0903cwp269.10.odt 1/7 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL WRIT PETITION NO.269 OF 2010 Bhimandas Minhomal Dewani ..vs.. State of Mah. th rough its Secretary, Deptt. of Home, Law and Order Division, Mantralaya, Mumbai and anr. ------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------- Mr.G.L.Bajaj Adv. for the petitioner. Mr.Nitin Sambre, PP for the State. CORAM : V.K.TAHILRAMANI AND PRASANNA B.VARALE, JJ. DATED : 9TH MARCH, 2011. 1. The case of the petitioner is that he has tried to lodge some complaints against respondent no.2, however, the police authorities are not registering F.I.R. Hence, he has prayed that the police authority be directed to lodge FIR and investigate the matter. 2. The Supreme Court in the case of Aleque Padamsee and ors. .vs. Union of India and ors., reported in (2007)6 SCC 171, has held that if information is given to the police regarding commission of cognizable offence and no action is taken by the police then proper remedy is to file a complaint before the concerned 0903cwp269.10.odt 2/7 Magistrate. The Hon'ble Supreme Court has specifically observed that in such a case a writ petition is not to be entertained as there is a efficacious alternate remedy available of filing a complaint before the Magistrate. The Supreme Court disposed of the writ petition with the following direction. "If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed." In view of the decision of the Supreme Court, it is obvious that the remedy open to the petitioner is to file a complaint before the concerned Magistrate. 3. The learned counsel for the petitioner contended that even if there is an alternate efficacious remedy, a writ petition cannot be rejected on that ground as the fundamental rights of the petitioner have been violated. To support his contention, he placed reliance on the following decisions. 1) (2003)7 SCC 693 (Kanak (Smt.) and anr. ..vs.. U.P.Avas Evam Vikas Parishad and ors. 2) (2007)10 SCC 88 (M.P.State Agro Industries Development Corpn. Ltd. and anr. ..vs.. Jahan Khan) 3) (2010)1 SCC 126 (Satwati Deswal ..vs.. STate of Haryana and ors.) 0903cwp269.10.odt 3/7 4) (2007) 9 SCC 593 (Popcorn Entertainment and anr. ..vs.. City Industrial Development Corpn. and anr.) 5) (2003) 2 SCC 107 (Harbanslal Sahnia and anr. ..vs.. Indian Oil Corpn. Ltd. and ors.) 6) (1998)8 SCC 1 (Whirlpool Corporation ..vs.. Registrar of Trade Marks Mumbai and ors. 4. In Kanak (Supra) the Supreme Court was dealing with a matter under the Land Acquisition Act. In the context of the matter before it, the Supreme Court observed that as there was no statutory remedy of filing appeal, a writ petition would be maintainable. Such are not the facts in the present case. 5. The decisions in M. P. State Agro Industries Development and Satwati Deswal relate to service matters, more specifically departmental enquiries, hence, these decisions cannot be made applicable in the present case. 6. The decision in Popcorn Entertainment is under the Maharashtra Regional and Town Planning Act and it deals with allotment of flats/shops/plots etc. by development Authority/Housing Board. This decision will also not help the petitioner in any manner. 7. The point in issue in the case of Harbanslal (supra) was termination of dealership. We fail to see how this decision can be of any 0903cwp269.10.odt 4/7 aid to the petitioner. In the last decision in Whirlpool Corporation (supra) the Supreme Court was considering the jurisdiction of Registrar of Trade Marks, which is an entirely different issue than the one in the present case. Thus, we fail to see how these decisions can be made applicable in the present case. 8. The learned counsel for the petitioner again reiterated that in the decisions, in Whirlpool Corpn., Popcorn Entertainment and M.P.State Agro (Supra), the Supreme Court has held that even if there is an alternate efficacious remedy, writ jurisdiction cannot be excluded and alternate remedy would not operate as a bar in cases where there is violation of natural justice, where the proceedings or orders are without jurisdiction and where there is violation of fundamental rights. However, the learned counsel for the petitioner failed to show, how his case fell in any of these three categories. As stated earlier by us, none of these decisions are on the point of non-registration of FIR. Whereas in Aleque Padamsee (supra) the only question before the Supreme Court was whether a writ petition can be entertained against the police if they fail to register an F.I.R. This question was answered by the Supreme Court in the negative and the Supreme Court held that the remedy is to file a complaint before the concerned Magistrate; where the police do not register FIR. 0903cwp269.10.odt 5/7 RIDER ‘A’ 9. The Supreme Court in the case of Commissioner of Income Tax vs. Sun Engineering Works (P) Ltd., reported in (1992)4 SCC 363 has observed as under : “........It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete ‘law’ declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the question which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court to support their reasonings. In Madhav Rao Scindia vs. Union of India, this Court cautioned : “It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment”. In none of the above cases relied upon by the learned counsel for the petitioner the question arose for consideration in relation to non- registration of FIR, whereas, this question directly arose for consideration in Aleque Padamsee. Thus, in our view the decision in Aleque Padamsee is 0903cwp269.10.odt 6/7 squarely applicable to the present case. Hence, it would be open to the petitioner to adopt such a remedy. 10. The learned counsel then placed reliance on two orders dated 14/7/2008 and 16/9/2008 passed by the Supreme Court in W.P.(Cril.) No. 68 of 2008 in the case of Lalita Kumari ..vs.. Govt. of U.P. and ors. and stated that the very issue involved in the present matter is before the Supreme Court, and the matter has been referred to a larger bench, hence no order ought to be passed in the present case. 11. We have carefully perused both the orders. The issue in Lalita Kumari is whether the police authorities have an option of conducting an enquiry into a matter before registration of the F.I.R.; or they have to register an FIR straightway. Thus, the issue in that matter is whether a preliminary enquiry can be made before registration of FIR, which is not the issue involved in the present case. Hence, we fail to understand how these orders help the petitioner. We have already observed that it is open to the petitioner to approach the Magistrate. With these observations, the writ petition is rejected. JUDGE JUDGE chute 0903cwp269.10.odt 7/7