AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2138 OF 2007 Haji Abdul Rauf s/o. Haji Shamshad Hussein. .... Petitioner Vs. The State of Maharashtra & Ors. .... Respondents Mr. A.M. Saraogi for the petitioner. Ms. Teja Katdare, A.P.P. for respondent 2. Mr. A.Y. Sakhare, senior advocate with Mr. S.M. Kazi for respondent 3. CORAM : SMT. RANJANA DESAI & DR. D.Y. CHANDRACHUD, JJ. DATE ON WHICH THE ORDER IS RESERVED : 13TH AUGUST, 2008. DATE ON WHICH THE ORDER IS PRONOUNCED : 28TH AUGUST, 2008. P.C.:- 1. The petitioner's case is that he has been carrying on business as Sole Proprietor of the firm “A-1 Pan Bidi Shop” from the premises situated at Shop No.5, Station Masjid, Bandra (West), AJN 2 Mumbai – 400 050 (for convenience, the said shop”). Respondent 1 is the State of Maharashtra. Respondent 2 is Municipal Corporation of Greater Bombay. Respondent 3 is the Sunnat Jamat-ul-Muslemeen Jadeeda (for convenience, “the said Trust”). 2. According to the petitioner, in Contempt Petition No.59 of 2005 in Suit No.1638 of 2005, Court Receiver has been appointed in respect of the said shop and the petitioner has been appointed as the agent of the Court Receiver. According to the petitioner, he has obtained necessary licence in respect of the said shop under the Bombay Shops and Establishment Act, 1948. A copy of the said licence is annexed to the petition. The petitioner has annexed to the petition, Electricity Bills in support of his contention that he has been carrying on business from the said shop. It is also the petitioner's case that the petitioner had filed RAD Suit No.285 of 2005 against the said Trust and its Trustees in the Court of Small Causes at Bombay. In that suit, certain interim orders were passed in his favour and on 7/7/2007, the said suit was decreed. The Small Causes Court declared the petitioner to be tenant of the said shop. The Small Causes Court restrained the said Trust from dispossessing him from the said shop without following due AJN 3 process of law. It is the petitioner's grievance that the officers of respondent 1 are colluding with the said Trust. According to the petitioner though he is in settled possession of the said shop and though an injunction order is operating against the said Trust, the said Trust has, in collusion with respondent 1, demolished the said shop and dispossessed him. Further case of the petitioner is that he approached the Bandra Police Station and complained about his dispossession. However, the officers of Bandra Police Station merely recorded an NC complaint. According to the petitioner, since cognizable offence was disclosed in his complaint, the police ought to have taken necessary steps and registered a cognizable offence against the culprits. On account of the alleged inaction of respondent 1 and collusion between the respondents, the petitioner has approached this court praying that a direction be given to a superior officer of respondent 1 to investigate the grievances of the petitioner as narrated in the petition and take appropriate action against all concerned officers of respondents 1 and 2 as also the Trustees of the said Trust as contemplated under the law. It is also prayed by the petitioner that respondent 2 be directed to forthwith demolish the illegal construction carried out by the said Trust at the place where the said shop was in existence and the petitioner be AJN 4 permitted to reconstruct the said shop. 3. We have heard, at some length, Mr. Saraogi, learned counsel appearing for the petitioner, Ms. Katdare, learned A.P.P. appearing for the State and Mr. Sakhare, learned senior counsel appearing for respondent 3. We have also perused the affidavits filed on behalf of the respondents. 4. Mr. Sakhare submitted that the petitioner's complaint has a civil profile and, therefore, respondent 1 could not have registered a cognizable offence. He drew our attention to certain documents which are annexed to the Affidavit of Shahnawaz Mansoori Ahmed Mansoori, a Trustee of the said Trust. Mr. Sakhare pointed out that under Agreement dated 29/3/2005, the petitioner was allotted a Stall on leave and licence basis. As stated in the said agreement, it was to remain in force for 33 months i.e. upto 7/2/2008. The said agreement clearly mentions that no right, title or interest of any nature is created in favour of the petitioner and that he would not claim tenancy. Mr. Sakhare pointed out that on 20/4/2005, the petitioner has addressed a letter to the Trustees of the said Trust informing them that he is ready to withdraw RAD Suit No.285 of AJN 5 2005. He has also given in writing that he was sorry that he has taken action against the Trustees of the said Trust; that the said shop belongs to the said Trust and that he has no claim whatsoever