit claiming that the
Petition was exaggerated and had imaginary
grounds. He claims that he had visited the village
on 28th May 2014 and made inquiries. The affidavit
refers to the grievances made by the villagers
including grievance that the Deputy Superintendent
of Police Smt. Vaishali Kadukar and Superintendent
of Police, when they had come at the spot, they
had beaten the innocent villagers. This Inspector
General of Police has mentioned in the affidavit
that he has looked into the allegations and
conducted preliminary inquiry. He found the A.P.I.
Bansode and the three Police officials who had
gone for raid, to be prima facie guilty and has
sent report to the Director General of Police
recommending stern action against these Police
officials and that they had been suspended. He has
already submitted report dated 30th July 2014 and
that no further inquiry was necessary and that the
Writ Petition was liable to be dismissed.
cwp720.14
15
7.There is yet another affidavit of Suresh
Khade, Deputy Secretary, Home Department, stating
that Additional Director General of Police, C.I.D.
has been directed to include in the inquiry all
the complaints relating to incident in which
offence bearing Crime No.43 of 2014 has been
registered. It is mentioned that Government of
Maharashtra has issued letter dated 2nd December
2014, in which it has been clarified that inquiry
in Crime No.43 of 2014 shall also include the
allegations against the then Superintendent of
Police, Osmanabad.
.Thus, (although as per Police Station
Bembli “Samajpatra” dated 1st July 2014 (infra) the
complaint is filed) according to this deponent,
ambit of inquiry being made by C.I.D., includes
the complaint made against the Superintendent of
Police. The information dated 21st June 2014
claimed by the Petitioner is covered, as it is a
grievance against the Superintendent of Police,
cwp720.14
16
Osmanabad relating to the incident dated 26th May
2014.
8.The then Superintendent of Police -
Sachin Patil has filed Criminal Application
No.4891 of 2014 for intervention. In the course
of hearing of this Writ Petition, on 15th September
2014, Mr. S.C. Gupte, Senior Counsel for the
intervenor has mentioned that he will file
affidavit in continuation of the Application for
intervention along with the documents relating to
the subject matter involved in the Petition. The
statement was taken on record. Subsequently the
Superintendent of Police has filed affidavit dated
6th October, 2014.
9.The affidavit of the then Superintendent
of Police in substance shows :-
(A)Reference has been made to the case law
in order to claim that his intervention
Application should be allowed and that he has
cwp720.14
17
a right to be heard. Referring to the
incident, this deponent has claimed (from Para
18) that at the relevant time in village
Kangara there was law and order situation and
anti-social elements had taken law in their
hands and the situation was deteriorating. The
control room was informed about the same and
this reflects in the station diary. According
to him, initially he had directed the Deputy
Superintendent of Police to proceed to village
which can be seen from Exhibit R-1, the
relevant station diary entry, to control law
and order situation. Deponent received
wireless message that the law and order
situation was deteriorating and two constables
were held captive by the violent mob and
stones were being pelted at police vehicles
and the mob was armed with deadly weapons.
Three constables had received serious injuries
and there was threat and danger to their life.
Deponent refers to the photographs filed at
Exhibit R-2 in support of claim that the
police constables had been seriously injured
physically.
(B)Deponent has made reference to Section
129 of Cr.P.C. relating to unlawful assemblies
and provision that police officer not below
the rank of sub inspector may command any
unlawful assembly likely to cause disturbance
of public peace to disburse and if on being so
commanded, the assembly does not disburse, the
police may proceed to disburse the assembly by
force and if necessary arrest and confine
persons who form part of the said assembly or
they may be punished according to law. Relying
on this Section and referring to Section 130
and 131 of Cr.P.C., it is claimed that under
Section 132(2)(a) the police officer acting
under Section 129 of Cr.P.C. is protected when
he has acted in good faith and no such officer
cwp720.14
18
shall be deemed to have committed an offence.
Reliance is placed on Section 149 to claim
that police has power to prevent cognizable
offence and Section 151 of Cr.P.C. also
permits arrest of person to prevent cognizable
offence. According to deponent, the writ
Petitioner was served with notice under
Section 149 of Cr.P.C. (Exhibit R-3).
