High Court

Legal Reasoning

cwp-1830.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1830 OF 2024Virendra S/o Sitaram Wagh,Age-43 years, Occu:Agriculturist,R/o-Hamaalwadi, Khultabad,Tq-Khultabad, Dist-Aurangabad. ...PETITIONER VERSUS 1) The State of Maharashtra, (Through P.I. Gondi Police Station), Gondi Police Station, Tq-Ambad, Dist-Jalna,2) DGP, State of Maharashtra, Lion Gate, Fort, Mumbai-400001,3) Devendra Gangadhar Fadanvis, Age-54 years, Occu:HM & Politician, R/o-277, Gorepeth, Nagpur, Maharashtra – 440010,4) Tushar C. Doshi, At relevant point of time working as SP, Jalna, Dist-Jalna, Maharashtra. ...RESPONDENTS ... Mr. Eklavya Potdar Advocate for Petitioner. Mr. A.R. Kale, A.P.P. for Respondent Nos. 1 and 2. ... CORAM: SMT. VIBHA KANKANWADI AND ROHIT W. JOSHI, JJ. DATE : 26th MARCH, 2025 cwp-1830.242ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Petition has been filed for following reliefs:-“B) This Hon’ble High Court, may issue writ of mandamus ordirection or orders in like nature, direct the respondent No.1to register FIR against concerned police officials and concernrespondents.C)This Hon’ble High Court, may issue writ of mandamusor direction or orders in like nature, direct respondents toform SIT and conduct fair investigation to meet the ends ofjustice; or/and in alternate;D)This Hon’ble High Court, may issue writ of mandamusor direction or orders in like nature, to conduct independentand impartial judicial enquiry to be headed by retired Hon’bleJudge of this High Court and thereby guilty may be kindly beheld accountable as per the due process of law.” 2.We have heard learned Advocate for the petitioner andlearned APP for respondent Nos.1 and 2. After considering thesubmissions, it is not even necessary to issue notice to the otherrespondents.3.The learned Advocate for the petitioner submits that thepetitioner is an R.T.I. activist and is an agriculturist. Thepetitioner wants respondent Nos. 1 and 2 to take action asstated in the First Information Report (for short “the FIR”). This cwp-1830.243is in view of the fact that Marathi Quota Activist (as stated in thePetition) Mr. Manoj Jarange was on hunger strike on 29th August2023, demanding reservation of Kunbi caste certificate toMaratha Community and to support him, large number ofpersons from Maratha Community had gathered at Antarwali-Sarati, Taluka-Ambad, District-Jalna. It is the contention of thepetitioner that those persons were supporting the said leadercalmly and without any reaction. However, the Government haddeployed around 1500 police personnel as well as C.R.P.F.officers on 1st September 2023, as the petitioner says, all of asudden the police force resorted to brutal lathi-charge and teargas shell were fired. As a result of which, many persons i.e. theprotesters who had gathered, had received severe injuries. Thepetitioner had approached the concerned police authority tolodge a complaint against those persons responsible for barbaricand brutal lathi-charge on unarmed and peaceful protesters,however, he had not received any reply from the PoliceAuthorities. Therefore, an application was filed under the Rightto Information Act, 2005 on 20th September 2023, seekinginformation as to what action has been taken on his complaintsdated 2nd September 2023 and 8th September 2023. There wasno reply and therefore, the Petitioner was required to approach cwp-1830.244the First Appellate Forum under the Right to Information Act. Areply was then given that the inquiry is initiated in respect of thelathi-charge and the firing. However, it was specifically statedthat offences cannot be registered in view of the departmentalinquiry. Learned Advocate for the petitioner submits that theincident has affected many persons and therefore, there ought tohave been an action. The right to protest enshrined under theConstitution of India has been thus taken away and there has tobe an inquiry in respect, as to who had ordered the lathi-chargeand tear gas shells. Abruptly, respondent No.4 was thentransferred. 