Gurusharan Singh Chohan Alias Raja ... vs The State Of Maharashtra And Anr on 3 November, 2020

[Cites 24, Cited by 0]

Bombay High Court

Gurusharan Singh Chohan Alias Raja ... vs The State Of Maharashtra And Anr on 3 November, 2020

Equivalent citations: AIRONLINE 2020 BOM 2007

1. By this Petition under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1974 ('Cr.P.C.' for short), the petitioner is seeking directions to the Respondent No.1 i.e. Senior Inspector of Police, Amboli Police Station, Andheri (West), Mumbai to treat the written report of the Petitioner dated 30th April 2020 as FIR. The Petitioner has further 2/32 Cri Wpst 1829-20 .odt prayed for a direction that the investigation of the report dated 30th April 2020 be carried out by some Senior Ofcer of Police of the rank of Joint Commissioner of Police (Crimes) or as may be deem ft and proper by this Court.

2. The background facts leading to fling the Writ Petition are as under :-

It is alleged by the Petitioner that, on or about 20th October 2019, Imtiaz Hussain, Nasir Khan and Azam Khan approached the Petitioner at his ofce alongwith another unknown person on the pretext of pretending to procure fnance for the said unknown person. The Petitioner on examining the credentials of the said unknown person, found him not to be eligible and consequently refused to certify that he was eligible to avail the fnance and did not refer his candidature to avail the loan facility. According to the Petitioner the said Nasir Khan, Azam Kham alias Sameer, Santosh, Vitthal, Imtiaz Hussain Siddiqui alias Pappu and one Imran Sayyed are Police informers and are associated with Senior Inspector of Police Unit X and XI, DCB CID, Mumbai. The said Imran was in employment of the Petitioner, as an ofce Clerk for about eight months. He was also associated with these police informers and therefore he knew about the Petitioner's business and fnancial status.

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3. On or about 27th October 2019, the aforementioned persons came to the Petitioner's ofce and stated that Mr. Chimaji Adhav, the Respondent No.6 herein, has procured some evidence against the Petitioner in a case of cheating and forgery. They indicated that the Petitioner after being implicated in that case shall be arrested, detained for months and harassed. In order to settle the issue with respondent No.6, they said he will have to pay Rs.50 Lakhs to the Respondent No.6. The Petitioner denied that he had ever done any act of forgery or cheating and refused to make the payment of Rs.50 Lakhs. The Petitioner being a businessman and having a family to look after, could not sustain the pressure created by them, agreed and accepted to pay Rs.17 Lakhs in installment to save the Petitioner from arrest by Mr. Adhav i.e. Respondent No.6 herein. A part payment of Rs.5 Lakhs was made by him.

4. Thereafter, from time to time demands were made by these persons. On 28th December 2019 the Respondent No.6 confrmed of having received Rs.17 Lakhs and assured the Petitioner that nobody will trouble him in any manner whatsoever.

5. The Petitioner says that in the second week of January, there again was a demand for Rs.20 Lakhs from him. 4/32

Cri Wpst 1829-20 .odt Several messages were sent to the Petitioner threatening and terrorising him in the name of DCB CID Crime Branch and the respondent Nos.5, 6 and 7. The Petitioner refused to pay the amount of Rs.20 Lakhs demanded from him.

6. It is further the case of the Petitioner that on 25 th February 2020, he was picked up alongwith Mr. Imran Sayyed by the team of DCB CID Unit X from his ofce compound when he was parking his car. It is further alleged that the Petitioner was produced before the Senior Police Inspector, DCB CID Unit X i.e. Respondent No.7 when a demand of Rs.1 Crore was made. It is alleged that even the Respondent No.5 i.e. DCP made a demand. On petitioner's refusal to pay, the Respondent No.5 threatened to torture the Petitioner and abused him in most vulgar language. The Petitioner was dealt with fve lashes of leather belt on his palms. The Petitioner came to be arrested on 25 th February 2020 by the Respondent No.7 in DCB CID CR No.59 of 2020 for the alleged ofences of cheating and forgery. According to the petitioner there is no allegation or any role assigned to the Petitioner in the said FIR. The said FIR fnds the names of 3 persons but the petitioner is not named.

