High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD3 CRIMINAL WRIT PETITION NO.1709 OF 2024Anand Kashiram Sapkale,Age 64 yrs., Occ. Retired,R/o Plot No.30, Block – 2,Dhande Nagar, Jalgaon,Tq. & Dist. Jalgaon. … Petitioner… Versus …1The State of MaharashtraThrough Principal Secretary,Department of Registration andStamps, Mantralaya,Mumbai – 400 032. 2The Inspector General of Registration andController of Stamps,Ground Floor, Opp. Council Hall, New Administrative Building,Bund Garden Road, Agarkar Nagar,Pune – 411 001. 3Joint Sub Registrar,Class – II, Jalgaon 3,Vishram Pride,Survey No.436 A-1, Adarsh Nagar,Near R.T.O. Office,Jalgaon – 425 002. 4Ashok Soma Patil,Chairman,Union Bank Karmachari Saha Bhadekaru SahaBhagidari Gruhanirman Sanstha Mardayadit,Jalgaon,R/o Pimprala, Tq. & Dist. Jalgaon.
Legal Reasoning
23_Cri.WP_1709_20245Shrikrishna Harishchandra Belorkar,Secretary,Union Bank Karmachari Saha Bhadekaru SahaBhagidari Gruhanirman Sanstha Mardayadit,Jalgaon,R/o Pimprala, Tq. & Dist. Jalgaon. 6Ish’ the Landmark,Through it’s Partner Jagdish Pralhad Patil,having office at – Shop No.6,‘A’ Wing, Stadium Complex,Zilla Peth, Jalgaon.R/o Block No.2 Manisha,State Bank Colony, Ganpati Nagar,Jalgaon – 425 001. 7Sunil Dinkarrao Chaudhari,Flat No. B-6, Shree Sai Apartment,Union Bank Karmachari Saha Bhadekaru SahaBhagidari Gruhanirman Sanstha Mardayadit,Jalgaon,R/o Pimprala, Tq. & Dist. Jalgaon – 425 002.8Sagar Yadav Patil,Sudatta Colony, Near Police Colony,Jalgaon – 425 001. … Respondents...Mr. S.A. Sapkale, Advocate for petitionerMr. V.K. Kotecha, APP for State...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :29th JANUARY, 2025 33_Cri.WP_1709_2024ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present Petition has been filed invoking the constitutional powers ofthis Court under Article 226 of the Constitution of India for following reliefs :“B)By a writ of mandamus, or any other writ, or order ordirections in the like nature, the respondent no. 2 & 3 be kindlydirected to take action on the complaints of the petitioner dated26.08.2024 & 14.08.2024 respectively & conduct enquiry if requiredand proceed by commencing prosecution under section 83 for variousoffences along with offences under section 82 of The Registration Act,1908 as expeditiously as possible within 15 days.”2Heard learned Advocate Mr. S.A. Sapkale for petitioner and learnedAPP Mr. V.K. Kotecha for State. 3Learned Advocate for petitioner submits that petitioner is a member ofUnion Bank Karmachari Saha Bhadekaru Sahabhagidari Gruhanirman SansthaMaryadit, Jalgaon from 28.03.2003, of which respondent Nos.4 and 5 are Chairmanand Secretary. Petitioner is also owner of Flat No.B-5 in the above mentionedsociety’s building named ‘Shree Sai Apartment’. Though respondent Nos.4 and 5were not elected as Chairman and Secretary of said society, still they were illegallyacting as the same. As the building of society became old, it was decided toredevelop the same. While redeveloping the building area of flat of petitioner has 43_Cri.WP_1709_2024been illegally reduced. Concerned respondents have created forged documents forregistering redevelopment agreement. Accordingly, the petitioner has filedcomplaint dated 14.08.2024 before respondent Nos.2 and 3 for taking actionagainst the accused persons named in the said complaint. As no action has beentaken of said complaint dated 14.08.2024 by respondent Nos.2 and 3, the petitionerhas again filed complaint dated 26.08.2024 before said respondents. But on thesaid complaint also respondent Nos.2 and 3 have not taken any action, therefore,the present petition for aforesaid reliefs. 4Learned Advocate for petitioner, in support of his submissions, reliesupon judgment of Hon’ble Supreme Court in case of Sindhu Janak Nagargoje vs.State of Maharashtra and others [2023 LiveLaw (SC) 639], arising out of SLP (Cri.)No.5883 of 2020. That appeal was directed against the order passed by this Courton 05.10.2020 in Criminal Writ Petition No.817 of 2020 whereby this Court haddismissed the writ petition filed by the appellant to register the offence as per thecomplaint submitted by the appellant. Reliance was placed on Lalita Kumari vs.State of Uttar Pradesh and others [2014(2) SCC 1]. The learned Advocate forpetitioner vehemently submits that as per complaints filed by petitioner on14.08.2024 and 26.08.2024 respondent Nos.2 and 3 should have initiated inquiryby commencing prosecution under the provisions of the Registration Act. 5Considering the facts of present case and reliefs claimed, we may takenote of the decision in case of Sakiri Vasu vs. State of Uttar Pradesh and others 