High Court · 2025
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cwp-247.21+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.247 OF 20211) Ganesh Balasaheb Kale, Age-35 years, Occu:Agri., R/o-Aalvani, Tq-Parner, Dist-Ahmednagar,2) Dattatraya Baburao Pagire, Age-48 years, Occu:Agri., R/o-Jamgaon, Tq-Parner, Dist-Ahmednagar,3) Manisha Sahiba Rohokale, Age-45 years, Occu:Household, R/o-Aalvani, Tq-Parner, Dist-Ahmednagar,4) Shita Viswanath Salve, Age-48 years, Occu:Household, R/o-Aalvani, Tq-Parner, Dist-Ahmednagar,5) Bharti Shashikant Rohokale, Age-45 years, Occu:Household, R/o-Aalvani, Tq-Parner, Dist-Ahmednagar. ...PETITIONERS VERSUS 1) The State of Maharashtra, Through the Secretary, Home Department, Maharashtra State, Mumbai-32,2) The Superintendent of Police, Ahmednagar, Dist-Ahmednagar,
Legal Reasoning
cwp-247.21+23) The Police Station Officer, Parner Police Station, Tal-Parner, Dist-Ahmednagar. ...RESPONDENTS WITH CRIMINAL WRIT PETITION NO.248 OF 20211) Shahaji Krushnant Gaikwad, Age-56 years, Occu:Agri., R/o-Ambejalgaon, Tq-Karjat, Dist-Ahmednagar,2) Shriram Krushnant Gaikwad, Age-44 years, Occu:Agri., R/o-Ambejalgaon, Tq-Karjat, Dist-Ahmednagar,3) Bhausaheb Narayan Toradmal, Age-46 years, Occu:Agri., R/o-Baheruwadi, Tq-Karjat, Dist-Ahmednagar,4) Vaijanta Shashikant Sonmali, Age-44 years, Occu:Agri., R/o-Karjat, Tq-Karjat, Dist-Ahmednagar. ...PETITIONERS VERSUS 1) The State of Maharashtra, Through the Secretary, Home Department, Maharashtra State, Mumbai-32,2) The Superintendent of Police, Ahmednagar, Dist-Ahmednagar,3) The Police Station Officer, Karjat Police Station, Tal-Karjat, Dist-Ahmednagar. ...RESPONDENTS cwp-247.21+3 WITH CRIMINAL WRIT PETITION NO.47 OF 20211) Ajinath S/o Sopan Sole, Age-56 years, Occu:Agri., R/o-Arangaon, Tq-Jamkhed, Dist-Ahmednagar,2) Bapu Mahadeo Wagh, Age-45 years, Occu:Agri., R/o-Dhanora, Tq-Jamkhed, Dist-Ahmednagar,3) Tatyasaheb Khanderao Jadhav, Age-60 years, Occu:Agri., R/o-Dongaon, Tq-Jamkhed, Dist-Ahmednagar,4) Jayshree Jagannath Pawar, Age-45 years, Occu:Agri., R/o-Jamkhed, Tq-Jamkhed, Dist-Ahmednagar,5) Bhausaheb Vishwanath Gadade, Age-42 years, Occu:Agri., R/o-Bawarwadi, Tq-Jamkhed, Dist-Ahmednagar. ...PETITIONERS VERSUS 1) The State of Maharashtra, Through the Secretary, Home Department, Maharashtra State, Mumbai-32,2) The Superintendent of Police, Ahmednagar, Dist-Ahmednagar,3) The Police Station Officer, Jamkhed Police Station, Tal-Jamkhed, Dist-Ahmednagar. ...RESPONDENTS cwp-247.21+4 ... Mr. Rohit Nitin Patil Advocate for Petitioners in all Petitions. Ms. P.R. Bharaswadkar, A.P.P. for Respondents in all Petitions. ... CORAM: SMT. VIBHA KANKANWADI AND ROHIT W. JOSHI, JJ.DATE OF RESERVING ORDER : 17th JANUARY 2025DATE OF PRONOUNCING ORDER : 19th MARCH 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.All these three Petitions have been filed for directingrespondent Nos. 2 and 3 i.e. the Superintendent of Police,Ahmednagar and the Police Station Officer, Parner Police Station,Karjat Police Station and Jamkhed Police Station, respectively,to lodge First Information Report / criminal prosecution againstthe culprits as per report dated 12th December 2019 which wasfiled by the petitioners, respectively. 2.Heard learned Advocate Mr. Patil appearing for thepetitioners and learned APP Ms. Bharaswadkar appearing for therespondents. cwp-247.21+53.The petitioners contend that they are poor persons whowere living hand to mouth to earn their livelihood. However, toimprove their standard of living, they had invested their moneywith one Sunshine High Tech Infracon Limited. In fact the officebearers of the said company as well as the persons who wereresponsible to run the said company, had introduced the schemeto the petitioners and similarly situated thousands of people andhad promised for the handsome return. However, the petitionershave been duped by the said company, as a result of which theyhave lost their hard earned money. It was then learnt that thesaid company was involved in public issue of securities withoutcomplying with the provisions of the Companies Act, 1956 andother regulations under the Securities and Exchange Board ofIndia Act and regulations. The promoters and directors of thecompany