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2017 DIGILAW 658 (GUJ)

Nagarbhai Govindbhai Patel v. State of Gujarat

2017-03-23

J.B.PARDIWALA

body2017
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the writ applicant- original complainant has prayed for the following reliefs: "(a) To issue a writ of mandamus and/or a writ of certiorari or any other writ, order or direction, directing the respondent No. 2 and 3 to register the complainant and/or information disclosing cognizable offences given by the petitioner as an FIR and investigate the same in accordance with law. (b) To issue a writ of mandamus and/or a writ of certiorari or any other writ, order or direction, directing CID Crime or any other independent agency to investigate the complaint and/or FIR. (c) To direct the respondent No. 3 to initiate appropriate departmental action against the respondent No. 2 for showing such open favours to the accused in relation to the written complaint dated 28.08.2015 at Annexure-D. (d) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court." 2. The case of the writ applicant may be summarised as under: "2.1 The writ applicant claims to be the true and lawful owner of the land bearing survey Nos. 22/2/1, 219/2/2 and 219/1/2 situated at the village: Bodakdev, District: Ahmedabad. It is the case of the writ applicant that in the year 2002, the respondents Nos. 4 and 5 visited his residence and informed that one Abhishek Patel, a resident of Ahmedabad, was desirous of purchasing the land bearing survey No. 22/2/1, Final Plot No. 55/1 ad-measuring 1517 sq. mtrs. It was also represented by the respondents Nos. 4 and 5 that Abhishek Patel would make the entire payment of the sale consideration within two months from the date of the execution of the agreement to sale. The respondents Nos. 4 and 5 also assured the writ applicant of the credentials of Abhishek Patel. Abhishek Patel was projected as a partner of the respondents Nos. 4 and 5. According to the writ applicant, the respondent No. 4 namely, Rajesh Chakvawala is a practicing advocate. The writ applicant relied upon the words and the representation of Shri Chakvawala and agreed to sell his land bearing survey No. 22/2/1 to Abhishek Patel. The respondent No. 4, Shri Chakvawala prepared an agreement to sale along with the respondent No. 5. The agreement to sale was signed by the writ applicant and his wife Kokilaben. The writ applicant relied upon the words and the representation of Shri Chakvawala and agreed to sell his land bearing survey No. 22/2/1 to Abhishek Patel. The respondent No. 4, Shri Chakvawala prepared an agreement to sale along with the respondent No. 5. The agreement to sale was signed by the writ applicant and his wife Kokilaben. At the time of the execution of the agreement to sale, the price of the land was fixed at Rs. 26,777/- per sq. yard. The agreement to sale dated 13th May 2010 is on record and is annexed as Annexure-E. It is the case of the writ applicant herein that Shri Chakvawala also managed to get the register of the Notary Public, and obtained the signatures of the writ applicant, and his wife Kokilaben in the register of the Public Notary at their residence. 2.2 On 29th September 2012, the writ applicant was served with an order passed by the Civil Court in the Civil Suit No. 671 of 2012 filed by the respondents Nos. 4 and 5 against the writ applicant and his family members. The order recited that a Court Commissioner had been appointed for the inspection of the lands bearing survey Nos. 219/2/2, 22/2/1 and 219/2/1. The writ applicant, at the earliest, collected all the relevant documents of the civil suit from the Court concerned and realised that the respondents Nos. 4 and 5 herein had duped him by committing forgery. 2.3 The writ applicant herein has alleged that the last page of the agreement to sale dated 13th May 2010 executed in favour of Abhishek Sunilbhai Patel was taken out and the same came to be inserted in a bogus agreement to sale prepared by the respondents Nos. 4 and 5 with respect to all the three survey numbers. On the strength of such bogus and concocted agreement to sale, the respondents Nos. 4 and 5 have filed a civil suit for the specific performance of contract. 2.4 After lodging the complaint in writing at the concerned police station, the writ applicant herein preferred the Special Criminal Application No. 5988 of 2015, praying for a writ of mandamus to the concerned police officer for registering the F.I.R. The said writ application came to be disposed of by this Court vide order dated 19th October 2015 with the following terms: "1. By this application under Article 226 of the Constitution of India, the petitioner has a grievance to redress as regards the inaction on the part of the police authorities in not registering the FIR pursuant to the complaint lodged by the petitioner in writing to the Police Inspector, Vastrapur Police Station, dated 28.08.2015. 