7. It is then alleged that on 26 th February 2020 the Respondent No.7 called the Petitioner's wife Mrs. Balheer 5/32 Cri Wpst 1829-20 .odt Chohan alias Ritu Chohan and demanded Rs.40 Lakhs from her in the presence of the Petitioner. It is alleged that the Petitioner's wife was threatened with serious consequences if she failed to pay the amount demanded. The Petitioner's wife refused to pay the amount.

8. It is the Petitioner's case that in the FIR fled against him in CR No.59 of 2020 there is no role attributed to him, but his name is purposely included in the format of the FIR on the front page as accused No.4 with malafde intention to harass the Petitioner and extract illegal amount of money from him. It is alleged that on 5th March 2020 while in the custody of police, the signatures of the Petitioner were obtained on the bottom of each of 240 blank pages, stating that the same would be used for the chargesheet.

9. The Petitioner was released on bail on 22 nd April 2020. The Petitioner by his representation dated 30 th April 2020 complained about extortion against Senior Police Ofcers to various authorities including the Hon'ble Chief Minister. The Petitioner has also emailed his complaint on the ofcial email ID of the Hon'ble Chief Minister.

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10. It is thus the Petitioner's case that despite serious allegations made by him which clearly discloses cognizable crime, the FIR was not registered against the police ofcers. On 7th May 2020 the Petitioner sent the substance of the information to the Deputy Commissioner of Police, Zone IX, i.e. respondent No.4, as required under Section 154(3) of Cr.P.C. and requested him to investigate the same. The Petitioner says that no action has been taken in this regard. The Petitioner, therefore, fled the present petition seeking directions to Respondent Nos.1 to 4 for registering the FIR against the Respondent Nos.5 to 7.

11. This petition was earlier heard on 15th June, 2020. Learned Public Prosecutor then submitted that the Joint Commissioner of Police (Crimes), Mumbai has instructed Additional Commissioner of Police (Crimes) to enquire into the matter and to take steps in accordance with law.

12. On 17th July 2020 this Court perused the report submitted by the Respondents. The relevant portion of the order passed by this Court on 17th July 2020 reads thus :-

"2. A Division Bench of this Court vide order dated 15.6.2020 directed the respondents-authorities to submit a report to this Court. On perusal of the report, it reveals that a detailed report is submitted to this Court referring to the material collected in the course of inquiry.

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Cri Wpst 1829-20 .odt In our opinion, it would be in the interest of the parties and in ftness of the things to direct the respondents authorities, namely respondent Nos.1 to 4 to fle afdavit in reply in this Court. The afdavit in reply be fled within four weeks. The petitioner, if desires, may fle a rejoinder afdavit to the afdavit in reply within two weeks.

3. The petitioner is at liberty to circulate the petitioner after six weeks on the scheduled date of hearing or restoration of normal functioning of the Court whichever is earlier. Needless to state that the parties to adhere to the time schedule for fling the reply and counter reply and exchange their replies well within time.

4. The registry to handover the report in a sealed packet to the learned APP by Monday i.e. 20th July, 2020."

13. The Petitioner aggrieved by the order dated 17 th July 2020 passed by this Court approached the Hon'ble Supreme Court by way of SLP. On 21st August 2020 Their Lordships disposed of the SLP by passing the following order :-

"Considering the fact that this SLP arises out of an interim order and that the main writ petition is still pending consideration, we request the High Court to dispose of the writ petition as early as possible.

With the aforesaid observations, the SLP is disposed of.

Pending applications, if any, shall stand disposed of."

SUBMISSIONS ON PETITIONER'S BEHALF

14. Shri Desai, learned Senior Advocate would submit that the complaint as fled by the Petitioner discloses a 8/32 Cri Wpst 1829-20 .odt cognizable ofence. Shri Desai invited our attention to the averments made in the petition. He would submit that the allegations levelled by the Petitioner against the Respondents are serious as they relate to extortion and demand of money by the Respondent police ofcials while the Petitioner was in custody. He would submit that the Petitioner is a businessman and only out of fear and to avoid harassment from the policemen, he parted with considerable sum of money prior to his arrest.

