Mrs. Charu Kishore Mehta and etc. vs. State of Maharashtra and Anr., 2011 Cri LJ 1486

Relevance-

In Cognizable cases, FIR is must but if the FIR or a complaint is not written by any police officer so the aggrieved may reached to the magistrate, especially in cognizable cases.

Facts-

• The petitioner by communication dated 25^th April , 2008 addressed to the Additional Commissioner, Economic offences Wing, Crime Branch CID, made accusations that Shri Vijay Kirtilal Mehta , in pursuance of criminal conspiracy along with Dr. Narendra Trivedi and  others forged or caused to be forged various documents including alleged agreements of assignments use the same as genuine knowing fully well that the same are fake documents and cheated the Public Charitable Trust of Leelavati Hospital and Research Centre to an extent of Rs.13.67 Crores.
• Thus, Offence of Criminal Breach of Trust in pursuance of Criminal Conspiracy was alleged and even other doctors are still in working.
• Shri Dushyant Madhukant Mehta, though unqualified chemist is managing the medical supplies of the Lilavati Hospital and records would show that the entire management has been abdicated in favour of the said unqualified chemist by the senior officials. Shri Dushyant Madhukant Mehta, though unqualified chemist is managing the medical supplies of the Lilavati Hospital and records would show that the entire management has been abdicated in favour of the said unqualified chemist by the senior officials.
• Hospital Trust resulting in huge loss to the State aided Public Charitable Trust. It is further contention of the petitioner that Shri Sharan P. Khanna who is Chief promoter of the Golden sea shell Co-operative Housing society Ltd., having his office at 309, Dalamal Tower, Nariman Point, Mumbai-21 (hereinafter referred to as ‘Golden’) and Shri Jagdish B Ahuja, proprietor of Ahuja platinum Properties, Bandra( hereinafter referred to as ‘Ahuja’) have together with dubious deals with Vijay K. Mehta made the Trust poorer by crores of Rupees, in pursuance of their criminal conspiracy, dishonestly forged and fabricated documents including the alleged Deed of Assignment/Transfer, using the same as genuine knowing fully well that the same were fake /forged documents causing loss to the Trust to the tune of Rs. 13.67. Crores for the sake of personal gains. 
• The grievance of the petitioner is as detailed that that during the period between February 2005 to June 2005 Shri Vijay Kirtilal Mehta in criminal conspiracy with others committed various criminal acts of criminal breach of trust and severely impaired the financial position of the Trust by siphoning away Rs 13.67 crores approximately through dubious, illegal, and untenable transactions for personal expenses and gains.
• According to the petitioner, despite the detailed communication sent by the petitioner, the police inaction was unjust by not registering the FIR and a criminal case and by not making thorough investigation in to the accusations.
• Then the petitioner filed mandamus as Writ Petition in the High Court in relation to the not lodging of FIR.

Issues-

• Whether in the absence of a complainant to the police, a complaint can be made directly before a magistrate?
• Whether without filing the complaint within the meaning of Section 2(d) and praying only for an action under section 156(3), a complaint before a magistrate was maintainable?

Petitioner Arguments-

It is contention of the petitioner that Shri Vijay Kirtilal Mehta was Trustee in charge and control of the affairs of Lilavati Hospital and Medical research Centre during the period between February, 2005 to June, 2005, He was dismissed by the Joint Charity Commissioner on the ground of his misdeeds of Criminal Misappropriation of property.

Respondent Arguments

• The petition was opposed by the Maharashtra State and the second respondent Additional Commissioner of Police, Economic Offences wing Mumbai. Other Interveners Dr Narendra Trivedi and 7 others also by filing application sought relief in the writ petition.
• The contentions were that the dispute was going between the petitioner and the Trustee Vijay Mehta in connection with the trust of Lilavati Hospital and it is necessary to know whether the complaint is having cognizable nature or not.
• Thus it was decided to conduct preliminary inquiry in to the matter. The Police authority to whom the complaint- application was addressed felt that the issue as to whether the Trustees have right to make the transactions as alleged was found a question pertaining to jurisdiction of the Charity Commissioner, Worli, at Mumbai.

Judgement –

1. Generally to take help of the magistrate the complainant has to go through the Sec.154 of Cr.P.C and then the magistrate take power under the Section 190 of Cr.P.C. But there could be some cases where police fails to act instantly and there is any possibility of destroying any evidence. So, the applicant could approach to the magistrate.

2. A petition under section 156(3) cannot be strictly construed as a complaint in terms of section 2(d) of the Code in so far as it states facts constituting ingredients of a cognizable offence. Such Petition is maintainable before the Magistrate.

3. Writ petition was allowed by High Court and rules is made accordingly.

Ratio Decidendi of the Court

The rationale of the Code of criminal Procedure indicates that to set the machinery of criminal justice system, the procedure starts with FIR. Section 154 of Crpc  is mandatory and the concerned officer who is the incharge of the police station is bound to register the case on the basis of such information if it any case deals with cognizable offence. 

Conclusion-

In Lalita Kumari case, it was held that it is mandatory for the police officer to lodge FIR in any circumstances. As it is not absolute evidence but it is the first point of information and it is necessary to record in the cognizable cases. Some strict actions should be followed by the police officers to abide by the directions given by Supreme Court.

Reference –

1. Indian Kanoon , Last seen on 18^th April,2023
2. vLex India , Last seen on 17^th April, 2023

This article is written by Harshita Sharma of Barkatullah University, an intern under Legal Vidhiya