The Mahastra Shikshan Mandal High ... vs State Of Gujarat & 2

1. The petitioner is aggrieved by non­registration of the first information report on the basis of the complaint dated December 29, 2015 and January 01, 2016 given in writing by the petitioner to the respondent No.3 and respondent No.2 respectively. It is its say that though cognizable offence is made out, its complaint is not being registered as the first information report.

2. RULE. The formal service of notice of Rule is waived by Ms.Monali Bhatt, learned Additional Page 1 of 6 HC-NIC Page 1 of 6 Created On Wed May 04 04:29:44 IST 2016 R/SCR.A/2804/2016 ORDER Public Prosecutor on behalf of the respondents.

The Rule is fixed forthwith on consent.

3. Both the sides have been heard. This Court has also taken into consideration the judgment of the Apex Court in the case of Lalita Kumari v. State of Uttar Pradesh and others, reported in (2014) 2 SCC 1. It would be beneficial to regurgitate the relevant paragraph of the said decision, which reads as under :

Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed May 04 04:29:44 IST 2016 R/SCR.A/2804/2016 ORDER must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed May 04 04:29:44 IST 2016 R/SCR.A/2804/2016 ORDER

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed May 04 04:29:44 IST 2016 R/SCR.A/2804/2016 ORDER

4. Bearing in mind the aforementioned ratio laid down by the Apex Court, the respondent No.2 shall look into the matter and lodge the first information report if any cognizable offence is made out on the basis of the aforesaid complaints made by the petitioner; if not, for the limited purpose of knowing as to whether cognizable offence is revealed, the preliminary inquiry shall be conducted. The petitioner shall be forwarded a copy of the first information report, if any registered, at its registered address forthwith. In the event, the respondent No.2 choses not to lodge the first information report, the petitioner shall be communicated in writing the brief reasons accordingly. Such exercise shall be completed by the respondent No.2 at the earliest, but not later than one week from the date of receipt of a copy of this order. The entire exercise shall be done at the earliest without further loss of time.

The petition stands disposed of accordingly. Rule is made absolute accordingly.

Direct Service is permitted.

Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed May 04 04:29:44 IST 2016 R/SCR.A/2804/2016 ORDER (MS SONIA GOKANI, J.) Aakar Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed May 04 04:29:44 IST 2016