106wp222.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition No.222 of 2011 (Mohammad Salem Mohd. Sultan vs. State and Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: MRS. V.K.TAHILRAMANI & M.L.TAHALIYANI, JJ. Date : 10/06/2011. Criminal Application No.66 of 2011 Heard Mr.P.N.Kendurkar, Adv. for the petitioner and Mrs.B.P.Maldhure, A.P.P. for respondents 1 to 4. Perused the affidavit filed by Pratap Padamshi Dharamshi, ACP, Police Station, Sitabuldi, Nagpur on behalf of respondent no.3 Assistant Commissioner of Police, Sitabuldi Division, Nagpur and respondent no.4/Station House Officer, Police Station, Sitabuldi, Nagpur. In para no.4 of the said affidavit, the third sentence reads thus : “...... The statement further reveals that the petitioner was doing business from the said shop since 2/3 months.” 106wp222.11.odt 2 This application has been filed stating that the said sentence should read as under : “.......The statement further reveals that the petitioner was not doing business from the said shop since 2/3 months. “ It is submitted that there was typographical mistake and the word “not” remained to be typed. Hence, it is prayed that amendment be allowed to add the word “not” in the third sentence of para 4 of the said affidavit. The learned Counsel for the petitioner has vehemently objected to the amendment. He submitted that the original sentence in para 4 reveals the correct facts. However, on going through the entire affidavit as well as the papers relating to investigation in this case, the true state of affairs does appear to be that the statement of witnesses reveals that the petitioner was not doing business from the said shop since the last 2/3 months. In this view of the matter, the application is allowed. 106wp222.11.odt 3 CRIMINAL WRIT PETITION NO.222 OF 2011 Heard Mr.P.N.Kendurkar, Adv. for the petitioner and Mrs.B.P.Maldhure, A.P.P. for respondents 1 to 4. Learned Counsel for the petitioner stated that the petitioner had taken shop on leave and license from respondents 6 and 7. They broke open the shop and committed theft of the articles in the shop and put their own lock to the door of the shop. The petitioner approached the Police Station in order to lodge his First Information Report. His grievance is that the First Information Report came to be registered only under Sections 427 and 448 r/w. Section 34 of the Indian Penal Code and F.I.R. for the offence punishable under Section 379 of the Indian Penal Code was not registered. He submitted that there were certain articles in the shop which were stolen after the shop was broken open. The learned A.P.P., on instructions, stated that detailed investigation has been conducted, which shows that, in fact, the petitioner had taken away all the materials in the shop and there was nothing in the shop at the time it was 106wp222.11.odt 4 broken open. She submitted that, in the circumstances, the charge-sheet came to be filed under Sections 341 and 427 read with Section 34 of the Indian Penal Code. Learned Counsel for the petitioner stated that his grievance that the F.I.R. was not registered for the offence u/s. 379 of the Indian Penal Code remains and the Police ought to have registered the F.I.R. u/s. 379 of the Indian Penal Code. In Aleque Padamsee and Ors. vs. Union of India and Ors. reported in 2007 (6) SCC 171, the Supreme Court has held that if information is given to the police regarding commission of cognizable offence and no action is taken by the police, then the proper remedy is to file a complaint before the concerned 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 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 106wp222.11.odt 5 read with Section 200 of the Code are to be adopted and observed. “ In the present case, the grievance of the petitioner is regarding the inaction on the part of the Police Officer in registering the F.I.R. u/s. 379 of the Indian Penal Code. In our view, the decision in the case of Aleque Padamsee and Ors. (cited supra) is applicable to the present case. Hence, it would be open to the petitioner to adopt such a remedy. The petition is disposed of in the above terms. JUDGE JUDGE jais