15. Learned Senior Advocate, from the complaint and from the averments made in the petition invited our attention to the specifc instances stated therein relating to extortion and the harassment faced by the petitioner. Learned Senior Advocate would submit that even after having parted with substantial sum of money fearing harassment, the Petitioner came to be arrested in a false case.

16. Learned Senior Advocate would submit that the Petitioner was tortured while in custody to fulfll the illegal demand made by the Respondents. He would submit that even the Petitioner's wife was not spared and apart from the flthy and abusive language used by the concerned Respondents against 9/32 Cri Wpst 1829-20 .odt her, she was even asked to sell her jewellery to make good the amount towards the unlawful demand. He pointed out that several calls were made by the concerned Respondents to the wife of the Petitioner calling upon her to comply with the demand further threatening her with serious consequences which the Petitioner would have to face in custody.

17. Learned Senior Advocate invited our attention to the allegations about the harassment which the Petitioner faced while in custody during the period from 25 th February 2020 till 22nd April 2020. Learned Senior Advocate would submit that immediately upon his release on bail, he fled a complaint dated 30th April 2020. He would urge that the complaint was fled by the Petitioner cannot be said to be belated. According to him, it cannot be expected of the Petitioner to confront the Respondents while he was in their custody. Learned Senior Advocate would submit that the Petitioner has been bold enough to fle the complaint and making serious allegations against senior police ofcials is never easy. The petitioner, according to him, is aware of the risk of a prosecution in the event the complaint is found to be false.

18. He would urge that registration of FIR cannot be refused only because of allegations of extortion are made 10/32 Cri Wpst 1829-20 .odt against senior police ofcials while the Petitioner was in custody. He would urge that only requirement of registering FIR under Section 154 of Cr.P.C. is that the allegations made in the complaint should constitute a cognizable ofence. Learned Senior Advocate submitted that this Court having directed the learned Public Prosecutor to place status report in a sealed cover regarding the progress of enquiry/investigation made by Additional Commissioner of Police (Crimes), is entitled to a copy thereof to enable him to efectively deal with the report. In support of his submission learned Senior Advocate extensively relied on the decision of the Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and Others1.

19. Learned Senior Advocate would, therefore, urge that as the information in the complaint dated 30th April 2020 discloses commission of a cognizable ofence, the registration of FIR is mandatory under Section 154 of the Cr.P.C. and no preliminary enquiry is permissible in such a situation. It is reiterated by him that there is no abnormal delay or laches in fling the complaint dated 30 th April 2020 as he was in police custody during the period from 25th February 2020 till 22nd April 2020. Shri Desai would submit that as the so called preliminary enquiry conducted by the higher ofcials of the said police 1 2014 (2) SCC 1 11/32 Cri Wpst 1829-20 .odt department cannot be expected to be fair and impartial as every attempt would be made to protect their own. He submits that in these circumstances a preliminary enquiry by senior ofcials of the same department would only be an eye wash.

20. Learned Senior advocate would rely upon the decision in the case of The State of Telangana Vs. Habib Abdullah Jeelani and Others2 in support of his submission that at the stage of registration of FIR, other considerations such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. is not relevant.

21. Learned Senior Advocate would then rely upon some decisions of this Court as well as Calcutta High Court directing registration of FIR in the exercise of jurisdiction under Article 226 of the Constitution of India post the decision of the Apex Court in the case of Lalita Kumari, which are as under:

(1) Shri Tapas Paul and etc Vs. Biplab Kumar Chowdhury and Ors3.

(2) Surinder Mohan Arora Vs. Maharashtra State Co-

operative Bank Ltd. and Ors.4 It is brought to our notice that 2 (2017) 2 SCC 779 3 2015 CRI.L.J. 1188 4 2019 SCC OnLine Bom 1676 12/32 Cri Wpst 1829-20 .odt the SLP (Criminal No.766 of 2018) was fled against this decision. The Supreme Court did not interfere with the impugned order directing the registration of the FIR as a prima facie case is made out for carrying out proper investigation after registration of the FIR.