4.Learned Advocate for the petitioner, therefore, relies on thedecision in Ramlila Maidan Incident in Re, 2012(5) SCC 1 i.e.Suo Motu Writ Petition (Criminal) No.122 of 2011, decided on23rd February 2012 by the Hon’ble Supreme Court, wherein aftertaking note of the entire incident, it has been observed thatwhen there are police excesses and violation of fundamentalright, then there has to be an inquiry. It is then observed that “Inthe event of any untoward incident resulting into injury to a person orproperty of an individual or violation of his rights, it is the Police alonethat shall be held answerable and responsible for the consequencesas may follow in law.” He then relies on the decision in Ramesh cwp-1830.245Kumari vs. State (NCT of Delhi) and others, (2006) 2 SCC 677,wherein, on the basis of the observations in State of Haryana vs.Bhajan Lal, 1992 Supp. (1) SCC 335, which had examined thewhole gamut and intricacies of the mandatory nature of Section154 of the Code of Criminal Procedure, and it is observed “Theview expressed by this Court in paras 31, 32 and 33 as quoted aboveleave no manner of doubt that the provision of Section 154 of theCode is mandatory and the officer concerned is duty-bound to registerthe case on the basis of such an information disclosing cognizableoffence.” Learned Advocate for the petitioner further submitsthat only after the registration of the offence and theinvestigation, the bona fides of the petitioner can be questioned.Therefore, on the basis of the petitioner’s complaint applicationdated 2nd September 2023, the FIR should be registered.5.The learned APP, on the last occasion itself when thematter was on Board on 21st February 2025, had relied on thedecision in Vinubhai Haribhai Malaviya and others vs. State ofGujarat and another, 2020 CRI.L.J. 472, in which it was held thatthe Magistrate has power to order further investigation underSection 156(3) of the Code of Criminal Procedure even at post-cognizance stage. He submits that the inquiry is going on andeven that was conveyed. Further, offence vide Crime No.369 of cwp-1830.2462023 has been registered with Gondi Police Station underSections 307, 333, 353, 427, 435, 120-B, 143, 147, 148, 149 ofthe Indian Penal Code, with Section 135 of the MaharashtraPolice Act and Section 3 of the Prevention of Damage to PublicProperty Act. As well as Crime No. 370 of 2023 has also beenregistered with the same Police Station, almost for the sameoffences, in addition to Section 7 of Criminal Amendment Act. Itwas also pointed out by the learned APP that the petitioner hasnot taken up the steps which were necessary in view of PriyankaSrivastava and another vs. State of UP and another, 2015 (6)SCC 287, and he has alternate remedy to approach theMagistrate under Section 156(3) of the Code of CriminalProcedure. 6.At the outset, we would like to say that in the beginningitself we had asked the learned Advocate for the petitioner, as towhether the present Petition has ben filed as a public interestlitigation, but he has answered it in the negative and submitsthat the Petition has been filed in the individual capacity of thepetitioner. Therefore, taking into consideration the said aspect,we are required to consider the facts as well as the law. We maynot go into the facts of the case for the simple reason that the cwp-1830.247facts might be as stated in the Petition. But admittedly, thepetitioner does not say that he was present at the spot when theincident had taken place. According to him, the incident hadtaken place on 1st September 2023 and then he had givenExhibit-A complaint on 2nd September 2023. We would like toreproduce the said complaint and the translation thereof forbetter understanding and assessment, which reads thus:- ““ fnukad % 02@09@2023-izfr]ek- iksyhl mifujh{kd lkgsc]iksyhl Bk.ks] xksanh]rk- vacM] ft- tkyuk-fo”k; %Jh- nsosanz QM.kohl] x`gea=h] egkjk”Vª jkT; ;kaP;k fo:/n ekSts varjokyh ljkVh] rk- vacM] ft- tkyuk izdj.kh l[kksy pkSd’khd:u xqUgk nk[ky dj.ksckcr---lanHkZ %01 lIVsacj] 2023 varjokyh ljkVh] rk- vacM] ft- tkyuk ;sFks ykBhpktZ >kY;kizdj.kh fofo/k izlkj ek/;eke/;s izlkjhr >kysys o`Rr-egksn;]ojhy fo”k;h xkaHkh;kZus rdzkj djrks dh] ekSts varjokyh ljkVh] rk- vacM]ft- tkyuk ;k xkokr eukst tjkaxs ;kaps yksd’kkgh ekxkZus ejkBk vkj{k.k feGfo.;klkBhmiks”k.k lq: gksrs- gs vkanksyu Jh- nsosanz QMo.khl] x`gea=h] egkjk”Vª jkT; ;kauk lgu gksruOgrs- Eg.kwu “kM;a= jpwu ;k fBdk.kh naxy ?kMowu vk.k.ks o ;sFkhy tursyk ftoarekj.;kpk iz;Ru dj.;klkBh vkiY;k [kkR;kP;k iksyhl deZpk&;kyk vkns’k nsÅu ykBhpktZo xksGhckj dsys o ;ke/;s vusdt.k xaHkhj t[keh >kys- Eg.kwu ;kaP;koj ojhyizek.ks xqUgknk[ky dj.;kr ;kok- rlsp rRdkyhu x`gea=h vfuy ns’keq[k gs x`gea=h