According to him, the Petitioner has not
approached the Court with clean hands. The
complaint dated 21st June 2014 received by
police station on 25th June 2014 / 26th June
2014 claims that the Petitioner was not aware
as to what happened in the village on 26th May
2014 but the Petitioner has claimed personal
knowledge about incidents as can be seen from
Paragraphs 4 to 10 of the Petition. Petitioner
has not disclosed source of knowledge and
information regarding the incidents dated 26th
May 2014. The Petitioner has claimed knowledge
about the incident as from his own knowledge
and belief and still claimed that he was not
aware about the incident till 1.00 a.m. of
27th May 2014, which is not correct.
(C) The deponent in para-wise reply, has
claimed that there was information received
from Mahila Bachat Gat and Police Patil at
Kangara with Bembli Police Station with
reference to sale of illicit liquor on 26th
May 2014 and A.P.I. Bansode had sent raiding
party to do the needful. According to him, the
information was received at 9.15 p.m. and the
station diary entry shows that the raiding
party went at 9.20 p.m. The raiding party
consisted of police head constable Shridhar
Pawar, police constable Bhosle and driver
police constable Shinde and two Panchas. They
had gone by police Jeep No. MH-25 C-6420.
According to deponent, the raiding party
seized illicit liquor from the house of
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19
Sheshrao who had run away. When the raiding
party was returning and reached Hanuman
Square, Sheshrao with his family members
reached there and poured the seized liquor on
ground from the hands of police. At that time
women of Mahila Bachat Gat asked police as to
how they helped Sheshrao and his family
members to pour liquor on the ground and
started assaulting police persons. Deponent
claims that police never helped Sheshrao to
run away from spot. Rather, the raid had been
carried out against him. According to
deponent, mob of villagers got angry and they
pelted stones and ransacked police jeep and
also beat the police party. The police party
was not allowed to leave the village and
steering of the jeep was locked and keys
removed by people. When women of Kangara
village were questioning the police, one
Mahadevi Gangadhar Malge was there in the
crowd. Her Mangalsutra was snatched by the
persons who were with Sheshrao and in this
regard F.I.R. at CR. No.48 of 2014 was filed.
According to deponent, the Petitioner has not
approached the Court with clean hands.
(D)Deponent claims that A.P.I. Bansode
received information from police constable
Shinde on wireless regarding assault on
police. A.P.I. Bansode immediately went to the
village and was informed that people were
assaulting the police and two police
officials, A.S.I. Katkar and Surwase were
missing and some police personnels had been
grievously and seriously injured. Police Head
Constable Rokde sustained serious head injury
and was assaulted with stick, bamboo and
stones on his legs. A.P.I. Bansode found the
situation to be critical and informed control
room. Consequently Deputy Superintendent of
Police Smt. Vaishali Kadukar with police staff
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of about 25 personnel, went to help Bansode.
With the help of staff available, it was
announced to the people of unlawful assembly
to disburse peacefully but the mob kept on
taking law in their hands. The police tried to
search for the missing police persons and to
control the mob. Deputy Superintendent of
Police Smt. Vaishali Kadukar informed deponent
that more force was required. Deponent sent
Police Inspector Gundile of local crime branch
with staff and later on the deponent himself
went with police officials. Deponent reached
at about 12.00 a.m. in the night. People were
asked to leave the spot. Mob was asked to
disburse. Police continued with the search of
police personnels. Deponent acted as per rule
of law to save damage to life and property.
There was spontaneous pelting of stones and
the people were causing law and order problem
and obstruction. 46 male and 5 female were
taken into custody. In the extensive search,
the missing police staff was found. Their
clothes had been torn and they were in shock.
In the incident one Satish Hanumantrao Gurav
who was injured, was sent for medical
treatment on 27th May 2014. From the persons
caught, three were found involved in
commission of offence and they were remanded
while others were released under Section
149(1) of Cr.P.C. Petitioner might have
received injuries in the scuffle with the
villagers or while running away at the time of
incident.
(E)The affidavit refers to case law to claim
that as alternative efficacious remedy under
Section 156(3) and Section 202 of Cr.P.C. is
available, remedy under Article 226 of the
Constitution of India should not be resorted
to.
cwp720.14
21
(F)Regarding the complaint dated 21st June
2014 sought to be converted into F.I.R. by the
Petitioner, the deponent claims that procedure
as laid down in the matter of Lalita Kumari
vs. State of U.P., reported in 2014 Criminal
Law Journal, Page 470 has been followed.
A.P.I. Kokane made entry of the said
application and Police Head Constable R.N.
Mulani conducted the preliminary inquiry. The
Petitioner was called time and again to give
statement but he did not. The Petitioner was
issued letter /Samajpatra dated 1st July 2014
informing that regarding the incident dated
26th May 2014 and 27th May 2014 F.I.R. at Cr.
