Criminal Writ Petition No.934 of 2008

12th September, 2008

Petitioner Counsel: Mr. UDAY WARUNJIKAR
Respondent Counsel: Mrs. S. D. SHINDE

Cases Cited:
Divine Retreat Centre Vs. State of Kerala, 2008 ALL MR (Cri) 1300 (S.C.)=(2008)3 SCC 542 [Para 7,9,10]
Som Mittal Vs. Government of Karnataka, (2008)3 SCC 753 [Para 7,8]
Som Mittal Vs. Government of Karnataka, 2008 ALL MR (Cri) 1151 (S.C.)=(2008)3 SCC 574 [Para 7,8]
Sakiri Vasu Vs. State of U.P., 2008 ALL SCR 1890 : (2008)2 SCC 409 [Para 11,14]

JUDGMENT

A. A. KUMBHAKONI, J.:- Rule. Rule made returnable forthwith. The learned APP waives service of the rule. By consent of parties, taken for final disposal at the admission stage itself, since very short issue is involved in the matter.

2. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a direction against the respondent State to register a crime at Shirur Police Station, taluka Shirur, District Pune, for the reasons disclosed in the writ petition. The grievance of the petitioners is that though the petitioners have made several representations to the concerned police station, the police have not taken any cognizance thereof and have not registered a case against the persons who, according to the petitioners, have committed a cognizable offence. The petitioners have relied upon the representation dated 22nd November, 2007, followed by other representations made by the petitioners from time to time with the police authorities till 3rd March, 2008, the copies of which are annexed to the petition.

3. The case of the petitioners, as tried to be made out, in short by these representations is as under :

The petitioners are the purchasers and owners of plot Nos.2 to 8, situate at village Shirur, Ramlinga Road, taluka Shirur, District Pune. One Mr. Sonyabapu Ravji Waluj is claiming that property situate towards northern side of these plot Nos.2 to 8 is owned by him and that he along with seven persons named in the representation, are preventing the holders of Plot Nos.2 to 8 in putting up construction thereon. These named persons are obstructing the occupation of the petitioners of these plots. Aforesaid Mr. Sonyabapu Ravji Waluj claims to have purchased the property, situate towards northern side of these plots of the petitioners on 23rd April, 2007 from following three persons :-

(1) Govinda Mukinda Nhavi,

(2) Lakshman Mukinda Nhavi,

(3) Vitthal Mukinda Nhavi.

In the representations aforesaid, the petitioners have stated that aforesaid two vendors Govinda and Lakshman have died long back on 27th October, 1939 and 30th December, 1947 respectively, and that in place of these two dead persons, some other persons were set up for bringing into existence the aforesaid sale-deeds dated 23rd April, 2007 by false personation (sic : impersonation). On all these and such other allegations, it is claimed by the petitioners that aforesaid Sonyabapu Ravji Waluj and 7 others have committed offences punishable under sections 419, 420, 464(2), 468 of the Indian Penal Code.

4. A careful consideration of the aforesaid case of the petitioners, apart from anything else demonstrates that the alleged sale-deed dated 23rd April, 2007 which according to the petitioners, had been obtained by false personation (sic : impersonation), does not at all pertain to or relate to the properties of the petitioners. The petitioners are claiming to be owners and occupiers of Plot Nos.2 to 8. Admittedly, the aforesaid sale-deed in issue does not pertain to these plots, but pertains to property situate towards northern side of these plots. Admittedly, the petitioners have no concern whatsoever with the property, which is the subject matter of the aforesaid sale-deed dated 23rd April, 2007, which according to the petitioners is obtained by false personation (sic : impersonation). Thus, it is clear that neither the document in issue relates to the property of the petitioners, nor the petitioners have any right, title, interest, (nor the petitioners claim any) in the property, which is subject matter of the aforesaid sale-deed in issue. Be that as it may.

5. Admittedly, the petitioners have already filed Regular Civil Suit No.303 of 2007 for protecting their occupation, user, etc. of the aforesaid plot Nos.2 to 8 in respect of which they claim their ownership and possession. In the affidavit-in-rejoinder filed by the petitioners dated 13th August, 2008 in this petition, it is also claimed by the petitioners that an ad-interim injunction is granted by the learned Civil Judge, Jr. Division on 2nd November, 2007 in favour of the petitioners in the suit.