vlrkukgh ;kaP;koj xqUgkuksan dj.;kr vkyk gksrk- gs dkgh efgus rq:axkrgh xsys gksrs- R;keqGs dk;nk lokZalkBhleku vlY;keqGs ;k izdj.kh jkT;kps Jh- nsosanz QM.kohl] x`gea=h] egkjk”Vª jkT; ;kauh“kM;a= jpwu naxy ?kMfo.ks o tursyk ftohr ekj.;kpk iz;Ru dsY;keqGs ;kaP;koj pkSd’khphlq:okr d:u xqUgk uksanokok] gh fouarh- ulrk vkEgh ek- U;k;ky;kr nkn ekxhy ;kph uksan ?;koh- cwp-1830.248vkiyk fo’oklw] Lok{kfjr@&fojsanz flrkjke ok?k ekfgrh vf/kdkjh dk;ZdrkZ]izHkkx dza-06] ?kj dza-71] eq-iks- [kqyrkckn]rk- [kqyrkckn] ft- vkSjaxkckn & 431 101izfryhih %1 ½ ek- jkT;iky] egkjk”Vª jkT;] eqacbZ - ;kauk ojhy izdj.k xaHkhj dkj.kkus vki.ktkrhus y{k nsowu ;ksX; rh dk;ZokghLro vkiY;k lsosr lknj- fVi %eyk ;k izdj.kkeqGs =kl gksow u;s Eg.kwu lacaf/kr ikyhl Bk.ks ;kauk rls dGokos] ghfouarh-ekQZr]iksyhl mifujh{kd]iksyhl Bk.ks] xksanh]rk- vacM] ft- tkyuk-^^.English translation of the said complaint reads as under:-“ Date:02.09.2023To,The Police Sub Inspector,Police Station, Gondi,Tal-Ambad, Dist-Jalna. Sub: Regarding registering a case against Shri Devendra Fadanvis, Home Minister, Maharashtra State, in the case of Mauje Antarwali Sarati, Taluka-Ambad, District-Jalna, after conducting a thorough investigation.Reference: News dated 1st September 2023, spread in various media regarding the incident of lathi-charge in Antarwali Sarati, Tal-Ambad, District-Jalna.Sir,With the above mentioned subject, I seriously complain about thatManoj Jarange was on a hunger strike to get Maratha reservation throughdemocratic means in the village of Antarwali Sarati, Taluka-Ambad, cwp-1830.249District-Jalna. This agitation was not tolerated by Shri Devendra Fadnavis,Minister of State for Home Affairs, Maharashtra State. Therefore, he conspiredto create a riot in this place and tried to kill the people here alive, andordered his police personnel to lathi-charge and fire. And many people wereseriously injured in this, so a case should be registered against him as above.Also, a case was registered against the then Home Minister AnilDeshmukh even when he was the Home Minister. He had also spent a fewmonths in jail. Therefore, since the law is same for everyone, in present case,investigation should be made against Shri Devendra Fadnavis, Home Minister,Maharashtra State, and a case should be registered against him for conspiringto create riots and trying to kill people. It is prayer.If not, we should appeal to the Honourable Court. Yours faithfully, Sd/- Virendra Sitaram Wagh, RTI Activist, Ward No.6, H. No.71, At Post-Khultabad, Tal-Khultabad, District-Aurangabad.Copy to:1.Your Excellency, the Hon’ble Governor, Maharashtra State, Mumbai, isrequested to kindly look into the above matter and take appropriate action asit is serious. Note:Please inform the concerned Police Station so that I do not getinvolved in this matter.Through:PSI, Police Station, Gondi,Taluka-Khultabad, District-Aurangabad.” (Translated by Senior Translator and Interpreter, High Court of Bombay, Bench at Aurangabad) cwp-1830.24107.Perusal of the said complaint would show that it was onlyagainst respondent No.3. and not even against respondent No.4.Name of respondent No.4 has not been reflected. Another fact isthat the said complaint is as cryptic as it is and the source ofinformation of the petitioner is not disclosed. The FIR cannot belodged on the basis of a cryptic information. When and howconspiracy was hatched up, has not even been stated andtherefore, it cannot be stated on the basis of the said complainttaken as it is, that any cognizable offence has been made out.When the complaint is not making out any cognizable offence,the registration of the same is not mandatory. The decision inRamesh Kumari vs. State (NCT of Delhi) and others, (supra), ison the point regarding mandatory provisions of Section 154 ofthe Code of Criminal Procedure when the information isdisclosing cognizable offence.8.Definitely, there would be, in certain case, police atrocities.However, unless the details of police atrocities with name andhow those atrocities have been committed are given, furtherthings cannot be ordered. Certainly, the observations in RamlilaMaidan Incident in Re, (supra), are binding on this Court, cwp-1830.2411however, it can be seen that before the Hon’ble Supreme Courtcomplete facts were placed. The Constitution of India, certainly,gives freedom to protest to the citizens but it is with restrictions.This has also been stated in Ramlila Maidan Incident in Re,(supra). 