No.43 of 2014 has been registered and that the
crime is being investigated by CID. In the
Samajpatra, the Petitioner has been informed
that Home Minister has directed police not to
interfere with the investigation and thus the
incident is being investigated by CID and so
the letter given by the Petitioner has been
filed.
10.The Petitioner has filed affidavit in
reply to the affidavit of the then Superintendent
of Police denying the claims made by the then
Superintendent of Police. It is claimed that the
Petitioner and other 45 villagers have given
statement to the Inspector General of Police,
Nanded. The affidavit claims that in the peculiar
factsandcircumstancesasmentioned,
investigation through CBI is necessary. Petitioner
cwp720.14
22
had claimed copies of report and statement given
by villagers from Inspector General of Police but
did not receive the same. Learned counsel for the
Petitioner argued that by letter dated 2nd December
2014 Petitioner has been informed that the inquiry
is going on and hence the copies cannot be
supplied.
11.Learned counsel for the Petitioner relied
on the case of State of West Bengal and others vs.
Committee for Protection of Democratic Rights,
West Bengal and others, reported in 2010(3) S.C.C.
571 to argue that in similar situation the Hon'ble
Supreme Court had found that the High Courts are
authorized under Article 226 of the Constitution
of India to issue directions for investigation by
CBI.
.In the cited ruling, eleven persons had
died and even after more than three months there
was no serious attempt to get the victims
cwp720.14
23
identified. It was noticed that the police
administration was under the influence of ruling
party which was trying to hide the incident to
save its own image. As such it was held that the
investigation could be handed over to CBI.
12.Learned counsel for the Petitioner then
relied on the case of State of Maharashtra vs.
Farook Mohammad Kasim Mapkar and others, reported
in 2010(8) S.C.C. Page 582. This matter related to
communal riots which took place after Babri
Masjid demolition. The case related to incident
dated 10th January 1993 at Mumbai. There was
rioting and arson near Hari Masjid, Sewree, Mumbai
and when the mob turned violent, police had
resorted to firing and police recorded F.I.R. at
Cr. No.17 of 1993 in which Respondent No.1 (as was
before the Hon'ble Supreme Court) was named. The
Respondent No.1 subsequently on 5th August 2006
filed complaint against Respondent No.2 and other
police officers which was recorded as Toorant
cwp720.14
24
Application. Respondent No.1 wanted the police to
register F.I.R. and when this was not done he
filed Criminal Writ Petition No.1437 of 2007 in
which the impugned order directing CBI Inquiry was
passed. When the matter came up before Hon'ble
Supreme Court, inter-alia the Supreme Court
observed as under:
“14..........Further, in the case on hand, the
Respondent No.1 has asserted at many places
which were supported by the Commissions
report, more particularly, the information
that the State Police did not examine the
injured witnesses who were available at the
spot and suffered a lot. In view of the
demolition of Babri Masjid on 06.12.1992, and
riots in various places all over India
including Mumbai on 10.01.1993, specific
assertion by the Respondent No.1 who is an
affected person coupled with the findings of
Srikrishna Commission accepted by the State,
we are of the view that it is an extraordinary
case, and we hold that the Respondent No.1
herein is fully justified in approaching the
High Court seeking extraordinary jurisdiction
fordirectionsforentrustingthe
investigation to independent and special
agency like CBI. Accordingly, we reject the
said contention also.”
13.Learned counsel for Petitioner then
cwp720.14
25
relied on the case of Rohtash Kumar vs. State of
Haryana, reported in (2013) 14 Supreme Court Cases
290, which related to matters where there is death
in police encounter. In Para 13, the Hon'ble
Supreme Court had observed that whenever complaint
is made against police making out a case of
culpable homicide, the F.I.R. must be registered.
It was observed that Section 154 of the Code
mandates that whenever complaint discloses
cognizable offence, F.I.R. must be registered.
.Learned counsel for the Petitioner
further relied on the case of Sandeep Rammilan
Shukla and others vs. State of Maharashtra and
others, reported in 2008(2) Bom.C.R.(Cri.) Page
799, where Full Bench of this Court, with
reference to Section 154 of Cr.P.C. culled out the
following principles as correct exposition of law:
“(a) The expression “shall” appearing in
Section 154 of the Code of Criminal Procedure
is mandatory. The section places an 'absolute
cwp720.14
26
duty' on the part of the 'officer in charge of
a Police Station' to record information and
place substance thereof in the prescribed
book, where the information supplied or
brought to his notice shows commission of a
cognizable offence.
