Case Note & Summary
The petitioner, Narendra Nagindas Rathod, filed a Criminal Writ Petition under Article 226 of the Constitution of India before the Bombay High Court seeking a writ of mandamus directing the third respondent (police) to register a First Information Report (FIR) based on his complaint dated 1st October 2009. The complaint alleged that Shri Ramesh S. Thakkar and Mrs. Chherra R. Thakkar had misappropriated a sum of Rs. 2,49,52,193/- belonging to the petitioner's parents. The petitioner claimed that his parents had executed a power of attorney in favor of Ramesh Thakkar, but the authority did not extend to withdrawing amounts from bank accounts. The petitioner was abroad during the period of withdrawals and only discovered the misappropriation upon his return. The police, after conducting an inquiry, communicated to the petitioner by letter dated 10th August 2012 that the dispute was of a civil nature and advised him to seek relief from the appropriate civil court. The petitioner argued that Section 154 of the Code of Criminal Procedure, 1973 (CrPC) is mandatory and once information of a cognizable offence is received, the police must register an FIR. He relied on a Full Bench decision of the Bombay High Court. The court, however, noted that the police had already conducted an inquiry and formed an opinion that the dispute was civil. The court held that in such circumstances, a writ of mandamus cannot be issued to compel registration of an FIR. The court observed that the petitioner's remedy lies in approaching the Magistrate under Section 156(3) CrPC or filing a private complaint. The petition was dismissed as devoid of merit.
Headnote
A) Criminal Procedure Code - Registration of FIR - Section 154 CrPC - Mandamus - The petitioner sought a writ of mandamus to compel the police to register an FIR alleging misappropriation of funds by a power of attorney holder. The police, after inquiry, opined that the dispute was civil. The court held that when the police, after preliminary inquiry, conclude that the dispute is civil, a writ of mandamus cannot be issued to compel registration of FIR. The remedy lies in approaching the Magistrate under Section 156(3) CrPC or filing a private complaint. (Paras 1-5)
Issue of Consideration
Whether a writ of mandamus can be issued directing the police to register an FIR under Section 154 of the Code of Criminal Procedure, 1973, when the dispute is essentially of a civil nature.
Final Decision
The petition was dismissed as devoid of merit. The court held that when the police, after conducting an inquiry, form an opinion that the dispute is civil, a writ of mandamus cannot be issued to compel registration of an FIR. The petitioner's remedy lies in approaching the Magistrate under Section 156(3) CrPC or filing a private complaint.
Law Points
- Mandamus
- Registration of FIR
- Section 154 CrPC
- Cognizable Offence
- Civil Dispute
Case Details
2012 LawText (BOM) (10) 108
Criminal Writ Petition No. 3337 of 2012
A.S. Oka, Smt. S.S. Jadhav
Mr. Prakash Naik i/b. Mr. Arun Nimbalkar for the Petitioner, Mrs. M. H. Mhatre, A.P.P for Respondent – State
The State of Maharashtra, Mantralaya, Mumbai & Ors.
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Nature of Litigation
Criminal Writ Petition under Article 226 of the Constitution of India seeking a writ of mandamus to direct police to register an FIR.
Remedy Sought
Petitioner sought a writ of mandamus directing the third respondent to register an FIR and record his statement and other bank account holders, and to investigate and file charge sheet based on his complaint dated 1st October 2009.
Filing Reason
The police refused to register an FIR on the petitioner's complaint alleging misappropriation of Rs. 2,49,52,193/- by a power of attorney holder, stating the dispute was civil.
Previous Decisions
The Senior Inspector of Police, Gamdevi Police Station, by letter dated 10th August 2012, informed the petitioner that after inquiry, the dispute was of civil nature and advised him to seek relief from appropriate court.
Issues
Whether a writ of mandamus can be issued to compel the police to register an FIR under Section 154 CrPC when the police have concluded after inquiry that the dispute is civil.
Submissions/Arguments
Petitioner argued that Section 154 CrPC is mandatory and once information of a cognizable offence is received, the police must register an FIR and investigate. He relied on a Full Bench decision of this Court.
Petitioner contended that the power of attorney did not authorize withdrawal of amounts from bank accounts, and the accused misappropriated funds.
Ratio Decidendi
A writ of mandamus cannot be issued to compel registration of an FIR under Section 154 CrPC when the police, after preliminary inquiry, conclude that the dispute is of a civil nature. The remedy for the complainant is to approach the Magistrate under Section 156(3) CrPC or file a private complaint.
Judgment Excerpts
The prayer in this Petition under Article 226 of the Constitution of India is for issuing a writ of mandamus directing the third Respondent to register the First Information Report (FIR) and record the statement of the Petitioner and other Bank account holders.
We may state here that there is a communication on record addressed to the Petitioner dated 10th August, 2012, by the Senior Inspector of Police, Gamdevi Police Station, in which it is stated that an enquiry on Application/Complaint of the Petitioner has been made as regards allegations made therein that Shri Ramesh S. Thakkar and Mrs. Chherra R. Thakkar had misappropriated a sum of Rs.2,49,52,193/ held by the parents of the Petitioner.
He submitted that the provisions thereof are mandatory and once information of commission of cognizable office is received by the officer incharge of a Police station, he is under an obligation to register the offence and make investigation.
In the present case, the police have already made an enquiry and have formed an opinion that the dispute is of civil nature. Therefore, no case for issuance of writ of mandamus is made out.
If the Petitioner is so advised, he may approach the learned Magistrate under Section 156(3) of the said Code of 1973 or file a private complaint.
Procedural History
The petitioner filed a complaint on 1st October 2009. The police conducted an inquiry and by letter dated 10th August 2012 informed the petitioner that the dispute was civil. The petitioner then filed Criminal Writ Petition No. 3337 of 2012 under Article 226 of the Constitution before the Bombay High Court seeking a writ of mandamus to register an FIR. The petition was heard and dismissed on 5th October 2012.
Acts & Sections
- Code of Criminal Procedure, 1973: 154, 156(3)
- Constitution of India: 226