2. The Police Inspector, Vastrapur Police Station, Ahmedabad, shall look into the complaint at Annexure-A and take a decision whether the same discloses commission of any cognizable offence or not. After perusal of the complaint and inquiry, if any, the Police Inspector, Vastrapur Police Station, Ahmedabad, is of the view that the same discloses commission of a cognizable offence, then, in such circumstances, the First Information Report be registered forthwith. However, if the Police Inspector, Vastrapur Police Station, Ahmedabad, is of the view that no case is made out for the registration of the FIR, then, in such circumstances, the petitioner be informed in writing about the same by giving reasons in brief within a period of fortnight from today. In the event, if the police comes to the conclusion that no case is made out for the registration of the FIR, it shall be open for the petitioner to avail of an appropriate remedy available under the Chapter-XII and Chapter-XV of the Cr.P.C. 3. With the above direction, this application is disposed of. I clarify that I have otherwise not gone into the merit of the matter. " 2.5 It appears from the materials on record that pursuant to the order passed by this Court referred to above, the police officer of the Vastrapur Police Station namely, one Shri A.D. Parmar prepared a report stating that the complaint lodged by the writ applicant herein failed to disclose commission of any cognizable offence, and thereby, declined to register the F.I.R. The report prepared by the Police Inspector of the Vastrapur Police Station was forwarded to the Assistant Police Commissioner "A" Division, Ahmedabad city." 3. Being dissatisfied with the manner in which the preliminary inquiry was conducted by the Police Inspector of the Vastrapur Police Station, the writ applicant has come up with this writ application. 4. After the filing of the present writ application, two applications were filed. One by Mr. Chakvawala for being impleaded as the party respondent No. 4, and another by Shri Alpesh Chimanlal Patel as the respondent No. 5. 4. After the filing of the present writ application, two applications were filed. One by Mr. Chakvawala for being impleaded as the party respondent No. 4, and another by Shri Alpesh Chimanlal Patel as the respondent No. 5. This Court allowed one of the applications and permitted the party respondent No. 4 to be impleaded in the main petition. 5. Mr. I.H. Syed, the learned counsel appearing for the writ applicant vehemently submitted that the case at hand is one of a large scale fraud committed by an advocate in collusion with others. He submitted that the advocate thoroughly betrayed the writ applicant and created an absolute false and concocted document in the form of an agreement to sale. According to Mr. Syed, his client had no intention to sell the other parcels of land, except the survey No. 22/2/1, Final Plot No. 55. Mr. Syed submits that the document, which is at page 32 i.e. the agreement to sale dated 13th May 2010, is a forged document. He submits that the two receipts acknowledging the payment, which are at page Nos. 50 and 51 respectively, are also bogus and concocted. The writ applicant asserts that the signatures on the two receipts are forged. 6. Mr. Syed submits that the bare reading of the complaint discloses commission of a cognizable offence and it was the duty of the Police Inspector to register the F.I.R. in accordance with law and carry out the investigation. The Police Inspector could not have initiated a preliminary inquiry having regard to the serious nature of allegations, more particularly, of forgery. According to Mr. Syed, the Police Inspector cannot go into the question whether the allegations are true or false. The credibility of the allegations levelled in the complaint also cannot be gone into at the time of the registration of the F.I.R. 7. Mr. Syed has placed strong reliance on a recent pronouncement of the Supreme Court in the case of State of Telangana vs. Habib Abdullah Jeelani and Others, (2017) 2 SCC 779 . 8. In such circumstances referred to above, Mr. Syed prays that there being merit in this writ application, the same be allowed and the writ of mandamus be issued to the police to register the F.I.R. and carry out the investigation in accordance with law. 9. On the other hand, this writ application has been vehemently opposed by Mr. 8. In such circumstances referred to above, Mr. Syed prays that there being merit in this writ application, the same be allowed and the writ of mandamus be issued to the police to register the F.I.R. and carry out the investigation in accordance with law. 9. On the other hand, this writ application has been vehemently opposed by Mr. B.B. Naik, the learned senior counsel appearing for the respondent No. 4 - Mr. Chakvawala and Mr. Bhargav Bhatt, the learned counsel appearing for the private respondent - Mr. Alpesh Patel. Both the learned counsel submitted that this writ application is nothing, but an abuse of the process of law. After a thorough preliminary inquiry, the Police Inspector has reached to the conclusion that the complaint lodged by the writ applicant fails to disclose commission of a cognizable offence, and therefore, the Police Inspector rightly declined to register the F.I.R. The learned counsel would submit that the statement of Abhishek Patel came to be recorded by the Police Inspector in the course of the preliminary inquiry and he has stated in so many words that he had not entered into any agreement to sale with the writ applicant with respect to the land bearing survey No. 22/2/1, Final Plot No. 55 situated at village: Bodakdev, Taluka: Daskroi. According to the learned counsel, if such is the stance of Abhishek Sunilbhai Patel, then the entire case put up by the writ applicant that the last page of the agreement to sale dated 13th May 2010 in favour of Abhishek Patel has been taken out and inserted in the so-called alleged bogus agreement to sale, should fail. The learned counsel has invited my attention to the statement of one