1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.940 OF 2009 Shaikh Kalim s/o Shaikh Jalis and anr. ..Petitioners Versus The State of Maharashtra and ors. ..Respondents Mr.S.S.Kazi, Advocate for petitioners Mr.D.R.Kale, A.P.P. for respondents No.1, 4 and 5 Mr.K.C.Sant, Advocate for respondent No.6 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 31st AUGUST 2010 PER COURT : 1. This is a petition under Article 226 of the Constitution of India filed by the petitioners praying for the relief at prayer clause (B) for issuance of a writ of mandamus directing respondents 1 to 4 to take action against respondent No.6 for misusing the powers and also prays for issuance of a writ of mandamus directing the respondents to register an offence against respondent No.6 under Section 166, 167, 295-A, 298 and 330 of the Indian Penal Code and also for registration of an offence against respondent No.6 under the National Security Act. By virtue of prayer clause (G) to the above petition, the petitioner prays for issuance of a writ of mandamus directing that “an independent action be taken against respondent No.6 for violation of Articles 14, 15 and 25 of the Constitution of India.” 2 2. Facts in brief as are necessary for the decision of this petition may briefly be stated thus. It appears that in the Jama Masjid at Savda, people belonging to the Muslim community gather for Friday prayers. Certain persons belonging to the other communities had taken a Multipurpose Function Hall, constructed by the Savda Municipal Council, which was adjacent to the Jama Masjid, Savda for solemnisation of a marriage ceremony. Loud and blaring music was played on the D.J. (Digital Jumbo music system) on account of which disturbance was caused to the people belonging to the Muslim community while offering their Friday prayers in the Masjid. On account of the disturbances due to loud music being played on the D.J., the petitioners and others approached the Municipal Council, Savda with a request to the Officers to ensure that henceforth such nuisance is not caused at the time of offering of the prayers. The Police also approached the Municipal Council, Savda and respondent No.6 called responsible persons from the Municipal Council to the Police Station, Savda. According to the petitioners, about 28 to 30 persons attended the Police Station, Savda. Only about 5 to 10 persons were allowed to enter the cabin of respondent No.6. It is alleged by the petitioners that respondent No.6 commenced scolding and abrading the persons, who had attended the meeting in response to the invitation of respondent No.6 and used certain utterances, which were derogatory to the office, which was held by respondent No.6 and also offended the sentiments of the 3 persons, who had attended the said meeting. According to the petitioners, the events of entire meeting were recorded on the mobile phone and accordingly, recording was prescribed on a compact disk and such disk has been produced before us. According to the petitioners, certain persons including the petitioners lodged a complaint to the Superintendent of Police, Jalgaon with copies to the Chief Minister, Home Minister, Inspector General of Police and others. Since no action has been taken against respondent No.6, the present petition has been filed. The petitioners allege that certain vindictive action has been initiated by respondent no.6, to which presently it is not necessary to advert to in the light of the prayers made in the petition. 3. Mr.S.S.Kazi, learned Counsel for the petitioners has urged before us that a writ of mandamus be issued directing the respondents 1 to 4 to initiate departmental action against respondent No.6 and also to direct the registration of the offence on the basis of the complaint of the petitioners. It is also prayed that some deterrent action be taken against respondent No.6 to ensure that such incidents do not recur again in future. The learned Assistant Public Prosecutor has stated before us that on receipt of the said complaint, the Sub Divisional Police Officer of Muktainagar conducted an independent inquiry and on 4.7.2009 submitted his report pointing out that the allegations levelled were false and that no offence was committed. The learned Assistant Public Prosecutor further urged before us that the Additional Superintendent of Police, Jalgaon had also 4 conducted an inquiry and had reached to the same conclusion. Mr.K.C.Sant, learned Counsel on behalf of respondent No.6 has urged before us that the respondent No.6 has denied the utterances alleged to have been uttered by him in the presence of the petitioners. It is also urged before us by the learned Counsel on behalf of respondent No.6 that the petitioners have an alternate efficacious remedy of filing a private complaint case before the Magistrate and the prayer made by the petitioners is not sustainable. It is also urged before us that no demand has been made in respect of institution of an inquiry against respondent No.6. 