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Gujarat High Court · body

2016 DIGILAW 2091 (GUJ)

Jaimini Hirenbhai Vyas v. State of Gujarat

2016-10-03

SONIA GOKANI

body2016
ORDER : SONIA GOKANI, J. The petitioner, party-in-person, had approached this Court by way of Special Criminal Application No. 566 of 2016 and this Court (Coram: Hon'ble Mr. Justice J.B Pardiwala) had directed the lodgment of the FIR by passing the following order on 29.01.2016: “Rule returnable forthwith. Mr. Patel, the learned APP waives service of notice of rule for and on behalf of the respondents Nos. 1 to 3. The petitioner complains of inaction on the part of the Police authority in not registering the first information report, pursuant to the complaint lodged by her in writing dated 4.1.2016, which is annexed as Annexures “A” to this petition. The Police Inspector of the Paldi Police Station shall look into the contents of the complaint - Annexures “A to this petition and decide whether the same discloses commission of any cognizable offence or not. After perusal of the complaint and other materials, and after preliminary inquiry, if it is found that the complaint discloses commission of cognizable offence, then appropriate directions be Wissued to the concerned person for registration of the FIR. However, after going through the complaint and the materials, if any, the respondent No. 3 founds that the complaint fails to disclose commission of any cognizable offence, then in such circumstances, the petitioner be informed in writing about the same, within a period of three weeks from today, by assigning reasons in brief. For any reason, if the Police refuses to register the FIR, then it shall be open for the petitioner to avail of the remedy under Section 200 of the Code of Criminal Procedure. With the above, this application is disposed of. Rule is made absolute. Direct service permitted.” 2. The petitioner has approached this Court once again seeking the following reliefs: “15. A. YOUR LORDSHIPS may be pleased to direct the Resp. no. 3 to lodge the FIR and for implementation of the order. B. YOUR LORDSHIPS may be pleased to take pleasure of cognizance for noncompliance of the Order under article 215 of Constitution of India. C. YOUR LORDSHIPS may be pleased to direct the resp. no. 3 to give explanation for the acts and unfairness and unaffordable manner act preliminary inquiry where it is the duty and fundamental rights under Article 14 & 21 of Constitution are also violated. C. YOUR LORDSHIPS may be pleased to direct the resp. no. 3 to give explanation for the acts and unfairness and unaffordable manner act preliminary inquiry where it is the duty and fundamental rights under Article 14 & 21 of Constitution are also violated. D. YOUR LORDSHIPS may be pleased to pass any such other and/or further orders that may be thought just and prroper in the facts & circumstances of the present case. Please call the paper book of Sp. Cr. no. 566/16. E….” 3. This Court heard, at length, the petitioner party-in-person, who has lamented that there is non-compliance of the order of this Court by the Respondent-authorities. She also, further, urged that she and her daughter both are facing the threat of dire consequences. However, no action has been taken by the police authorities. She also has alleged against some of the police officers by name. It is her chief allegation that the family, which has attempted to uproot her and has taken the law in their hands, is being protected by the police. 4. By way of additional affidavit, she has, further urged that the Officer concerned has not obeyed the directions issued by this Court to the Paldi Police Station. She has also given another affidavit on 10.08.2016, making a grievance that she and her daughter are staying alone without the presence of any male member in the house, and therefore, even for the service of any affidavit, they ought not to have reached her home. 5. In the affidavit filed by PSI, Paldai Police Station, Dated: 09.08.2016, he has stated as under at Paragraphs-4 to 8: “… 4. The present petition is filed by the petitioner to directing the respondent authority to lodge FIR on application dated 04.01.2016 it is submitted that the application was received by the respondent authority was looked and the petitioner was also called upon by the respondent authority and the petitioner did not cooperate with the respondent authority when she was called for. The respondent authority had issued a notices dated 09.01.2016, 13.01.2016 and 19.01.2016 and though served, the petitioner is not coming before the authority of recording a statement made and for clarifying certain details. The respondent authority had issued a notices dated 09.01.2016, 13.01.2016 and 19.01.2016 and though served, the petitioner is not coming before the authority of recording a statement made and for clarifying certain details. It is also submitted that the notices dated 12.02.2016 was also issued and it was served to the daughter of the petitioner and the daughter of the petitioner had also endorsed upon the notice but the petitioner is not coming or recording her statement and in turn she had written a communication dated 19.02.2016 The copies of notices dated 09.01.2016, 13.01.2016 and 13.01.2016 and 12.02.2016 are annexed herewith and marked as Annexure-R-I. 5. It is submitted that the application given by the petitioner is lacking some details and therefore, she was issued notices as well as she was contacted on her mobile number though she has not come for recording a statement. 