Hirenbhai, son of Ashokbhai Govindbhai Patel, which is at page 163. Ashokbhai Govindbhai Patel, who has passed away, had put his signature as one of the attesting witnesses in the agreement to sale dated 13th May 2010 as well as in the disputed agreement to sale dated 17th May 2010. According to the statement of the son of late Ashokbhai, the case of the writ applicant should fail. The learned counsel also invited my attention to the statement of Abhishek Sunilbhai Patel, which is at page 166 to the paper book. 10. According to the statement of the son of late Ashokbhai, the case of the writ applicant should fail. The learned counsel also invited my attention to the statement of Abhishek Sunilbhai Patel, which is at page 166 to the paper book. 10. Both the learned counsel has placed strong reliance on the decision of this Court in the case of Farsubhai Muljibhai Goklani vs. State of Gujarat and Others (Special Criminal Application No. 1417 of 2017). Both the learned counsel have relied upon the affidavit-in-reply filed by the respondents Nos. 4 and 5 respectively. 11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the relief prayed for in this writ application. 12. The case at hand has a very checkered history. The parties are fighting past almost by now seven years. The moot question before me is whether I should issue a writ of mandamus to the Police Inspector concerned to register the F.I.R. on the basis of the complaint lodged by the writ applicant in writing. In the complaint, there are no doubt allegations of cheating and forgery. The two receipts, which are on record at page 50 and 51 respectively, does not appear to have been collected from the persons which are supposed to be in possession so as to ascertain the genuineness of the signature. According to the writ applicant, on both the receipts, someone has forged his signature. In the recent pronouncement of the Supreme Court in the case of Habib Abdullah (supra), the Court held as under: "6. Having stated what lies within the domain of the investigating agency, it is essential to refer to the Constitution Bench decision in Lalita Kumari vs. Government of Uttar Pradesh and Others, (2014) 2 SCC 1 . The question that arose for consideration before the Constitution Bench was whether "a police officer is bound to register a first information report upon receiving any information relating to commission of a cognizable offence under Section 154 Cr.P.C. or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same"? While interpreting Section 154 Cr.P.C. the Court addressing itself to various facets opined that Section 154(1) Cr.P.C. admits of no other construction but the literal construction. Thereafter it referred to the legislative intent of Section 154 which has been elaborated in State of Haryana and Others vs. Bhajan Lal and Others, AIR 1992 SC 604 and various other authorities. Eventually the larger Bench opined that reasonableness or credibility of the information is not a condition precedent for the registration of a case. Thereafter there was advertence to the concept of preliminary inquiry. In that context, the Court opined thus:- "103. It means that the number of FIRs not registered is approximately equivalent to the number of FIRs actually registered. Keeping in view the NCRB figures that show that about 60 lakh cognizable offences were registered in India during the year 2012, the burking of crime may itself be in the range of about 60 lakhs every year. Thus, it is seen that such a large number of FIRs are not registered every year, which is a clear violation of the rights of the victims of such a large number of crimes. 104. Burking of crime leads to dilution of the rule of law in the short run; and also has a very negative impact on the rule of law in the long run since people stop having respect for the rule of law. Thus, non-registration of such a large number of FIRs leads to a definite lawlessness in the society. 105. Therefore, reading Section 154 in any other form would not only be detrimental to the scheme of the Code but also to the society as a whole. It is thus seen that this Court has repeatedly held in various decided cases that registration of FIR is mandatory if the information given to the police under Section 154 of the Code discloses the commission of a cognizable offence." 7. While dealing with the likelihood of misuse of the provision, the Court ruled thus:- "114. It is true that a delicate balance has to be maintained between the interest of the society and protecting the liberty of an individual. As already discussed above, there are already sufficient safeguards provided in the Code which duly protect the liberty of an individual in case of registration of false FIR. It is true that a delicate balance has to be maintained between the interest of the society and protecting the liberty of an individual. As already discussed above, there are already sufficient safeguards provided in the Code which duly protect the liberty of an individual in case of registration of false FIR. At the same time, Section 154 was drafted keeping in mind the interest of the victim and the society. Therefore, we are of the cogent view that mandatory registration of FIRs under Section 154 of the Code will not be in contravention of Article 21 of the Constitution as purported by various counsel." 