Shiv Lal vs Union Territory Chandigarh

S.S. Sudhalkar, J.

In this writ petition, the prayer of the petitioner is to direct respondents 1 to 3 to lodge FIR against respondent No. 4 and that investigation of the said FIR be handed over to an official not below the rank of Superintendent of Police.

The petitioner contends that he let Shiv Oil and General Mills, Chandigarh to respondent No. 4 through a Licence Agreement. The monthly rent was Rs. 23,000/ inclusive of installed machinery. The price of the machinery was Rs. 5 lacs, which has now gone upto more than Rs. 25 lacs. Respondent No. 4 did not pay the rent and other dues such as electricity and water charges etc. and, therefore, the petitioner had filed an ejectment application before the Court of Rent Controller, Chandigarh. Respondent No. 4 wants to disappear from the scene without paying any penny and, therefore, respondent No. 4 got the machinery parts removed and was in the process of selling the same as scrap. The petitioner immediately rang up the police control room. The police party was deputed and they reached the factory premises. At that time, a threewheeler tempo was leaving the factory premises loaded with several machinery parts. The police party chased the tempo and brought it back to the factory premises where machinery parts were unloaded.

It is further contended that on 4.9.1996, the petitioner went to Police Station, Industrial Area, PhaseI, Chandigarh, DDR No. 16 was recorded to this effect. Upon the confession of respondent No. 4 and the tempo driver, the police party raided the premises of one Kabaria, namely, Mittal Kabaria in the Kabari market and recovered several stolen articles. The petitioner, therefore, approached respondents 2 and 3 and requested them to lodge FIR but they unnecessarily harassed the petitioner by making him visit them repeatedly. Therefore, the petitioner sent a written request to the Inspector General of Police, Chandigarh on 24.9.1996, which is produced at Annexure P2 in this case. However, the police has not taken any action and hence this writ petition has been filed.

Respondent No. 3 has filed the written statement. He has stated that the case is of a civil nature and no offence was found to have been made out. Respondent No. 4 contends that he is not in possession of the factory because of dissolution of partnership and he is not liable for any machinery and he has denied the contentions made in the petition.

The crucial question is whether the petitioner has shown that he has lodged the report showing cognizable offence before the police or not. The contention of respondent No. 3 is that the case was investigated and no offence was made out, cannot be accepted in view that fact that if a complaint showing a cognizable offence is lodged, as per the decision of the Supreme Court in the case of State of Haryana and othere v. Ch. Bhajan Lal and others, AIR 1992 SC 604 the police has no alternative but to register an FIR After registration of the FIR, the police can carry out the investigation and can deal with the facts of the case as they appear during the investigation.

However, in the present case, the petitioner contends that DDR No. 16 was recorded on 4.9.1996. The said DDR is not on record. The petitioner has neither produced copy of the same nor has he called for the production of the same. What is on record is complaint to the SHO dated 23.9.1996, produced along with Annexure P2. In the complaint, there is an allegation of theft and selling/disposing of the stolen property. The allegations are vague. Moreover, certain dates will be very material. They are as under:

(i) Date of alleged incident 3.9.1996

(ii) Date of Annexure P2 23.9.1996

(iii) Date of this petition 28.9.1996

Therefore, it is very clear that immediately after sending a written request, Annexure P2 dated 23.9.1996 (petitioner states that he sent it on 24.9.1996), this writ petition has been filed. No, reason is shown as to why DDR recorded on 4.9.96 has been kept back. Two inferences can be drawn : (1) that it may not disclose a cognizable offence, or (2) the facts stated in it may be different. Whatever may be the reason, that would have been the report first in point of time to the police which, if it disclosed a cognizable offence, could have been made the basis of FIR. In view of above facts, this writ petition cannot be said to be wellfounded as no FIR can be registered on a subsequent complaint if the first complaint discloses a cognizable offence. Moreover, when the DDR of 4.9.1996 is not on record, no FIR can be ordered to be registered on the same.

In view of the above facts, this writ petition deserves to be dismissed. It is, therefore, dismissed.