9.The fact which is coming on record is that two offences arealready registered and the investigation thereof is going on. Yet,if the petitioner was of the opinion that there should be anotherFIR which he should lodge, then the FIR giving compete detailsought to have been given or tried to be given and then if it is notrecorded then he was supposed to adopt the procedure that hasbeen laid down in Priyanka Srivastava and another vs. State ofUP and another, (supra). There is no explanation in the entirePetition, as to why the petitioner has had not taken the steps ascontemplated under Priyanka Srivastava and another vs. Stateof UP and another, (supra).10.Here, the petitioner prays for registration of the FIR,however, we would like to rely on Sakiri Vasu Vs. State of UttarPradesh and others, 2008 (2) SCC 409, which was then followedin T.C. Thangaraj vs. V. Engammal & others, 2011(12) SCC 328, cwp-1830.2412Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage andothers, 2016(6) SCC 227 and M. Subramaniam and others vs. S.Janaki, 2020(16) SCC 728. In Sudhir Bhaskarrao Tambe vs.Hemant Yashwant Dhage and others, (supra), a note has beentaken of the decision in Sakiri Vasu Vs. State of Uttar Pradeshand others, (supra), wherein it has been observed that: “ If a person has a grievance that his FIR has not beenregistered by the police, or having been registered, properinvestigation is not being done, then the remedy of theaggrieved person is not to go to the High Court Under Article226 of the Constitution of India, but to approach theMagistrate concerned Under Section 156(3) CrPC. If such anapplication under Section 156(3) CrPC is made and theMagistrate is, prima facie, satisfied he can direct the FIR tobe registered, or if it has already been registered, he candirect proper investigation to be done which includes in hisdiscretion, if he deems it necessary, recommending changeof the investigating officer, so that a proper investigation isdone in the matter.”11.In Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhageand others, (supra), it is then specifically observed that:-“ We have 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.”.It has been further observed that:- cwp-1830.2413“ We are of the opinion that if the High Courts entertain suchwrit 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 that thecomplainant must avail of his alternate remedy to approachthe concerned Magistrate Under Section 156(3), Code ofCriminal Procedure, and if he does so, the Magistrate willensure, if prima facie he is satisfied, registration of the firstinformation report and also ensure a proper investigation inthe matter, and he can also monitor the investigation.”12.Note of Ramesh Kumari vs. State (NCT of Delhi) andothers, (supra) was taken in T.C. Thangaraj vs. V. Engammal &others, (supra) and it has been held that the two-Judge Benchdecision in Ramesh Kumari vs. State (NCT of Delhi) and others,(supra) will have to be now read in the light of the principles laiddown by the Constitution Bench of the Hon’ble Supreme Court inState of West Bengal and others vs. Committee for Protection ofDemocratic Rights, West Bengal and others, [(2010) 3 SCC 571,and then in T.C. Thangaraj vs. V. Engammal & others, (supra),the decision in Sakiri Vasu Vs. State of Uttar Pradesh and others,2008 (2) SCC 409, (supra) was relied upon.13.Recently in Ranjit Singh Bath and another vs. UnionTerritory Chandigarh and another, 2025 LiveLaw (SC) 329 cwp-1830.2414(Criminal Appeal No.4313 of 2024, decided on 6th March 2025 bythe Hon’ble Supreme Court), it has been observed that, “Beforea complainant chooses to adopt a remedy under Section 156(3) of theCrPC, he must exhaust his remedies under sub-Sections (1) and (3) ofSection 154 of the CrPC and he must make those averments in thecomplaint and produce the documents in support.” The law laid downin Priyanka Srivastava and another vs. State of UP and another,(supra) has been reiterated. Therefore, when a procedure hasbeen set, we do not take this to be a fit case where we shouldexercise our constitutional powers under Article 226 of theConstitution of India to grant any reliefs. 14.The Writ Petition stands dismissed at the threshold. [ROHIT W. JOSHI] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/MAR25