6. It is humbly submitted that even though the respondent authority has enquired into the matter and verified the call details record of the proposed accused as stated by the petitioner and it was found that the person shown as accused were not found at the place of incident. 7. It is humbly submitted that there is dispute going on between the petitioner and the accused mentioned in the application before the Learned City Civil Court as well as the High Court. It is humbly submitted that the C.R No. II-3002 of 2016 is lodged against the petitioner under the provision of Section-323, 294(B), 506(2) and 448 of the Indian Penal Code. It is also submitted that the petitioner has also thrown stone on the woman police constable and against that also the complaint is registered against the present petitioner also and for to see that the situation may not be out of control, Chapter Case No. 14 of 2016 and Chapter Case No. 15 of 2016 are initiated under provision of Section-107 of Criminal Procedure Code. It is also submitted that the petitioner had made application dated 10.01.2016, 22.01.2016, 25.01.2016 and 19.02.2016 but had not come give statement and even for lodging of FIR also her presence is required. It is also submitted that the petitioner had made application dated 10.01.2016, 22.01.2016, 25.01.2016 and 19.02.2016 but had not come give statement and even for lodging of FIR also her presence is required. It is humbly submitted that in the present case the petitioner has not cooperated with the respondent authority and because of incorporation on the part of the petitioner the application dated 04.01.2016 was filed on 19.02.2016 and it was also informed to the petitioner vide communication dated 19.02.2016 A copy of communication dated 19.02.2016 is annexed herewith and marked as Annexure-R-II. It is humbly submitted that if the petitioner comes before the authority and submit all the necessary details then the respondent authority may take appropriate action in the interest of justice.” 6. Having, thus, heard both the sides and also having considered the contents of affidavits filed by the Petitioner as well as the concerned Police Officer for and on behalf of the Respondent authorities, this Court notices that the total number of applications moved by the present petitioner are nearly 26 in numbers right from the year 2008. This Court, therefore, will not go into the merits of the matter. At the same time, when earlier this Court vide its order dated 29.01.2016 had directed the officer concerned to look into the matter and to register an FIR, if, any cognizable offence is made out registration was directed. However, as the officer concerned is of the opinion that no cognizable offence is made out, the petitioner shall be at LIBERTY to approach the concerned Superior Police Officer not below the rank of Dy. Commissioner of Police under Section 154(3) of the Code of Criminal Procedure (for short, ‘the Code’). Section-154 of the Code reads thus: “154. Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. 881 (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.” 7. Further, while examining the case of the present petitioner, the concerned Sr. Police Officer shall bear in mind the dictum of the Apex Court in “LALITA KUMARI v. STATE of UTTAR PRADESH”, reported in (2014) 2 SCC 1 . Here, it would be beneficial to regurgitate the relevant paragraph of the said decision, which reads as under: “120. In view of the aforesaid discussion, we hold: (i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, 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 first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) 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 offence. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) 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 offence. (vi) 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 offences; (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. (vii) 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 reflected in the General Diary entry. (viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in ra police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.” 8. Bearing in mind the aforementioned ratio laid down by the Apex Court, the concerned Sr. Police Officer shall look into the matter and lodge the first information report, if any, cognizable offence is made out. In that case, he shall also send a copy of the same at the residence of the petitioner, FORTHWITH. The petitioner-party-in-person shall be communicated the brief reasons, if eventually, the concerned Sr. Police Officer choses not to lodge the first information report. Such exercise shall be completed by the concerned Sr. Police Officer at the earliest and without further loss of time following the dictum of LALITA KUMARI v. STATE of UTTAR PRADESH (Supra). In the event, if, the petitioner is still aggrieved, she may approach the Court concerned for lodgment of a private complaint under Section 190 or 200 of the Code. 9. Police Officer at the earliest and without further loss of time following the dictum of LALITA KUMARI v. STATE of UTTAR PRADESH (Supra). In the event, if, the petitioner is still aggrieved, she may approach the Court concerned for lodgment of a private complaint under Section 190 or 200 of the Code. 9. The petition stands DISPOSED OF accordingly. Direct Service is permitted.