(b) As the law does not specifically prohibit
conducting of a limited preliminary inquiry,
pre-registration of FIR in exceptional and
rare cases by the officer in charge of a
Police Station, he may penultimately thus
enter upon a preliminary inquiry in relation
to information supplied of commission of a
cognizable offence but only and only upon
making due entry in the Daily Diary/Station
Diary/Roznamachar instantaneously with reasons
as well as the need for adopting such a course
of action. Such inquiry should be completed
expeditiously and in any case not later than
two days. Thereafter, the FIR should be
recorded in the prescribed register and/or the
officer should take any other recourse
permissible to him strictly in accordance with
the provisions of the Code of Criminal
Procedure under which he is empowered to
investigate. Such cases can be illustrated by
giving an example i.e. when the information
received in regard to commission of a
cognizable offence would patently cause absurd
results or report of happening of events,
authenticity of which ex facie is extremely
doubtful.
(c) The law inescapably requires the Police
Officer to register the information (FIR)
received by him in relation to commission of a
cognizable offence. Under the Scheme of the
Code, no choice is vested in the Police
Officer between recording or not recording the
information received. The concerned officer
cwp720.14
27
would aptly take recourse to Clause (a) as a
normal rule while could adopt the course of
action as stated in Clause (b) above as an
exceptional and rare case.”
14.It has been vehemently argued by the
learned counsel for the Petitioner that looking to
the provisions as found in the Code of Criminal
Procedure and the above case law, when the
complainant sent complaint dated 21st June 2014,
the Police Station had no other option but to
register the same as F.I.R. As per Para 19 of the
Petition, the complaint Exhibit E was sent to the
Police Station as well as other authorities. As
per the learned counsel, this Exhibit E should
have been registered as F.I.R. and action should
have been taken against the Deputy Superintendent
of Police as well as then Superintendent of Police
and other police officials.
15.Against this, Mr. Shirish Gupte, learned
senior counsel pressing for allowing the
Intervention Application, referred to the
cwp720.14
28
affidavit filed by the then Superintendent of
Police in the Writ Petition, submitted that he was
relying on the grounds raised in the affidavit.
Learned senior counsel referred to the following
Rulings to submit that when there is available
alternative efficacious remedy in Code of Criminal
Procedure, Writ Petition to High Court could not
be filed. The Rulings relied on, are as under:
(I) Sakiri Vasu vs. State of Uttar Pradesh,
(2008) 2 S.C.C. 409,
(II) Aleque Padamsee vs. Union of Inda, (2007)
6 S.C.C. 171,
(III) Hari Singh vs. State of U.P., (2006) 5
S.C.C. 733,
(IV) Minu Kumari vs. State of Bihar, (2006) 4
S.C.C. 359,
(V) Gangadhar Janardhan Mhatre vs. State of
Maharashtra, (2004) 7 S.C.C. 768,
(VI) Panchabhai Potbhai Butani vs. State of
Maharashtra, 2010(1) Mah. L.J. 421,
(VII) Lalita Kumari vs. Government of Uttar
Pradesh and others, (2014) 2 S.C.C. 1,
(VIII) Smt Vijaya Vasant Nikam vs. The State
of Maharashtra, 2012 All M.R.(Cri.) 3885.
16.We have heard learned counsel for both
sides and have gone through the material placed on
record and the claims and counter claims made by
cwp720.14
29
both sides. The Petition itself prompts that in
the village concerned, there was unrest between
the villagers. Para 5 of the Petition itself shows
that Police Patil had informed the Police Station
about villagers involved in illegal sale of
liquor. It is mentioned that due to illegal sale
of liquor, there was social imbalance and
likelihood of breach of peace and harmony. Para 9
of the Petition with reference to the raid carried
out, shows the ladies of the village going ahead
to question the Police personnel and exchange of
words between villagers and Police personnel. Para
10 of the Petition shows that even when A.P.I.
went to the village, he allegedly “faced anger of
villagers”. For the acts of the raiding party, the
record shows that departmental action has been
initiated. The overall reading of the material
available shows that during the course of the
incident, on spot there were members of Mahila
Bachat Gat on one side and (as the F.I.R.
registered by Police shows) there were Sheshrao
cwp720.14
30
Rathod and others who triggered incident by
opposing the seizure of liquor. It appears that
there was a law and order problem in which higher
police officers had to intervene. The matter has
been handed over to CID and the local police has
been asked not to interfere.