8. The exceptions that were carved out in Lalita Kumari Case (2014) 2 SCC 1 pertain to medical negligence cases as has been stated in Jacob Mathew vs. State of Punjab, (2005) 9 SCC (Cri) 1369. The Court also referred to the authorities in P. Sirajuddin vs. State of Madras, (1970) 1 SCC 595 and CBI vs. Tapan Kumar Singh, (2003) 6 SCC 175 and finally held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence." 13. In the case of Farsubhai (supra), I had the occasion to consider the law on the subject as regards the issue of mandamus to the police to register the F.I.R. I may quote the relevant observations: "24. In the case of Farsubhai (supra), I had the occasion to consider the law on the subject as regards the issue of mandamus to the police to register the F.I.R. I may quote the relevant observations: "24. The question is to what extent I should interfere, more particularly, when it is the case of the police that no case is made out for registration of the first information report on conclusion of the preliminary inquiry. 25. Without questioning the locus of the writ applicant to file a complaint in writing as regards the commission of a cognizable offence addressed to the police officer, in-charge of the concerned police station, if the same is filed to wreck vengeance, to settle the personal score and is politically motivated, then the Court of law should not come in aid of such complainant to satisfy his personal vengeance. 26. Mandamus is one of the prerogative writs issued by the superior Courts (High Court or Supreme Court), which is in the shape of command to the State, its instrumentality or its functionaries to compel them to perform their constitutional/statutory/public duty. 27. A writ of mandamus is an extraordinary remedy to be invoked only upon special occasion and in exceptional circumstances. It is intended to supply deficiency in law. It cannot be granted merely for the asking but has to be obtained where there is no alternative, efficacious and adequate remedy. It cannot be used as an appeal against the decision of a court, tribunal or an authority exercising statutory power. It can only be issued as a last resort where the court is satisfied that without its aid there would be failure of justice. 28. Mandamus is an action or judicial proceeding of a civil nature extraordinary in the sense that it can be maintained only when there is no other adequate remedy, prerogative in its character to the extent that the issue is discretionary, to enforce only clear legal rights, and to compel courts to take jurisdiction or proceed in the exercise of their jurisdiction, or to compel corporations, public and private, and public boards, commissions, or officers, to exercise their jurisdiction or discretion and to perform ministerial duties, which duties result from an office, trust, or station, and are clearly and peremptorily enjoined by law as absolute and official - P.R. Aiyar, Advanced Law Lexicon, (2005), Vol. III P. 2873. 29. III P. 2873. 29. Mandamus is not a writ of right and is not granted as a matter of course (ex debito justitiae). Its grant or refusal is at the discretion of the court. A court may refuse mandamus unless it is shown that there is a clear legal right of the applicant or statutory duty of the respondent and there is no alternative remedy available to the applicant. (Union of India vs. S.B. Vohra, (2004) 2 SCC 150 ) 30. The discretion of the court, however, is not arbitrary and it must be exercised fairly, reasonably and on sound and well-established legal principles. 31. The court in the exercise of discretion must take into account a Wide variety of circumstances. It must consider the facts of the case, the exigency which calls for the exercise of discretion, the consequences of granting or refusing the writ, the nature and extent of injury likely to ensue by the grant or refusal of the writ, etc. In short, courts discretion must be governed by considerations of public policy, public interest and public good. 32. Before an applicant could get a writ of mandamus or an order in the nature of mandamus, he has to satisfy the court that the following conditions are fulfilled. (a) The applicant has a legal right. (b) The opposite party has a legal duty. (c) The application is made in good faith. (d) The applicant has no other alternative remedy. (e) The opposite party has refused relief, i.e. demand and refusal. 33. To clarify the extracts of decisions of Apex Court explaining the discretionary limitations adopted by the Writ Court while issuing writ of mandamus are as follows:- (i) Thansingh Nathmal vs. Supdt. of Taxes, AIR 1964 SC 1419 :- "The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy." (ii) Nivedita Sharma vs. Cellular Operators Association of India and Others, (2011) 14 SCC 337:- "Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation." 34. The power to issue writ of mandamus has its own well defined self imposed limitations, one of which is availability of alternative efficacious remedy on the basis of which the Writ Court can deny issuance of the said writ unless the following exceptions are found to exist. These exceptions are as follows:- (a) Violation of principles of natural justice. (b) the impugned action being bereft of authority of law. (c) when the vires of any provision is challenged. (d) Issue of enforcement/breach of fundamental rights is involved. [vide (1998) 8 SCC 1 , Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others.] 