Syed Mohammed Khundmiri v. Union Of India

HON'BLE SRI JUSTICE C. PRAVEEN KUMAR WRIT PETITION No. 20490 of 2017 ORDER:

1) The present writ petition is filed with the following prayer" " seeking issuance of writ of mandamus declaring the action of 2nd and 3rd respondent in not disposing of the petitioner's representation dated 31.01.2017 as illegal, arbitrary and unconstitutional; and consequently direct the 2nd and 3rd respondents to dispose of the petitioner's representation dated 31.01.2017 forth." 2) The petitioner herein claims himself to be a life member of Markazi Anjuman-e-Mahdavia Society, Chanchalguda, Hyderabad (hereinafter referred to as " the Society" ), which is a charitable Society registered under the Societies Act. One of the members of the Society by name Rais Ahmed Qureshi migrated to London and acquired properties in London. He is said to have executed a Will on 21.07.

1998, through his solicitor stationed in London, under which the un-official respondents were appointed as Trustees of the said immovable property. As per the said Will, the trustees have to open a current account in a bank in their names during the period of winding up of the Estate. The testator of the Will is said to have earmarked 10% share to the fifth respondent, 5% share to the 6th respondent, 5% share to the 7th respondent and 80% to the Society. The testator of the Will died on 01.01.2001. Thereafter the probate of the WILL is granted and registered on 18.05.

probate initiated before the District Probate Registry, Ipswhich. It is said that the un-official respondents sold out the property for a huge sum without informing the Society and not depositing any amount with the Society, which is a beneficiary under the Will. The said fact came to the knowledge of the Society in the year 2007 through a friend of the testator of the Will. The Society gave power of attorney to respondent Nos.7 and 8 to deal with the matter. The averments in the affidavit further show that respondent Nos.7 and 8 conspired together, entered into a Court Settlement in case No.782 and Claim No.HC10C01840 before the High Court of London, Chancery Division and cheated the Society. It is said that the 1st respondent herein is having extra territorial jurisdiction to prosecute the offenders by invoking Section 4 of the I.P.C. apart from granting sanction to prosecute under Section 188 of Cr.P.C. The inaction of respondent Nos.2 and 3 in taking any action against the un-official respondents lead to filing of the present writ petition.

3) From the averments made in the affidavit, it is clear that the petitioner herein, who is a retired employee and is a member of the Society situated at Chanchalguda, Hyderabad, made a representation. Be that as it may, the execution of the Will and the alleged fraud is said to have taken place in London, United Kingdom. The representation, dated 31.01.2017 which is now sought to be considered, was made to the High Commission of India, India House, London. Admittedly, the authority, to whom, the representation was said to have been sent through post, is

stationed in London. Even assuming for the sake of argument that the said representation was made, this Court cannot give a direction to an Authority stationed at London to initiate criminal proceedings against the offenders, who cheated the Society. It may be true that the averments in the said representation may disclose cognizable offence but the judgment of the Apex Court in LALITA KUMARI V/ s. GOVERNMENT OF UTTAR PRADESH1, which is pressed into service, relates to inaction of police in not entertaining the complaints disclosing commission of cognizable offence. The Apex Court, speaking through a Constitution Bench, summarized the law in connection with the registration of crimes as under:

1.

The registration of a FIR is mandatory under Section 154 Cr.P.C., if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

2.

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 a cognizable offence is disclosed or not.

3.

If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where the 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 the reasons in brief for closing the complaint and not proceeding further.

1 (2014) 2 SCC 1

4.

A police officer cannot avoid his duty of registering a FIR if a 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.

5.

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.

6.

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 d. Corruption cases e. Cases where there is abnormal delay/ laches in initiating a criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay 7.

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.

8.

Since the General Diary/ Station Diary/ Daily Diary is the record of all information received in a police station, all information relating to cognizable offences, whether resulting in registration of a 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 therein.

4) Here is a case where the representation is said to have been made to the High Commission of India, India House, London. In my view a direction to an authority, who is stationed outside this Country, to consider the representation, cannot be granted. If the petitioner is aggrieved by the acts of misappropriation and is of the view that the Courts in India get jurisdiction in view of Section 4 of I.P.C. he is at liberty to avail the remedies available under the Criminal Procedure Code.

5) Hence, the request made by the petitioner, seeking a direction to an authority stationed at London to consider the representation is rejected.

6) Accordingly, the writ petition is dismissed. No order as to costs.

7) Consequently, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

_________________________ JUSTICE C. PRAVEEN KUMAR 03.07.2017 gkv