as well as their agents had acted in connivance witheach other to dupe the petitioners and thousands of peopleunder the false promise to give high return for their investmentin the company. Ultimately the petitioners had approachedrespondent No.3 for lodging the First Information Report (forshort “the FIR”), however, no cognizance was taken. Even thereport dated 12th December 2019 has not been considered asFIR and therefore, present writ petitions have been filed. cwp-247.21+64.Learned Advocate for the petitioners has taken us throughthe documents on record. It is then shown as to how eachpetitioner has invested the money with the company but then itwas told to the petitioners that they will not get the amount thathas been invested by them and the basic rules and regulationshave not been followed by the company. The written complainthas not been considered. Even the petitioners might be havingan alternate remedy under Section 156(3) of the Code ofCriminal Procedure, but that will not be a bar for exercise of theconstitutional powers of this Court under Article 226 of theConstitution of India, as the public money is involved in thematter and large number of people have been duped. LearnedAdvocate for the petitioners relies on the decision in MaharashtraChess Association vs. Union of India and others, (2020) 13 SCC285, wherein it has been held that, the principle that the writjurisdiction of a High Court can be exercised when no alternativeremedy exists and mere existence of alternate forums where theaggrieved person may secure relief, does not create a legal baron a High Court to exercise its writ jurisdiction. cwp-247.21+75.Learned Advocate for the petitioners, further, relies onThree Judge Bench decision by the Hon’ble Supreme Court inState of Punjab and others vs. Rajesh Syal, (2002) 8 SCC 158,wherein it is held that different people have alleged to have beendefrauded by the company and therefore, each offence is adistinct one and cannot be regarded as constituting a singleseries of facts. On the similar line in K. Manoj Reddy vs.Commissioner of Police and others, 2007 DGLS (A.P.) 164, thelearned Single Judge of Hon’ble Andhra Pradesh High Court hasheld that in financial scams each and every written complaint ofa subscriber constitute an offence. Similar view was taken inNarinderjit Singh and Sahni and others vs. Union of India andothers, (2002) 2 SCC 210. Further the learned Advocate relieson the decision in National Anti Crime and Human RightsProtection of India vs. State of Punjab and others (Civil WritPetition No.2066 of 2018, dated 30th July 2024), wherein thelearned Single Judge of Hon’ble Punjab and Haryana High Courtat Chandigarh, has held that whenever there is a complaintdisclosing cognizable offence, then the FIR should be taken. Thelearned Advocate for the petitioners, therefore, prays fordirections to be given to respondent Nos. 2 and 3. cwp-247.21+86.Learned APP relies on the affidavit of Mr. Arun RadhakisanAvhad, the Police Inspector attached to Economic Offence Wing,Ahmednagar, stating that the petitioners are relying on thecommunication dated 19th July 2017 also, which is in factannexed along with the petition. In that connection, the FIR wasalready registered under Section 406 and 420 of the IndianPenal Code on the basis of report by one Rajendra KashinathPachpute, with Kotwali Police Station, Ahmednagar on 18thFebruary 2020. The said FIR was then transferred to EconomicOffice Wing, Ahmednagar. During the investigation then it wasrevealed that one more FIR has been registered vide CrimeNo.78 of 2019, under Section 420, 406 and 120-B of the IndianPenal Code in Kotwali Police Station, Baswada (Rajasthan). Theaccused persons were arrested and on the date of the affidavit,the accused persons were lodged in Baswada Central Jail,Rajasthan and therefore, in the crime registered with KotwaliPolice Station, Ahmednagar there is no arrest in the matter. Afterthe formalities are completed then the custody of the accusedpersons would be taken. The learned APP therefore, submits thatthe FIR is lodged and the act of those accused persons is underinvestigation. If we consider the said FIR, then it is in respect of cwp-247.21+9interest of many