against it. Mr. Sakhare pointed out that on 28/4/2005, the petitioner has addressed another letter to the Trustees of the said Trust stating that Stall No.101 be allotted to him. Thereafter, the petitioner addressed letter dated 23/10/2007 to the Trustees stating that he was grateful to the Trustees because they allotted Stall No.101 to him. He has further stated that since he does not have men to look after Stall No.101, he was surrendering and vacating it and delivering vacant and peaceful possession thereof to the Trustees of the said Trust. He has further stated that he has removed all his articles and belongings from Stall No.101 and he has received his security deposit amount of Rs.25,000/- in cash and he has no claim of whatsoever nature against the Trustees of the said Trust. Mr. Sakhare submitted that in spite of this, the petitioner obtained ex-parte decree from the Small Causes Court by suppressing relevant and vital facts and, hence, no indulgence should be shown to him. Mr. Sakhare also pointed out that the petitioner has filed a suit under section 6 of the Specific Reliefs Act claiming reliefs against the respondents and the same is pending. AJN 6 Therefore, the petitioner is not entitled to any relief in this petition. Mr. Sakhare submitted that in any case, if the police have not taken any action on his complaint the appropriate remedy which is open to the petitioner is to approach the concerned Magistrate under section 190 read with section 200 of the Criminal Procedure Code (for short, “the Code”). It is not open for him to directly approach this court and invoke its writ jurisdiction. In this connection he relied on the judgments of the Supreme Court in Minu Kumari & Anr. v. State of Bihar & Ors., (2006) 4 SCC 359 and Devine Retreat Centre v. State of Kerala & Ors., (2008) 3 SCC 542. 5. Admittedly, the civil suit filed by the petitioner under section 6 of the Specific Reliefs Act is pending. We are sure that several disputed questions of fact which are involved in this case will be dealt with by the civil court. But the basic grievance of the petitioner is that the respondents have committed cognizable offence. They have colluded and illegally dispossessed him. According to the petitioner, his complaint has a criminal flavour also and, therefore, the police were duty bound to take cognizance of his complaint and start investigation. At this stage, we do not want AJN 7 to express any opinion on the merits of the case of either parties. However, in our opinion, if the police do not take any action on the petitioner's complaint, which according to him discloses cognizable offence, the petitioner is not remedy-less. It is open to the petitioner to approach the concerned Magistrate with his complaint. The petitioner can persuade the concerned Magistrate to enquire into the complaint as provided under Chapter XV of the Code. Since this remedy is available to the petitioner, the present petition is not maintainable. 6. In this connection, it would be appropriate to refer to the observations of the Supreme Court in Minu Kumari's case (supra), which read thus: “16. 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 AJN 8 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.) v. Union of India, (1996) 11 SCC 582. It was specifically observed that a writ petition in which cases is not to be entertained.” 7. After following the above judgment, similar view is taken by the Supreme Court in Divine Retreat Centre's case (supra). The Supreme Court reiterated that in such case a writ petition is not maintainable. 8. In view of the above, in our opinion, the present petition is not maintainable as alternate remedy is available to the petitioner. Mr. Saraogi, however, submitted that if the grievance of the petitioner is against the officers of Bandra Police Station, approaching the Magistrate will be a futile exercise because if the same Police Station is directed to conduct the investigation, there will be no impartial investigation. There is some substance in this AJN 9 submission. In the circumstances, while dismissing the petition as being not maintainable, we direct learned Magistrate to keep this grievance of the petitioner in mind while dealing with the complaint which the petitioner may file before him. If he decides to direct investigation, he may pass appropriate orders ensuring that investigation is conducted by an independent officer. We make it clear, however, that we have not expressed any opinion on the merits of the case nor have we directed the Magistrate to direct an investigation. It is entirely for learned Magistrate to pass such orders as he deems fit in accordance with law. With the above direction, the petition is dismissed. [SMT. RANJANA DESAI, J.] [DR. D.Y. CHANDRACHUD, J.]