22. Learned Senior Advocate would vehemently urge that in the exercise of jurisdiction under Article 226 of the Constitution of India this Court can direct the police to register FIR under Section 154 of the Cr.P.C. if the information discloses commission of a cognizable ofence. He would submit that fling of a complaint before the Magistrate under Section 156(3) of the Cr.P.C. is not an efcacious remedy. He would submit that the alternate remedy is not a bar to approach this Court under Article 226 of the Constitution of India considering the manner in which the respondents have harassed the Petitioner and having regard to the serious nature of the allegations made. He would submit that the complaint contains narration of all incidents relating to the commission of the cognizable ofence which includes minute details with dates, telephone calls, etc., and hence this is a ft case for this Court to exercise its jurisdiction under Article 226 of the Constitution of India. 13/32

Cri Wpst 1829-20 .odt SUBMISSIONS OF LEARNED PUBLIC PROSECUTOR

23. Learned Public Prosecutor Shri Deepak Thakare on the other hand opposed the submissions made by Learned Senior Advocate. He would submit that the petitioner has an alternate efcacious remedy to approach the Magistrate. He would submit that this is not a ft case for exercising the jurisdiction under Article 226 of the Constitution of India considering the nature of ofence committed by the petitioner for which he was arrested. According to him, the petitioner had ample opportunity of raising grievance against the respondents since the demand for extortion was initially made sometime in October 2019. Even from the date of his arrest on 25 th February 2020 till he was released on bail on 22 nd April 2020, the petitioner has not made any complaint or approached the senior authorities. It is almost after eight days of his release on bail that the complaint is fled for the frst time on 30 th April 2020. Learned Public Prosecutor would submit that the delay in fling the complaint would disentitle the Petitioner from claiming relief from this Court under Article 226 of the Constitution of India.

24. He would submit that the complaint made against the Respondents is nothing but a malafde act on the part of the Petitioner only because an ofence registered against him is 14/32 Cri Wpst 1829-20 .odt being investigated by the Respondents. Shri Thakare would place reliance upon the decisions of the Apex Court in the case of Aleque Padamsee and Ors. Vs. Union of India and Ors. 5; Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and Others6 in Special Leave to Appeal (Cri) No(s).7022 of 2009; Sakiri Vasu Vs. State of Uttar Pradesh and Others 7 and the recent pronouncement of the Apex Court in the case of M. Subramaniam and another Vs. S. Janaki and another in Criminal Appeal No.102 of 2011 in support of his submission that if the Petitioner has a grievance that his FIR has not been registered by the police, 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) of the Cr.P.C.

CONSIDERATION

25. Heard learned Senior Advocate Shri Desai at length and the learned Public Prosecutor Shri Thakare. We perused the copy of the petition, the complaint dated 30th April 2020 and the relevant annexures. We also perused the afdavit in reply fled on behalf of the respondents. We have also gone through the report submitted in a sealed cover by the concerned 5 (2007) 6 SCC 171 6 (2016) 6 SCC 277 7 (2008) 2 SCC 409 15/32 Cri Wpst 1829-20 .odt Respondents in respect of preliminary enquiry conducted into the matter.

26. At the cost of repetition, in a nutshell the allegations of the Petitioner forming the basis of the complaint dated 30th April 2020 are thus :-

Since October 2019 the Petitioner was subjected to extortion by the police ofcials and their informers. The Petitioner had parted with substantial sum of money to the tune of Rs.17 Lakhs due to fear of harassment at the hands of the Respondents as they had threatened to register false cases against him. It is alleged by the Petitioner that even after fulflling the unlawful demand of Rs.17 Lakhs, further demands were made from them. The Petitioner came to be arrested on 25th February 2020 in a false crime registered against him. The Petitioner was released on bail on 22nd April 2020. The complaint is made on 30th April 2020.

27. This Court by an order dated 15 th June 2020 recorded the statement of learned Public Prosecutor that as the grievance of the Petitioner is against the police ofcials, the Joint Commissioner of Police (Crimes), Mumbai has instructed Additional Commissioner of Police (Crimes) to enquire into the 16/32 Cri Wpst 1829-20 .odt matter and to take steps in accordance with law. Accordingly, we have perused the report of the enquiry. The fndings of this preliminary enquiry do not support the allegations of the Petitioner.