53_Cri.WP_1709_2024[2008(2) SCC 409], wherein it has been observed thus :“25.We have elaborated on the above matter because we oftenfind that when someone has a grievance that the First InformationReport has not been registered at a police station and/or anappropriate investigation is not being done by the police, he rushesto the High Court to file a writ petition or a petition under Section482 Cr.P.C. We are of the opinion that High Court should notencourage this practice and should ordinarily refuse to interfere insuch matters and relegate the petitioner to his alternating remedy,firstly under Section 154(3) and Section 36 Cr.P.C. before theconcerned police officers and if that is of no avail, by approaching aMagistrate concerned under Section 156(3).26.If a person has a grievance that his FIR has not beenregistered by the police station his first remedy is to approach theSuperintendent of Police under Section 154(3) Cr.P.C. or otherpolice officer referred to in Section 36 Cr.P.C. If despite approachingthe Superintendent of Police or the officer referred to in Section 36his grievance still persists, then he can approach a Magistrate underSection 156(3) Cr.P.C. instead of rushing to the High Court by wayof a writ petition or a petition under Section 482 Cr.P.C. Moreoverhe has a further remedy of filing a criminal complaint under Section200 Cr.P.C. Why then should writ petitions or Section 482 petitionsbe entertained when there are so many alternative remedies ?”6A decision in Sakiri Vasu (supra) was then relied in case of T.C.Thangaraj vs. V. Engammal & others [2011(12) SCC 328] and Sudhir BhaskarraoTambe vs. Hemant Yashwant Dhage and others [2016(6) SCC 227]. In case of 63_Cri.WP_1709_2024Sudhir (supra) it has been observed thus :“[2] This Court has held in Sakiri Vasu v. State of U.P., 2008 2 SCC 409 ,that if a person has a grievance that his FIR has not been registered bythe police, or having been registered, proper investigation is not beingdone, then the remedy of the aggrieved person is not to go to the HighCourt under Article 226 of the Constitution of India, but to approach theMagistrate concerned under Section 156(3) CrPC. If such an applicationunder Section 156(3) CrPC is made and the Magistrate is, prima facie,satisfied, he can direct the FIR to be registered, or if it has already beenregistered, he can direct proper investigation to be done which includesin his discretion, if he deems it necessary, recommending change of theinvestigating officer, so that a proper investigation is done in the matter.We have said this in Sakiri Vasu v. State of U.P., 2008 2 SCC 409 becausewhat we have found 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. [3] We are of the opinion that if the High Courts entertain such writpetitions, then they will be flooded with such writ petitions and will notbe able to do any other work except dealing with such writ petitions.Hence, we have held that the complainant must avail of his alternateremedy to approach the Magistrate concerned under Section 156(3)CrPC and if he does so, the Magistrate will ensure, if prima facie he issatisfied, registration of the first information report and also ensure aproper investigation in the matter, and he can also monitor theinvestigation.”7Further, all these decisions are referred in three Judge bench ofHon’ble Supreme Court in M. Subramaniam and others vs. S. Janaki [2020(16) SCC 73_Cri.WP_1709_2024728]. Especially, paragraph Nos.2, 3 and 4 from Sudhir Tambe (supra) werereferred. Important point to be noted is that in Three Judge bench decision in M.Subramaniam (supra), the order passed by Madurai bench of Madras High Court toregister the case i.e. First Information Report on the basis of complaint waschallenged. That order was set aside. Taking into consideration the decision inSakiri Vasu (supra), Mohd. Yusuf vs. Smt. Afaq Jahan [2016(1) SCC 627] andSudhir Tambe (supra), as aforesaid, the impugned order was set aside. Therefore,in this case, the Petitioner has the remedy to approach the Magistrate under Section175(3) of Bharatiya Nagarik Suraksha Sanhita, 2023 and we adopt the same courseas was adopted in case of M. Subramaniam (supra) and observe that this Court hasnot expressed any opinion on the merits of the complaint as to whether it isdisclosing any criminal offence or not. However, this proceeding should not betaken as an impediment for the Petitioner to approach concerned JudicialMagistrate, if advised. Of course, the Magistrate is then guided by the provisions oflaw. With these observations, the Petition stands disposed of.( SANJAY A. DESHMUKH, J. )( SMT. VIBHA KANKANWADI, J. )agd