17.The Judgment relied on in the matter of
State of West Bengal and others vs. Committee for
Protection of Democratic Rights, West Bengal and
others (cited supra), and Judgment in the matter
of State of Maharashtra vs. Farook Mohammad Kasim
Mapkar and others, (cited supra) relied on by the
learned counsel for the Petitioner shows grave
facts. The observations of the Hon'ble Supreme
Court extracted in the matter of State of
Maharashtra vs. Farook Mohammad Kasim Mapkar and
others, (supra) show that it was extra-ordinary
case and the Respondent No.1 therein was justified
in seeking CBI Inquiry. In the present matter,
looking to the above observations and having
cwp720.14
31
considered the claims and counter claims, we do
not find that there are any extra-ordinary facts.
Against the complaint filed by Petitioner, the
stand of the then Superintendent of Police relying
on Section 129 read with 132 of Cr.P.C. also needs
to be kept in view.
18.It is settled law that Section 154 of
Cr.P.C. mandates that when a complaint discloses
cognizable offence, the F.I.R. must be registered.
The Judgment in the matter of Sandeep Rammilan
Shukla and others vs. State of Maharashtra and
others (supra) relied on by the learned counsel
for the Petitioner, which has been referred above,
will now have to be read keeping in view
observations of the Hon'ble Supreme Court in the
matter of Lalita Kumari vs. Government of U.P. and
others, reported in 2014 Cri. L.J. Page 470
Dealing with Section 154 of Cr.P.C., the Hon'ble
Supreme Court gave following directions:
cwp720.14
32
“Conclusion/Directions:
111. 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 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
cwp720.14
33
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 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.”
19.Learnedcounselforthethen
Superintendent of Police has submitted that the
cwp720.14
34
police station concerned has taken necessary steps
keeping in view the guidelines. We have also
observed in Para 7 (supra) while dealing with the
affidavit of Deputy Secretary, Home, that the
inquiry of CID is expected to look into the
complaint dated 21st June 2014 asserted by the
Petitioner.
20.In the present matter, looking to the
rival claims of facts as well as law, it would be
appropriate to reproduce observations of the
Hon'ble Supreme Court in the matter of Sakiri
Vasu vs. State of Uttar Pradesh (supra). It was
observed in Para 24 to 28 as under:
“24. In view of the above mentioned legal
position, we are of the view that although
Section 156(3) is very briefly worded, there
is an implied power in the Magistrate under
Section 156(3) CrPC to order registration of a
criminal offence and/or to direct the officer
in charge of the police station concerned to
hold a proper investigation and take all such
necessary steps that may be necessary for
ensuring a proper investigation including
monitoring the same. “Even though these powers
cwp720.14
35
have not been expressly mentioned in Section
156(3) CrPC, we are of the opinion that they
are implied in the above provision.
25. We have elaborated on the above matter
because we often find that when someone has a
grievance that his FIR has not been registered
at the police station and/or a proper
investigation is not being done by the police,
he rushes to the High Court to file a writ
petition or a petition under Section 482 CrPC.
We are of the opinion that the High Court
should not encourage this practice and should
ordinarily refuse to interfere in such matters
and relegate the petitioner to his alternating
remedy, first under Section 154(3) and Section
36 CrPC before the police officers concerned,
and if that is of no avail, by approaching the
Magistrate concerned under Section 156(3).
26.If a person has a grievance that his FIR
has not been registered by the police station
his first remedy is to approach the
Superintendent of Police under Section 154(3)
CrPC or other police officer referred to in
Section 36 CrPC. If despite approaching the
Superintendent of Police or the officer
referred to in Section 36 his grievance still
persists, then he can approach a Magistrate
under Section 156(3) CrPC instead of rushing
to the High Court by way of a writ petition or
a petition under Section 482 CrPC. Moreover,
he has a further remedy of filing a criminal
complaint under Section 200 CrPC. Why then
should writ petitions or Section 482 Petitions
be entertained when there are so many
alternative remedies?
27.As we have already observed above,
the Magistrate has very wide powers to direct
registration of an FIR and to ensure a proper
cwp720.14
36
investigation and for this purpose he can
monitor the investigation to ensure that the
investigation is done properly (though he
cannot investigate himself). The High Court
should discourage the practice of filing a
writ petition or petition under Section 482
CrPC simply because a person has a grievance
that his FIR has not been registered by the
police, or after being registered, proper
investigation has not been done by the police.