6. Affidavit-in-reply has been filed on behalf of the respondent State of the Assistant Police Sub-Inspector, in charge of the police station which has jurisdiction over the property in issue. In this affidavit it is stated that on receipt of the application of the petitioners, appropriate inquiry has been conducted by the police. Copy of the document in issue has been obtained along with other records, pertaining to the properties in issue. Statements of original owners and also purchasers of the disputed properly have been recorded. Statements of the complainant and their family members as well as other witnesses are also recorded.

After considering the entire record, including the documents collected and the statements so recorded, the police authorities have come to the conclusion that the dispute between the parties is of civil nature. It is also to be noted that parties have already approached the Civil Court in as much as the petitioners have filed the aforesaid suit. Upon appropriate inquiry the police has come to the conclusion that there is no encroachment caused in the property of the petitioner and further that except plot No.2, in none of the plots construction is there and that therefore, police have concluded that there is no obstruction to any construction caused by anybody.

7. The learned counsel appearing on behalf of the petitioner has relied upon following three Supreme Court judgments in support of his claim that this Court is required to issue appropriate directions to the police to register the case-

a) Divine Retreat Centre Vs. State of Kerala and others, (2008)3 Supreme Court Cases 542 : [2008 ALL MR (Cri) 1300 (S.C.)].

b) Som Mittal Vs. Government of Karnataka, (2008)3 Supreme Court Cases 753.

c) Som Mittal Vs. Government of Karnataka, (2008)3 Supreme Court Cases 574 : [2008 ALL MR (Cri) 1151 (S.C.)].

8. The case of Som Mittal reported in (2008)3 Supreme Court Cases 753, was placed before the Bench of two Hon'ble Judges of the Supreme Court. One of the Hon'ble Judges partly concurred but partly did not agree with the other Hon'ble Judge. Consequently, the legal issues were referred to the larger Bench. The two Judge Bench decision is reported at page 753 and the larger Bench decision is reported on page 574[(2008)3 Supreme Court Cases] : [2008 ALL MR (Cri) 1151 (S.C.)]. Paragraph 36 from that portion of this referred judgment reads thus-

"While I agree with my learned Brother Hon'ble Sema, J. that the power under Section 482, Cr.P.C. is to be exercised sparingly. I cannot agree with my learned Brother that it should be exercised in "the rarest of rare cases".

The Hon'ble three Judges Bench on receiving the aforesaid reference have held in paragraph 9 as under -

"This extract is taken from Som Mittal Vs. Govt. of Karnataka, (2008)3 SCC 574, at page 580 : [2008 ALL MR (Cri) 1151 (S.C.)] :

9. When the words "rarest of rare cases" are used after the words "sparingly and with circumspection" while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words "sparingly and with circumspection". They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302, IPC, but to emphasise that the power under Section 482, Cr.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection. Judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasising a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation."

9. In the case of Divine Retreat Centre [2008 ALL MR (Cri) 1300 (S.C.)] (supra), the Supreme Court was dealing with the matter where the High Court directed the investigation of a crime to be taken away from one investigating officer and entrusted the same to a special investigation team, headed by Inspector General of Police. In this regard the Supreme Court has observed thus -

"This extract is taken from Divine Retreat Centre Vs. State of Kerala, (2008)3 SCC 542, at page 557 : [2008 ALL MR (Cri) 1300 (S.C.)] :

27. In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court under Section 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.

28. Chandrachud, J. (as His Lordship then was), in Kurukshetra University Vs. State of Haryana while considering the nature of jurisdiction conferred upon the High Court under Section 482 of the Code observed : (SCC p.451, para 2)

"2. ....It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases."