35. The relief as is evident from the grounds raised and the submissions canvassed by the learned counsel appearing for the writ applicant is sought on the basis of the verdict by the Supreme Court in the case of Lalita Kumari vs. State of U.P. (2014) 2 SCC 1 , wherein it is held as under: "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. (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. (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 a 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." 36. The decision of Lalitakumari (supra) arose out of a petition under Article 32 of the Constitution of India, seeking issuance of writ of habeas corpus or directions of like nature against the respondents therein for the protection of minor daughter who was kidnapped. The decision of Lalitakumari (supra) arose out of a petition under Article 32 of the Constitution of India, seeking issuance of writ of habeas corpus or directions of like nature against the respondents therein for the protection of minor daughter who was kidnapped. Although, the Apex Court, while formulating the question in para-6, made reference to sections 156 and 157 of the Code, yet the entire judgment of Lalitakumari and the final directions issued therein center around the statutory obligation of the police to register the offence under section 154 of the Cr.P.C. with only passing reference of sections 156 and 157 of the Code without laying down any law as regards these provisions. The Apex Court, while interpreting the statutory provisions under section 154 Cr.P.C. Said nothing further as regards the remedy available to the informant whose information of commission of the cognizable offence does not invoke any response from the police. The judgment of Lalitakumari (supra), as such, does not lay down any law in respect of the remedies available to the informant under the Cr.P.C. to be invoked in cases of the failure on the part of the police to perform its statutory duties under section 154 (1)/154(3) Cr.P.C. as a sine qua non for seeking a writ of mandamus. 37. In this context, reference can be had of the decision in Priyanka Srivastava vs. State of U.P. (2015) 6 SCC 287 , wherein their Lordships, while dwelling upon the issue as arises for consideration in the present petition, were pleased to observe: 26. At this stage, we may usefully refer to what the Constitution Bench has to say in Lalita Kumari vs. Govt. of U.P. in this regard. The larger Bench had posed the following two questions:- (i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; (ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused. Answering the questions posed, the larger Bench opined thus: 49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. Answering the questions posed, the larger Bench opined thus: 49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning............. 72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent........ 111. The Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has reason to suspect the commission of an offence. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence......... 115. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence......... 115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. After so stating the Constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state:- 120.6. 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. 120.7. 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. We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not. 27. The fact of such delay and the causes of it must be reflected in the General Diary entry. We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not. 27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to. 28. Issuing a direction stating as per the application to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate........ 30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. 31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR. 38. Similarly, in Ramdev Food Products Private Limited vs. State of Gujarat, (2015) 6 SCC 439 , their Lordship, while placing reliance on the decision in Lalita Kumari (supra), were pleased to observe: 19. Thus, this Court has laid down that while prompt registration of FIR is mandatory, checks and balances on power of police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Thus, this Court has laid down that while prompt registration of FIR is mandatory, checks and balances on power of police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Delicate balance had to be maintained between the interest of society and liberty of an individual. Commercial offences have been put in the category of cases where FIR may not be warranted without enquiry. 39. In Divine Retreat Centre vs. State of Kerala, (2008) 3 SCC 542 , while dwelling upon the scope of indulgence in a petition under Article 226 of the Constitution of India and relying on the decision in Gangadhar Janardan Mhatre vs. State of Maharashtra, (2004) 7 SCC 768 , their Lordships were pleased to hold: 42. Even in cases where no action is taken by the police on the information given to them, the informants 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 (supra) held: 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. 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. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees Union (Regd.) vs. Union of India, (1996) 11 SCC 582 . It was specifically observed that a writ petition in such cases is not to be entertained. 40. Similar view has been expressed in Aleque Padamsee vs. Union of India, (2007) 6 SCC 171 , Sakiri Vasu vs. State of Uttar Pradesh, (2008) 2 SCC 409 and Kunga Nima Lepcha vs. State of Sikkim, AIR 2010 SC 1671 . 