persons and the amount that has been duped ofsuch persons, runs into Rs.1,27,61,500/- as stated in the FIR. 7.Certainly the decision of Three Judge Bench of Hon’bleSupreme Court in State of Punjai and others vs. Rajesh Syal(supra) clarifies that every person who has been defrauded by acompany has a distinct cause of action and the complaint or FIRis maintainable by each one of them, therefore, every depositorwho felt that he has been defrauded, could have approached theconcerned police stations to lodge the FIR. If that complaintcould have disclosed the cognizable offence, then the concernedpolice station was duty bound to record the FIR of such person.If there is failure, then the procedure has been laid down inPriyanka Srivastava and another vs. State of UP and another,2015 (6) SCC 287. A written complaint will have to be given tothe concerned police inspector / police station officer and if noaction is taken, then the said fact will have to be reported to theDistrict Superintendent of Police or the copy of the complaint canbe sent to the District Superintendent of Police. Thereafter if thatauthority also refuses or does not take any action, then theconcerned person has right to approach under Section 156(3) ofthe Code of Criminal Procedure, to the jurisdictional Magistrate. cwp-247.21+108.Along with the Petition the written communication dated19th July 2017 has been filed, which appears to be a complaintby 17 persons including one Rajendra Kashinath Pachpute. Now,as per the affidavit of Police Inspector Mr. Arun Avhad, FIR cameto be registered as per the contention of said Rajendra Pachpute,on 18th February 2020. That means, it appears that the saidcomplaint dated 19th July 2017 has been taken cognizance of andthe investigation is pending. Thereafter there is anothercomplaint dated 9th July 2018, that is prior to the lodging of theFIR, to which also said Rajendra Pachpute and others were thesignatories. Further, similar written complaint was given on 4thOctober 2019. It appears further that some more persons i.e.present petitioners and others lodged report to the PoliceInspector, Parner Police Station, in November 2019. Then itappears that on 12th December 2019 the petitioners along withothers have addressed the complaint / representation/ report tothe District Superintendent of Police, Ahmednagar, copy of whichis annexed along with these petitions. Now, it is stated that onthe basis of this report, the offence ought to have beenregistered, however, since it is not registered, directions havebeen sought in these Writ Petitions. cwp-247.21+119.The decision in Maharashtra Chess Association vs. Union ofIndia and others (supra) is certainly binding on this Court.However, at the same time it is required to be seen that the factsin the said case were different. It was the matter on civil sideand taking into consideration the prayer, it was then observedthat the powers under Article 226 of the Constitution of Indiawith the High Court are not subject to strict legal principles. Itcan still be exercised where no adequate alternative remedy isthere and even if it is there, still that can be exercised. However,we are also bound by the decision in Sakiri Vasu vs. State ofUttar Pradesh and others, (2008) 2 SCC 409, wherein the legalposition was considered and it has been opined that althoughSection 156(3) of the Code of Criminal Procedure is very brieflyworded, there is an implied power in the Magistrate underSection 156(3) of the Code of Criminal Procedure to orderregistration of a criminal offence and / or to direct the officer incharge of the concerned police station to hold a properinvestigation and take all such necessary steps that may benecessary for ensuring a proper investigation includingmonitoring the same. In clear terms, it has been laid down inParagraph Nos. 26 and 27 as under:- cwp-247.21+12“ 26. If a person has a grievance that his FIR has not beenregistered by the police station his first remedy is toapproach 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 theofficer 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 writpetition or a petition under Section 482 Cr.P.C. Moreover hehas a further remedy of filing a criminal complaint underSection 200 Cr.P.C. Why then should writ petitions or Section482 petitions be entertained when there are so manyalternative remedies? 