The Supreme Court thereafter in paragraphs 40 and 41 of the judgment in short is saying that the High Court in exercise of its inherent jurisdiction cannot change investigating officer in the mid-stream and appoint an agency of its choice on whatsoever basis, and that neither the accused nor the complainant or informant are entitled to have choice of investigating agency to investigate the crime, in which they are interested. In paragraph 42 it is observed thus-

"This extract is taken from Divine Retreat Centre Vs. State of Kerala, (2008)3 SCC 542, at page 561 :

42. Even in cases where no action is taken by the police on the information given to them, the informant's remedy lies under Sections 190, 200, Cr.P.C., but a writ petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre Vs. State of Maharashtra held : (SCC pp.774-75, para 13)

"13. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd.) Vs. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained." (Emphasis by us)

10. In our view the ratio of neither of aforesaid judgments will further the case of the petitioners. On the contrary as observed by the Supreme Court hereinabove in paragraph 42 in the case of Divine Retreat Centre [2008 ALL MR (Cri) 1300 (S.C.)] (supra), where no action is taken by the police on the information by the complainant/informant, the remedy of the informant lies under sections 190, 200, Cr.P.C. and that a writ petition in such a case is not to be entertained.

11. Though none of the parties relied on a judgment of the supreme Court, we must refer to it, which we do hereunder, whereby similar view is expressed by the Supreme Court in the case of Sakiri Vasu Vs. State of U.P. reported in (2008)2 SCC 409 : [2008 ALL SCR 1890]. It is observed therein as under-

"This extract is taken from Sakiri Vasu Vs. State of U.P., (2008)2 SCC 409, at page 415 : [2008 ALL SCR 1890] :

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, Cr.P.C.. 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, Cr.P.C. 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), Cr.P.C. or other police officer referred to in Section 36, Cr.P.C.. 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), Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482, Cr.P.C.. Moreover, he has a further remedy of filing a criminal complaint under Section 200, Cr.P.C.. 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 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, Cr.P.C. 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), Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200, Cr.P.C. and not by filing a writ petition or a petition under Section 482, Cr.P.C..

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."

12. In the light of the aforesaid legal aspect of the matter and the facts and circumstances of the case, discussed in detail hereinabove, we are of the view that firstly neither the property of the petitioners has anything to do with the document which according to the petitioners, is the document obtained by impersonation by certain persons against whom the petitioners want the police to take an action. Secondly, the petitioners are not at all concerned with the property which is the subject matter of the document, that according to the petitioner is obtained by false representation by these persons against whom the petitioners have grievance. Moreover, the police, upon making detailed inquiry into the representations made by the petitioners, and also by examining all the relevant documents and statements of all the concerned persons recorded by the police, have come to the conclusion that the dispute between the contesting parties is purely of civil nature, and therefore, it is not at all necessary for the police to take any action in this regard.

These aspects coupled with the admitted fact that the petitioners have filed Regular Civil Suit No.303 of 2007 and in this regard where even the petitioners have been so far successful in getting at least ad-interim injunction in their favour, demonstrates that the petitioners have miserably failed to make out any case, whatsoever, for us to issue any directions whatever to the police/respondent in this regard, much less the one sought for by the petitioners by this petition.

13. We must also note that the petitioners have not joined anybody against whom the petitioners have grievance, as parties to the present writ petition, of course, apart from the State of Maharashtra. The petition also therefore, suffers from non-joinder of necessary parties as in our view in the absence of any persons against whom the petitioners have grievance, we will not be justified in entertaining any claim, made by the petitioners by this petition.

14. Before passing the final order in this petition, which is inevitable from the aforesaid discussion, we will hasten to add that we have made various observations hereinabove only on the basis of the material placed before us in this writ petition, and therefore, these observations shall not be considered as conclusive findings of this Court as to the culpability of the alleged accused. It is also further clarified that it will be open for the petitioner to follow the course of action, contemplated by the aforesaid judgment of the Supreme Court delivered in the case of Sakiri Vasu [2008 ALL SCR 1890] (supra). In case if petitioners are so advised and they act upon such advice, it will be open for the concerned authority/Magistrate to take a decision in that regard, on the basis of the material that may be placed before the concerned authority/Magistrate at that time, by the petitioner and that in taking such a decision, the concerned authority/Magistrate shall not be influenced by the observations made by us hereinabove. With these clarifications, we proceed to pass the final order.

15. The petition is therefore, dismissed. Rule is discharged with no orders as to costs.

Petition dismissed.