28. Be that as it may, we deal with the objection of learned Public Prosecutor that the remedy of the petitioner is to approach the Magistrate under Section 156(3) of the Cr.P.C. instead of rushing to the High Court by way of a Writ Petition under Article 226 or under Section 482 of the Cr.P.C.

29. We frst refer to the decision of the Apex Court in the case of Sakiri Vasu (supra) relied by learned Public Prosecutor. For proper appreciation, the relevant paragraphs need to be quoted which would read thus:

"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to fle an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156(3) is fled before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made.

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Cri Wpst 1829-20 .odt The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

(emphasis supplied by us)

12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed: (SCC p.631, para 11) "11. The clear position therefore is that any judicial Magistrate, before taking cognizance of the ofence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any ofence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable ofence in a book kept by the ofcer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered, it is the duty of the ofcer in charge of the police station to register the FIR regarding the cognizable ofence disclosed by the complainant because that police ofcer could take further steps contemplated in Chapter XII of the Code only thereafter."

13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfed he can order a proper investigation and take other suitable steps and pass such order order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.

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14. Section 156 (3) states:

"156.(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned. The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the ofcer in charge of the Police Station.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate fnds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not afect the power of the investigating ofcer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the fnal report, vide State of Bihar vs. J.A.C. Saldanha (SCC : AIR para 19).

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfed that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefy worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

(emphasis supplied by us)

18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every 19/32 Cri Wpst 1829-20 .odt control the denial of which would render the grant itself inefective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution."

30. The decision in Sakiri Vasu is followed in the subsequent decision rendered by the Apex Court in Sudhir Bhaskarrao Tambe (supra). The observations of the Apex Court in the context of the High Court exercising its power under Article 226 in entertaining Writ Petition when an alternate remedy is available in the matter of registering FIR is important to note. The relevant paras read thus :

"2. This Court has held in Sakiri Vasu v. State of U.P., 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. If such an application under Section 156(3) Cr.P.C. is made and the Magistrate is, prima facie, satisfed, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating ofcer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been fooded with writ petitions praying for registration of the frst information report or praying for a proper investigation.

3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be fooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) 20/32 Cri Wpst 1829-20 .odt Cr.P.C. and if he does so, the Magistrate will ensure, if prima facie he is satisfed, registration of the frst information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged ofence under Section 156(3) Cr.P.C. and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating ofcer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfuenced by any observation in the impugned order of the High Court."

(emphasis supplied by us)

31. The Supreme Court in Lalita Kumari considered the question 'whether registration of an FIR is mandatory under Section 154 of the Cr.P.C., if information discloses commission of a cognizable ofence.

It would be material to note that in Lalita Kumari, the Writ Petition was fled under Article 32 of the Constitution of India by Lalita Kumari (minor) through her father for the issuance of a writ of Habeas Corpus or direction(s) of like nature against the respondents for the protection of his minor daughter who 21/32 Cri Wpst 1829-20 .odt had been kidnapped. The grievance in Lalita Kumari was that on 11.05.2008, a written report was submitted by the Petitioner before the ofcer in-charge of the police station concerned who did not take any action on the same. Thereafter, when the Superintendent of Police was moved, an FIR was registered. According to the Petitioner, even thereafter, steps were not taken either for apprehending the accused or for the recovery of the minor girl child.

32. The question that arose before the Constitution Bench in Lalita Kumari's case related to the interpretation of Section 154 of the Criminal Procedure Code and incidentally to consider Sections 156 and 157 also. The Apex Court upon consideration of the legislative intent of the use of the word "shall" in Section 154(1) held that registration of FIR is mandatory under Section 154 of the Code, if information discloses commission of a cognizable ofence and no preliminary enquiry is permissible in such a situation. Then the Apex Court discussed as to what type and in which cases preliminary enquiry should be conducted. The Apex Court observed that this would depend on the facts and circumstances of each case. Their Lordships say that one of the category of cases in which preliminary enquiry may be made are cases where there is 22/32 Cri Wpst 1829-20 .odt abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for the delay.