41. Furthermore, scope of interference in a petition under Article 226 of the Constitution has been delineated in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage, (2016) 6 SCC 277 , wherein it is held:- "2. This Court has held in Sakiri Vasu vs. State of U.P. (2008) 2 SCC 409 that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) Cr.P.C. If such an application under Section 156(3) Cr.P.C. is made and the Magistrate is, prima-facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. 3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. 3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) Cr.P.C. and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation." 42. The Supreme Court in the case of Rajinder Singh Katoch vs. Chandigarh Administration, AIR 2008 SC 178 took the view that if the authorities bound by law have investigated into the matter and found that the allegations made by the complainant are not correct or do not disclose commission of any cognizable offence, then it would not be proper for the Supreme Court to issue any direction to lodge a first information report. I may quote the relevant observations made by the Supreme Court. In any event, in a case of this nature where the authorities bound by law have already investigated into the matter and found that the allegations made by the appellant against respondent No. 4 were not correct, it would not be proper for us to issue any direction to the respondent Nos. 1 to 3 to lodge a first information report. We are not oblivious to the decision of this Court in Ramesh Kumari vs. State (NCT of Delhi) and Others, (2006) 2 SCC 677 wherein such a statutory duty has been found in the Police Officer. But, as indicated hereinbefore, in an appropriate case, the Police Officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not. 43. I am at one with Mr. But, as indicated hereinbefore, in an appropriate case, the Police Officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not. 43. I am at one with Mr. Jani, the learned Additional Advocate General appearing for the State that assuming for the moment that the police officer, in the case at hand, committed a mistake in reaching to the satisfaction as to whether the allegations are sufficient to attract the ingredients of commission of a cognizable offence or not, this Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, should not go into the question as to whether the non-satisfaction of the police officer is proper or not to issue a writ of mandamus or any other writ directing the police officer to register the first information report as it is a matter to be considered by the Magistrate under section 190 read with section 200 of the Code on a complaint filed by the aggrieved party on account of the inaction on the part of the police in not registering the first information report in such cases." 14. If the observations made by the Supreme Court in the case of Habib Abdullah (supra) are made applicable to the facts of the present case, then, in my view, the Police Inspector of the Vastrapur Police Station ought to have registered the F.I.R. in accordance with law and should have conducted the investigation. 15. However, the Police Inspector thought fit to conduct a preliminary inquiry, and at the end of it, reached to the conclusion that the complaint fails to disclose commission of any cognizable offence. 16. I take notice of the fact that the report prepared by the police officer of the Vastrapur Police Station was forwarded to the Assistant Police Commissioner "A" Division, Ahmedabad city. I inquired with the learned A.P.P. appearing for the State whether the report dated 19th December 2015 of the police officer forwarded to the Assistant Police Commissioner was looked into and considered thoroughly or not. I requested the learned A.P.P. to show me something as to how the report came to be considered by the Assistant Police Commissioner "A" Division, Ahmedabad city. I requested the learned A.P.P. to show me something as to how the report came to be considered by the Assistant Police Commissioner "A" Division, Ahmedabad city. The learned A.P.P. after taking instructions from the officer concerned, informs that there is nothing on record as such to indicate that the Assistant Police Commissioner considered the report thoroughly and accept the same. 17. Having regard to the history of this litigation, at this stage, I am not inclined to issue any writ of mandamus for the registration of the F.I.R. However, I expect the Assistant Police Commissioner "A" Division, Ahmedabad city to look into the report thoroughly and take an appropriate decision whether the preliminary inquiry had been conducted in a fair, transparent and proper manner or not. I direct the Assistant Police Commissioner "A" Division, Ahmedabad city to look into the report at the earliest with all the relevant documents in this regard and take an appropriate decision in accordance with law within a period of two months from the date of receipt of this order. Let me remind the Assistant Police Commissioner that few documents, which are disputed by the writ applicant, were not collected by the police officer in the course of the preliminary inquiry and this aspect may also be looked into thoroughly. 18. With the above, this writ application is disposed of. 19. In view of the final disposal of the main application, the connected application being the Criminal Miscellaneous Application No. 3940 of 2017 is also disposed of.