For this grievance, the remedy lies under
Sections 36 and 154(3) before the police
officers concerned, and if that is of no
avail, under Section 156(3) CrPC before the
Magistrate or by filing a criminal complaint
under Section 200 CrPC and not by filing a
writ petition or a petition under Section 482
CrPC.
28.It is true that alternative remedy is not
an absolute bar to a writ petition, but it is
equally well settled that if there is an
alternative remedy the High Court should not
ordinarily interfere.”
21.We do not find that in the present matter
there are any extra ordinary circumstances which
require handing over the matter to CBI. When
information relating to the commission of a
cognizable offence is given to Officer in charge
of Police Station, he is duty bound to register
offence. If he fails Cr.P.C. provides remedies.
There are enough provisions available to the
cwp720.14
37
Petitioner as can be seen from the above
observations of the Hon'ble Supreme Court to
resort to if he has any grievances. When the
matter is handed over to CID and if the Petitioner
does not trust the Police, there is no reason why
he cannot file a private complaint under Chapter
XV of the Cr.P.C. which has an elaborate procedure
for examining on oath not merely the complainant
but also witnesses and the substance of which
examination is required to be reduced in writing
and also signed by the complainant as well as the
witnesses. If the complainant has the witnesses,
he can very well resort to Chapter XV of Cr.P.C.
to bring on record whatever material he wants and
on needful being done, process would be issued if
there are sufficient grounds for proceeding
further.
.Our observations in this Judgment on the
two rival versions are based on prima facie
examination of the material and shall not
cwp720.14
38
influence the investigation by CID or Courts
below, in case Petitioner resorts to other
remedies under provisions of Cr.P.C.
22.For reasons mentioned above, we decline
to invoke powers under Article 226 of the
Constitution of India and decline to give
directions to CBI. The Petitioner has ample
remedies available under the Code of Criminal
Procedure as discussed in foregoing paragraphs and
thus relief sought vide Prayer Clause (C) of the
Petition is also declined. The Writ Petition
stands rejected.
23.As the Writ Petition is disposed of, the
Criminal Application No.4891 of 2014 would not
survive and the same is disposed of, accordingly.
[A.I.S. CHEEMA, J.] [S.S. SHINDE, J.]
asb/JAN15
2 issues framed by the court
Did the allegations of police assault and unlawful detention warrant directions for a CBI investigation?
Should the court direct FIR registration under Article 226 despite available remedies under the Code of Criminal Procedure?
Colour shows how this judgement treated each authority
State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and othersDistinguished¶218
2010(3) S.C.C. 571 · Who else cites this
State of Maharashtra vs. Farook Mohammad Kasim Mapkar and othersDistinguished¶218
2010(8) S.C.C. Page 582 · Who else cites this
Rohtash Kumar vs. State of HaryanaReferred¶178
(2013) 14 Supreme Court Cases 290
Sandeep Rammilan Shukla and others vs. State of Maharashtra and othersExplained¶224
2008(2) Bom.C.R.(Cri.) Page 799 · Who else cites this
Sakiri Vasu vs. State of Uttar PradeshRelied on¶256
(2008) 2 S.C.C. 409 · Who else cites this
Aleque Padamsee vs. Union of IndaReferred¶199
(2007) 6 S.C.C. 171 · Who else cites this
Hari Singh vs. State of U.P.Referred¶200
(2006) 5 S.C.C. 733 · Who else cites this
Minu Kumari vs. State of BiharReferred¶201
(2006) 4 S.C.C. 359 · Who else cites this
Gangadhar Janardhan Mhatre vs. State of MaharashtraReferred¶202
(2004) 7 S.C.C. 768 · Who else cites this
Panchabhai Potbhai Butani vs. State of MaharashtraReferred¶203
2010(1) Mah. L.J. 421
Lalita Kumari vs. Government of U.P. and othersRelied on¶224
2014 Cri. L.J. Page 470 · Who else cites this
Smt Vijaya Vasant Nikam vs. The State of MaharashtraReferred¶205
2012 All M.R.(Cri.) 3885
4 provisions across 2 enactments
Abhimanyu s/o Ravan Ingale
The State of Maharashtra
The Superintendent of Police, Osmanabad
The Police Inspector, Police Station, Bembli
Central Bureau of Investigation
Sachin Ashok Patil
S.S. SHINDE
A.I.S. CHEEMA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court