1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO. 61 OF 2010 Rajendra s/o Shankar Bagul ..PETITIONER VERSUS The State of Mah. & anr. ..RESPONDENTS Mr V.D. Sapkal, Advocate for the petitioner; Mr S.D. Kaldate, A.P.P. for respondents no.1 to 5; Smt. S.S. Jadhav, Advocate holding for Mr P.D. Bachate for intervenor. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 10th March, 2010 PER COURT : This is a petition under Article 226 of the Constitution of India by which the petitioner has prayed for quashing and setting aside a communication dated 14.1.2010 passed by the In-charge, Chalisgaon Police Station, District Jalgaon, keeping the complaint of the petitioner pending for inquiry. 2. It appears that the petitioner had filed a complaint before the Chalisgaon police station on 14.1.2010 complaining therein commission of cognizable offence by the accused named therein. By communication addressed to the petitioner dated 14.1.2010, the In-charge of the 2 Chalisgaon Police Station informed the petitioner that the complaint of the petitioner was kept pending in the light of a preliminary inquiry which was contemplated to be conducted. 2. The petitioner being thus aggrieved by the aforesaid order has filed the present petition in this Court seeking for quashing of the aforesaid order dated 14.1.2010 directing the holding of a preliminary inquiry. Mr V.D. Sapkal, learned Counsel for the petitioner states that the provisions of section 154 of the Code of Criminal Procedure do not contemplate nor is a police officer authorized to conduct a preliminary inquiry before registration of the offence. It is urged before us that the complaint of the petitioner discloses the commission of cognizable offence and the mandate of section 154 of the Code of Criminal Procedure required the complaint to be registered against the accused named therein. 3. On notice of this petition being issued to the respondents, respondents have filed their affidavit in reply. In the affidavit in reply at sub-paragraph 3 to paragraph 6 it is stated that a preliminary inquiry was held and the major allegations made by the petitioner and the co- complainants were found to be baseless and false. In respect of the other allegations in the complaint it was found that neither any school nor Education Department or the Provident Fund Department had complained therein. The grievance of the petitioner, therefore, is that an 3 offence ought to have been registered and the order dated 14.1.2010 directing the holding of the preliminary inquiry is per se illegal. 4. The Full Bench of this Court in its judgment in the matter of Sandeep Rammilan Shukla & ors. vs. State of Maharashtra & ors., 2008 (2) Bom.C.R. (Cri.) 799 has held that the police are empowered to conduct a preliminary inquiry. However, a rider is put that the preliminary inquiry should be conducted within two days. According to the learned Counsel for the petitioner, the affidavit in reply discloses that the inquiry was not conducted within two days. It appears that the ratio of the Full Bench cited supra, is not that the inquiry would stand vitiated in case the inquiry is not conducted within two days. In the present case after conducting the preliminary inquiry, the respondents have formed an opinion that no offence is disclosed. The order dated 14.1.2010, in the light of the fact that the preliminary inquiry has been conducted does not, according to us, survive for consideration in the present petition. Quashing of the aforesaid order would be an exercise in futility since the inquiry has already been conducted. In any event, the inquiry is not vitiated on account of the fact that the inquiry has been conducted beyond the period of two days as specified by the Full Bench judgment. 5. A writ of mandamus cannot be issued to the respondents - police officers to register an offence in the light of the judgment of the Supreme Court in Aleque Padamsee & ors. vs. Union of India & ors., (2007) 6 4 Supreme Court Cases 171 . The Supreme Court in no uncertain terms has held that in the event the police do not register an offence on the basis of the complaint, it was open to the aggrieved person to avail the remedy of filing a private complaint case. Similar view is expressed by the Supreme Court in Sakiri Vasu vs. State of U.P. & ors., AIR 2008 S.C. 907. In that light of the matter, therefore, according to us there is no merit in the petition and the petition deserves to be dismissed summarily. However, we clarify that the petitioner may avail the alternate remedy available to the petitioner in law of filing a private complaint case before a Magistrate of competent jurisdiction. Writ Petition is accordingly dismissed with no order as to costs. ( SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criwp61.10