AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.228 OF 2010 Smt. Gurmeet Kaur. ... Petitioner Vs. The State of Maharashtra & Ors. ... Respondents Mr. A.H. Ponda for the petitioner. Mr. S.S. Pednekar, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED : 10TH FEBRUARY, 2010. P.C.:- 1. In this petition filed under Articles 226 & 227 of the Constitution of India, the petitioner has prayed, inter alia, that action may be taken against respondent 6 for protecting the accused on 10/1/2010 and for violating the provisions of the Code of Criminal Procedure, 1973; that respondent 6 be directed to lodge FIR of the petitioner AJN 2 and that police protection be provided to the petitioner. 2. The petitioner resides at A-502/602, Poonam Jewel Cooperative Housing Society Limited, Poonam Nagar, Andheri (East), Mumbai. Respondent 3 is the Commissioner of Police, Mumbai and respondents 4 to 7 are officers of Mumbai Police. The petition centers around the alleged misconduct of police officers. 3. According to the petitioner, on 15/2/2007, some persons claiming to be connected with Suresh Shetty, Minister of Maharashtra Government prevented the petitioner and her brother from entering the Society. They were intoxicated. They made obscene remarks vis-a-vis the petitioner and when her brother objected, they assaulted him. The petitioner was also punched. She addressed a complaint to respondent 6 through her advocate's letter dated 10/6/2007 with medical papers and photographs. AJN 3 4. According to the petitioner, threats were issued to her by the police and the police refused to register the complaint against Vijay Kakade – the constable of respondent 6, who had issued the said threats. The petitioner addressed a complaint to respondent 3 about highhanded behaviour of Vijay Kakade. According to the petitioner, on 8/1/2009, the officers of respondent 6 recorded her statement, but no action was taken. According to the petitioner, the petitioner's brother vide application dated 11/2/2009 approached respondent 2 and brought the above facts to his notice. 5. It is the petitioner's case that on 10/1/2010 at about 7.00 p.m. when the petitioner was taking a walk, the residents of the Society where the petitioner stays came to her and started abusing and threatening her. They asked her to withdraw all complaints filed by her against the police. The men outraged her modesty. The petitioner, therefore, approached respondent 3 vide complaint dated 11/1/2010 and brought the above facts to AJN 4 his notice. 6. The grievance of the petitioner is that on 10/1/2010, the duty officer of respondent 6 did not take the complaint of the petitioner contrary to the provisions of law. The petitioner apprehends that she and her brother may be implicated in some false case and may be shot down in an encounter. 7. We have heard Mr. Ponda, learned counsel appearing for the petitioner at some length. He has reiterated the grievances made in the petition. Relying on the Full Bench judgment of this court in Sandeep Shukla v. State of Maharashtra, 2009 (1) Mh.L.J. 97, counsel submitted that if a complaint discloses cognizable offence, the law requires the officer in charge of a police station to register FIR. He submitted that in this case, the complaint lodged by the petitioner clearly discloses a cognizable offence yet, the police have not registered FIR. The police have therefore flouted the law. Counsel submitted that AJN 5 the miscreants tried to outrage the modesty of the petitioner. The petitioner has made out a case for police protection at her cost, but her prayer is ignored. Counsel submitted that, therefore, appropriate order needs to be passed. 8. In Sandeep Shukla, the Full Bench has laid down the following principles. “(a) The expression “shall” appearing in section 154 of the Code of Criminal Procedure is mandatory. The section places an ‘absolute duty’ on the part of the ‘officer-in-charge of a police station’ to record information and place substance thereof in the prescribed book, where the information supplied or brought to his notice shows commission of a cognizable offence. (b) As the law does not specifically prohibit conducting of a limited preliminary inquiry, pre-registration of FIR in exceptional and rare cases by the officer-in-charge of a police station, he may penultimately thus enter upon a preliminary inquiry in relation to information supplied of commission of a cognizable offence but only and only upon making due entry in the Daily Diary/Station Diary / Roznamachar AJN 6 instantaneously with reasons as well as the need for adopting such a course of action. Such inquiry should be completed expeditiously and in any case not later than two days. Thereafter, the FIR should be recorded in the prescribed register and/or the officer should take any other recourse permissible to him strictly in accordance with the provisions of the Code of Criminal Procedure under which he empowered to investigate. Such cases can be illustrated by giving an example i.e. when the information received in regard to commission of a cognizable offence would patently cause absurd results or report of happening of events, authenticity of which ex facie is extremely doubtful. (c) The law inescapably requires the police officer to register the information (FIR) received by him in relation to commission of a cognizable offence. Under the Scheme of the Code, no choice is vested in the police officer between recording or not recording the information received. The concerned officer would aptly take recourse to clause (a) as a normal rule while could adopt the course of action as stated in clause (b) above as an exceptional and rare case.” Needless to say that the above direction of the Full Bench will have to be followed by the investigating agency. AJN 7 9. We have granted the intervention application of Poonam Jewel Cooperative Housing Society Limited. We have heard learned counsel for the intervenor, who has stated that in fact the petitioner and her family members have indulged in terrorizing the Society and its members by filing false and fictitious complaints against the office bearers. Some instances are also narrated in which the petitioner’s brothers Manjeet Singh and Sukhbir Singh assaulted the members of the Society. 10. Learned A.P.P. on instructions from Mr. Dipak Bagwe, Police Inspector, M.I.D.C. Police Station, Andheri (E) Mumbai, states that the FIR of the petitioner as well as the FIR of the Secretary of the Society have been received by him. Learned A.P.P. further states that the police would take action on the FIRs in accordance with the Full Bench judgment in Sandeep Shukla. 11. We have not examined the merits of the case of the AJN 8 petitioner as well as the case of the Society and no inference should be drawn from the present order that the FIR is registered pursuant to any direction given by this court. Our order should not be used by either party to canvass the point that we have appreciated their case and directed registration of the FIR. The police will be free to take such steps as they may deem fit in the light of the Full Bench judgment referred to hereinabove and in accordance with the relevant Rules and Regulations. 12. So far as the prayer for police protection is concerned, we are informed that the Protection Branch Office of the police which is seized of the petitioner’s application for protection will take appropriate decision thereon. That application be considered within a period of one week from today. The order passed on the said application may be communicated to the petitioner. If the petitioner is aggrieved by the said order, the petitioner will be at liberty to challenge the same. Learned counsel for the petitioner submitted that an affidavit has been AJN 9 filed in this court on 9/2/2010 in which certain allegations are made against the petitioner. He submitted that the petitioner would like to controvert them. The petitioner can do so if she so desires. 13. Learned counsel for the petitioner further submitted that the petitioner also wants to controvert the averments of the intervention application made by the intervenor which has been served on her, today. Needless to say that the petitioner can controvert those averments also if she so desires. We again make it clear that we have not considered the merits of the averments made either in the petition or in the intervention application or the affidavit filed in this matter. 14. In view of the statement made by learned A.P.P., which we have recorded hereinabove, the petition is disposed of. [MRS. RANJANA DESAI, J.] [MRS. MRIDULA BHATKAR, J.]