4. In respect of the first part of prayer made at prayer clause (B) to the petition, i.e. of issuance of a writ of mandamus to direct respondents 1 to 4 to take action against respondent No.6, according to us the aforesaid relief is not maintainable for various reasons. The first reason is that before a party seeking issuance of a writ of mandamus, a demand ought to have been made and that demand ought to be refused by the authorities. In the present case, on a query being made to the learned Counsel for the petitioners, the learned Counsel for the petitioners candidly admitted that no demand in this behalf had been made by the petitioners. In any event, the aforesaid relief is subject to the decision, if any in respect of the offence alleged to have been committed. Since no demand has been made before the respondents and the averments in the petition, particularly regarding the utterances, are disputed questions of 5 facts, this Court cannot record a finding as to whether the respondent No. 6 has indeed uttered those words and had committed an offence entailing the initiation of certain departmental proceedings. It is, no doubt, true that the petitioners have filed the compact disk. The respondents in their affidavit in reply have denied to have uttered the words attributed to respondent No.6. In any event, the recording in the compact disk is required to be proved independently. 5. In respect of other part of prayer made at prayer clause (B) to the petition, it would be useful to refer to the judgments cited on behalf of the petitioners. Mr.S.S.Kazi has placed reliance on the judgment of the Division Bench of this Court in Sudhir M.Vora v. Commissioner of Police for Greater Bombay and others, 2004 CRI.L.J.2278. Reliance is subsequently placed on the observations of the Court, recorded at paragraph 15 of the said judgment. In the aforesaid case, the Division Bench found that since serious allegations were made against the Police Officers, an independent Officer ought to have been entrusted with the inquiry and accordingly, the Division Bench directed the respondents to register an offence in the register meant for registration of the first information reports and to proceed with the investigation. The facts alleged in the present case being different, the ratio laid down in the aforesaid judgment is inapplicable to the facts of the present case. Further reliance is placed by the learned Counsel for the petitioners on the judgment of Supreme Court in Babubhai Jamnadas Patel Vs. State 6 of Gujarat and ors., 2009 (9) SCC 610. In the aforesaid judgment the challenge was to the judgment of the High Court directing the Assistant Commissioner of Police, “C” Division, Ahmedabad City to file progress report undertaken in the first information report dated 24.12.2008. The High Court had further directed that in the event the final report was ready, the same ought not to be submitted without prior intimation to the Court. Based on the aforesaid challenge, the Supreme Court at paragraph 40 held that “in appropriate cases, the Courts may monitor an investigation into an offence when it is satisfied that either the investigation is not being proceeded with or is being influenced by interested persons.” 6. Mr.Kazi, learned Counsel for the petitioners has further placed reliance on the Division Bench judgment of this Court dated 18.12.2008 in Criminal Writ Petition No.1437 of 2007, Farook Mohammed Kasim Mapkar Vs. The Commissioner of Police for Greater Mumbai and Ors. In the said judgment, it appears that on being satisfied, the Division Bench directed that papers of investigation be handed over to the CBI and also directed the CBI to register an offence and to investigate the same. The Court further directed that the CBI should not be influenced by the observations made in the said judgment or in the report of the Shrikrishna Commission. The facts in the said judgment being altogether different from the facts and the relief prayed for in the present petition, the ratio laid down is not applicable to the facts of the present case. 7 7. At this juncture, it would be useful to refer to the judgment of Supreme Court in Aleque Padamsee Vs. Union of India, (2007) 6 SCC 171. The Supreme Court in this judgment held at paragraph 7 that, “the correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to their notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code.” The Supreme Court at paragraph 8 while disposing of the aforesaid petition, issued directions, which we reproduce below : “(1) 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; (2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.” 8. A reference may also be made to the judgment of the Supreme Court in Sakiri Vasu vs. State of U.P., AIR 2008 Supreme Court 907. The Supreme Court in the said judgment has held that an alternate remedy was available to the complainant in respect of non registration of 8 the FIR by the Police. The Supreme Court further directed that the aggrieved person can approach the Superintendent of Police under Section 154 (3) of the Cr.P.C. by an application in writing or can file an application before the Magistrate under Section 156 (3) of the Cr.P.C.” 9. Relying on the aforesaid judgment, therefore, according to us, the reliefs prayed for by the petitioners cannot be granted. The petitioners have alternate efficacious remedies available to them in law, which the petitioners may resort to, if advised. Writ Petition is accordingly dismissed with no orders as to costs. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/940.2009criwp)