33. Their Lordships in Lalita Kumari in paragraph 120 concluded thus :

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

120.1 The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable ofence and no preliminary inquiry is permissible in such a situation.

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

120.3. If the inquiry discloses the commission of a cognizable ofence, 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 frst informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4 The police ofcer cannot avoid his duty of registering ofence if cognizable ofence is disclosed. Action must be taken against erring ofcers who do not register the FIR if information received by him discloses a cognizable ofence.

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Cri Wpst 1829-20 .odt 120.5 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 ofence.

120.6 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 ofences

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. 120.7. 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 refected in the General Diary entry.

120.8 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 ofences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously refected in the said diary and the 24/32 Cri Wpst 1829-20 .odt decision to conduct a preliminary inquiry must also be refected, as mentioned above. "

34. A careful analysis of the decision in Lalita Kumari's case would reveal that the decision of the Apex Court is an authority for the proposition that registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable ofence and no preliminary enquiry is permissible in such a situation.

35. In the context of an order for investigation made under section 156(3), it would be proftable to refer to the decision of the Apex Court in the case of Madhu Bala Vs. Suresh Kumar8 which also fnds reference in Lalita Kumari's case in Paragraph No.111. Paragraph 10 of Madhu Bala Vs. Suresh Kumar reads thus :-

"10. From the foregoing discussion it is evident that whenever a Magistrates directs an investigation on a "complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking the police to 'register a case' makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the Police to Investigate into a cognizable 'case' and the Rules framed under the Indian Police Act, 1861 it ( the police) is duty 8 (1997) 8 SCC 476 25/32 Cri Wpst 1829-20 .odt bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, does not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the Police would be 'to register a case at the police station treating the complaint as the First Information Report and investigate into the same."

36. Thus Their Lordships in Madhu Bala's case held that when an order for investigation under Section 156(3) of the Code is to be made, the proper direction to the Police would be 'to register a case at the police station treating the complaint as the FIR and investigate into the same.

37. Further, at the stage of registration of F.I.R., other considerations such as whether the information is falsely given, whether the information is genuine, whether the information is credible is not relevant. In our view, in the facts and circumstances of the present case the issuance of any directions for registration of F.I.R. in the exercise of extraordinary jurisdiction of this Court under Article 226 read with Section 482 of the Code when alternate remedy is available, would have to meet the tests of the principles enunciated by Their Lordships in Sakiri Vasu and Sudhir Bhaskarrao Tambe. We may hasten to add that the High Court is not denuded of its power of issuing appropriate directions to register FIR in the exercise of its writ 26/32 Cri Wpst 1829-20 .odt jurisdiction under Article 226 of the Constitution of India merely because an alternate remedy is available. However, the said extraordinary writ jurisdiction has to be exercised sparingly and only in appropriate cases.

38. The Apex Court in the case of Sakiri Vasu (supra) has already held that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Their Lordships further held that if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to fle an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156(3) is fled before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made, the Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

39. The legal position as can be culled out from the decisions of the Apex Court in the case of Sakiri Vasu and the 27/32 Cri Wpst 1829-20 .odt subsequent decision rendered by the Apex Court in the case of Sudhir Bhaskarrao Tambe is that though alternative remedy to invoke the writ jurisdiction under Article 226 or the inherent jurisdiction under section 482 of the Code in the matter of issuing directions for registration of FIR is not an absolute bar when the complaint/report discloses a cognizable ofence, but if there is an alternate efcacious remedy available then the High Court should not ordinarily interfere in the exercise of its extraordinary jurisdiction under Article 226 or the inherent jurisdiction under section 482 of the Code.