27. As we have already observed above, the Magistrate hasvery wide powers to direct registration of an FIR and toensure a proper investigation, and for this purpose he canmonitor the investigation to ensure that the investigation isdone properly (though he cannot investigate himself). TheHigh Court should discourage the practice of filing a writpetition or petition under Section 482 Cr.P.C. simply becausea person has a grievance that his FIR has not beenregistered by the police, or after being registered, properinvestigation has not been done by the police. For thisgrievance, the remedy lies under Sections 36 and 154(3)before the concerned police officers, and if that is of noavail, under Section 156(3) Cr.P.C. before the Magistrate orby filing a criminal complaint under Section 200 Cr.P.C. andnot by filing a writ petition or a petition under Section 482Cr.P.C. “10.Further, in Sakiri Vasu vs. State of Uttar Pradesh andothers, (supra) it was also noted that “it is true that alternative cwp-247.21+13remedy is not an absolute bar to a writ petition, but it is equallywell settled that if there is an alternative remedy the High Courtshould not ordinarily interfere.”11.Thereafter, the Hon’ble Supreme Court in SudhirBhaskarrao Tambe Vs. Hemant Yashwant Dhage and Others,[(2016) 6 SCC 277], after taking note of Sakiri Vasu Vs. State ofU.P. and Others (supra), has observed that:-“5.This Court has held in Sakiri Vasu v. State of U.P.(2008) 2 SCC 409, AIR 2008 SC 907, that if a person has agrievance that his FIR has not been registered by the police,or having been registered, proper investigation is not beingdone, then the remedy of the aggrieved person is not to goto the High Court Under Article 226 of the Constitution ofIndia, but to approach the Magistrate concerned UnderSection 156(3) Code of Criminal Procedure. ----------- Wehave said this in Sakiri Vasu case because what we havefound in this Country is that the High Courts have beenflooded with writ petitions praying for registration of the firstinformation report or praying for a proper investigation.6.We are of the opinion that if the High Courts entertainsuch writ petitions, then they will be flooded with such writpetitions and will not be able to do any other work exceptdealing with such writ petitions. Hence, we have held thatthe complainant must avail of his alternate remedy toapproach the concerned Magistrate Under Section 156(3),Code of Criminal Procedure, and if he does so, the Magistratewill ensure, if prima facie he is satisfied, registration of thefirst information report and also ensure a proper cwp-247.21+14investigation in the matter, and he can also monitor theinvestigation.” 12.Further, in M. Subramaniam and another vs. S. Janaki andanother, (2020) 16 SCC 728, the Three Judge Bench of theHon’ble Supreme Court, when the High Court in that matter hadgiven direction to register the FIR, quashed and set set asidethat order. Therefore, with this clear legal position, no prayerwhich has been prayed in these Petitions can be allowed. Wecannot even opine as to whether cognizable offence has beenmade out or not, but then as in the decision of M. Subramaniamand another vs. s. Janaki and another, (supra), liberty wasgranted to the petitioners therein to approach the Magistrateunder Section 156(3) of the Code of Criminal Procedure, weadopt the same procedure while disposing of these Petitions.Hence we pass following order:- O R D E R(I)All the Writ Petitions stand dismissed.(II)However, we observe that our order will not bean impediment in the way of the petitioners to cwp-247.21+15approach the police station once again and lodge acomplaint and police being satisfied that a criminaloffence is made out, may register the FIR. (III)It will be also open to the petitioners toapproach the jurisdictional Judicial Magistrate FirstClass, if deemed appropriate and necessary andthen the learned Magistrate concerned may adoptthe requisite procedure under Section 156(3) of theCode of Criminal Procedure.[ROHIT W. JOSHI] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/MAR25