1. The present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner-original complainant for an appropriate writ, order or direction directing respondent no. 2-District Superintendent of Police, Surendranagar to register the FIR and investigate the Complaint dated 26/09/2006 received dated 28/09/2006 and to take appropriate legal action against the erring police personnel in accordance with law including initiation of appropriate departmental proceedings against the erring police personnel.
2. It is the case on behalf of the petitioner that two bogus and fabricated criminal cases for the offences punishable under Sections 504, 506(2) and 114 of the Indian Penal Code were registered against the petitioner on 28/08/2006 and 15/09/2006, being C.R. No. II 3050/2006 and C.R. No. II 3056/2006 before Muli Poilce Station. It is the case on behalf of the petitioner that in connection with the aforesaid FIRs, P.S.I., Shri S.G. Rana of Muli Police Station visited the house of the petitioner on 22/09/2006 and assaulted the petitioner and the wife of the petitioner. It is the case on behalf of the petitioner that alongwith the said PSI other two to three Police personnels were also there and they all entered the house of the petitioner at about 10:00 a.m. in the morning. They searched the house of the petitioner and ransacked the entire house without any legal search warrant from the competent criminal Court. It is the case on behalf of the petitioner that the P.S.I. and the other police personnels during the search of the house took away an amount Rs. 25,000/- lying in the tin bag of the petitioner. The petitioner was thereafter produced before the Syla Court, Surendranagar District and also before the executing Magistrate at Muli. Now, it is the case on behalf of the petitioner that the petitioner could not open his mouth as he was apprehending that if something is said against the Police Officers he will not be released. It is the case on behalf of the petitioner that thereafter the petitioner had given the written Complaint to the D.S.P., Surendranagar dated 26/09/2006 alleging the offence against the PSI and the police personnels. The petitioner also approached the higher Police Officer alleging his grievance. However, all the higher Officers refused to register the FIR and/or to take any action against the concerned PSI and other Police Officers and, therefore, the petitioner has preferred the present Special Criminal Application for the aforesaid relief.
3. Shri Chauhan, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Ramesh Kumari Vs. State (NCT of Delhi) and Ors. reported in (2006) 2 SCC 677 in support of his prayer to direct the concerned Police Officer to register the Complaint filed by him as FIR.
4. Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State has relied upon the decision of the Hon'ble Supreme Court in the case of Aleque Padamsee & Ors. Vs. Union of India & Ors reported in 2007 (6) SCC 171, in the case of Gangadhar Janardan Mhatre Vs. State of Maharashtra & Ors reported in 2004 (7) SCC 768 and the decision of this Court in the case of Kanubhai Shamajibhai Dayani & Anr. Vs. State of Gujarat reported in 2007 (3) GLR 2684 and has submitted that such a relief of lodging the Compliant as FIR cannot be passed against Article 226 of the Constitution of India when the petitioner has an efficacious remedy available under the Code of Criminal Procedure under Section 190 of the Code of Criminal Procedure.
5. Heard the learned advocates appearing on behalf of the respective parties at length. The prayer of the petitioner in the present petition is to direct respondent no. 2 to register the Complaint dated 26/09/2006 as FIR. In the case of Aleque Padamsee & Ors. (Supra) and Gangadhar Janardan Mhatre (Supra) of the Hon'ble Supreme Court and in the case of Kanubhai Shamajibhai Dayani & Anr. (Supra), this Court has held and observed that such a relief directing the Police to register the FIR may not be granted in a petition under Article 226 of the Constitution of India as the appropriate efficacious remedy available to the petitioner would be either to file an appropriate Complaint under Section 190 of the Code of Criminal Procedure and/or to approach the DSP to exercise the powers under Section 154(3) of the Code of Criminal Procedure.
6. Under the circumstances, considering the aforesaid decision of the Hon'ble Supreme Court as well as this Court, respondent no. 2 is hereby directed to look into the Complaint filed by the petitioner dated 26/09/2006 in exercise of the powers under Section 154(3) of the Code of Criminal Procedure and to look into the same and issue appropriate direction directing the concerned Officer of the Police Station to register the Complaint as FIR. The aforesaid exercise shall be completed within three months from the date of issuance of the present order. Any decision by respondent no. 2-D.S.P. be communicated to the petitioner within a period of two weeks thereafter. If, while exercising the powers under Section 154(3) of the Code of Criminal Procedure, the DSP instructs or directs to register the same, the same be done in accordance with law and on its own merits, without, in any way, being influenced by the fact that the allegations are against the Police Officers. If after the inquiry, the DSP takes decision not to register the Complaint as FIR, the petitioner be communicated the same within a period of two weeks as stated hereinabove. It will be open for the petitioner to file an appropriate Complaint under Section 190 of the Code of Criminal Procedure before the concerned Magistrate, which shall be considered by the learned Magistrate in accordance with law and on its own merits.
6. With this, the present petition is disposed of.
Direct service is permitted.
(M.R. SHAH, J.) siji