40. Let us now consider whether in facts of the present case interference of this Court is warranted in the exercise of power under Article 226 of the Constitution or under Section 482 of the Code. From the averments made in the petition it is seen that the petitioner received threats of extortion at the hands of Respondent police ofcials from October 2019. The Petitioner was arrested in DCB CID CR No.59 of 2020 case on 25 th February 2020. An afdavit in reply fled by the Respondents afrmed by Vinoy Kumar Choubey, Joint Commissioner of Police (L & O), Mumbai having additional charge of Joint Commissioner of Police (Crime), Mumbai records that no allegation of ill treatment of any sort by any police ofcer, was made by the Petitioner at any point of time, to the learned Magistrate. It is further stated in 28/32 Cri Wpst 1829-20 .odt the afdavit that investigation carried out revealed that the Petitioner is fraudulently using the name of Reserve Bank of India (RBI) and Ministry of Defence R & D Organization (DRDO), Gol to connive the public at large as well as various institutions. It is further stated that realizing the seriousness of the matter learned Metropolitan Magistrate 37th Court, Esplanade, Mumbai had taken cognizance and issued summons to the Petitioner and other accused after perusing the evidence collected in the course of investigation. The charge sheet has also been fled. The said criminal case bearing C.C. No.256/PW/2020 is pending trial. The afdavit further records that in so far as the allegation refusing registration of the crime of Extortion against Respondent Nos.5, 6 and 7 is concerned, the same is incorrect as enquiry was conducted by the Additional Commissioner of Police (Crime), Mumbai and that the allegations levelled were found to be prima facie false.

41. The averments made in the Petition would thus reveal that in respect of extortion alleged to have started in October 2019, a complaint was made for the frst time by the Petitioner only on 30th April 2020. The Petitioner came to be arrested on 25th February 2020 for the alleged ofence and he was released on bail on 22nd April 2020. It cannot be said that 29/32 Cri Wpst 1829-20 .odt the Petitioner did not have an opportunity of making a complaint during this period. The Petitioner is an accused in respect of an ofence registered by the CID. The allegations are serious as they pertain to fraudulently using the name of Reserve Bank of India (RBI) and Ministry of Defence R & D Organization (DRDO), Gol to connive the public at large as well as various institutions.

42. The decision relied upon by the learned Senior Advocate for the Petitioner in the case of Surinder Mohan Arora (supra) has no application whatsoever in the present facts. In the peculiar facts of Surinder Mohan Arora case, this Court after perusing the chargesheet fled under Section 88 of the Maharashtra Co-operative Societies Act and the report of the NABARD, for the reasons stated therein as also on the basis of the report of the enquiry/inspection was of the opinion that the material prima facie discloses the commission of cognizable ofences. Before this Court there was a report prima facie disclosing that the bank records were forged and the profts were wrongly shown by abusing the Income Recognition and Asset Clarifcation (IRAC) Norms. The report, further disclosed that the NPA Accounts were intentionally camoufaged. It is thus in the peculiar facts in 'Surinder Mohan Arora' this Court directed the registration of FIR.

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43. The next decision relied upon by the learned Senior Advocate Shri Desai is that of this Court in M/s. Fairwinds Asset Managers Ltd. vs. The State of Maharashtra and Anr. in Criminal Writ Petition No.779 of 2016 decided on 25.08.2016. This Court in Paragraph No.24, after perusing the report dated 11.04.2016, observed that the report itself supports the contention of the petitioner that the Investigating Agency ought to have registered the FIR and thereafter carried out the investigation. Further this Court was not satisfed with the explanation given by the respondent - Investigating Agency in not taking appropriate decision on the complaint lodged by the petitioner diligently and that decision was taken after near about 9 months of fling of the complaint and thus in those set of facts issued directions for registration of FIR. We are afraid that the decisions relied upon by the learned Senior Advocate including that of the Calcutta High Court in Tapas Paul (supra) are not of any assistance to the Petitioner as the same are rendered in the peculiar facts of those cases.

44. In the facts and circumstance of the present case, we are not inclined to grant the reliefs prayed for by the Petitioner in this Petition in view of the availability of the alternate efcacious remedy.

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45. Keeping all the contentions of the Petitioner on merits open, the Writ Petition is dismissed.

46. This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.

(M.S.KARNIK, J.)                                        (S.S.SHINDE, J.)


         Digitally
         signed by
Diksha   Diksha Rane
         Date:
Rane     2020.11.03
         15:24:40
         +0530




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