IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: SURENDRANAGAR

SPECIAL CRIMINAL APPLICATION NO. OF 2021

In the matter under

Articles 226 and/or 227 of
the Constitution of India;

AND

In the matter under Sec.

482 of the Code of Criminal
Procedure, 1973 for
registration of the FIR.

AND

In the matter of
registration of complaint
dated 14.03.2021.

AND

In the matter between:

Asmitaben Harsukhbhai Bavaliya,

Female; Aged: 23 Years;
Religion: Hindu,Occupation: Housewife
Residing at:
Gadhsheervaniya,
Ta: Sayla,
District: Surendranagar ...Petitioner

V E R S U S

1. State of Gujarat,
(Notice to be served
through the Ld. Public
Prosecutor,High Court
of Gujarat, Sola -
Ahmedabad).

2. The Superintendent of Police,

The office of the Superintendent of Police
District: Surendranagar.

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 3. The Police Sub Inspector,
Dhajada Police Station
Ta: Sayla,
District: Surendranagar ...Respondents

TO
THE HON’BLE THE CHIEF
JUSTICE AND HIS
COMPANION JUSTICES OF
THE HIGH COURT OF
GUJARAT, AT SOLA -
AHMEDABAD.
THE HUMBLE
APPLICATION OF THE
PETITIONER ABOVE
NAMED:

MOST RESPECTFULLY SHEWETH THAT :

1. The petitioner is a national and citizen of

India, and therefore, he is entitled to the

protection of fundamental rights as enshrined

under the provisions of the Constitution of

India.

2. By way of this petition under Article 226

and/or 227 of the Constitution of India, and

482 of the Code of Criminal of Procedure,

1973, herein after referred to as the code, the

petitioner prays before this Honourable Court

to direct the respondent Nos. 2 & 3 to

register the FIR with respect to the written

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 complaint given to them by the petitioner

herein.

3. Brief facts giving rise to this petition are as

under :

3.1 That the complainant has committed a love

marriage with Harsukhbhai Devabhai Bavaliya

on 03.02.2021 against the wish of her family

members and people of the village. The family

members and leader of the community were

inciting members of the community by calling her

marriage as illegal. Therefore the complainant

gave an application seeking protection in the

Dhajada Police Station on 09.03.2021, as she

was having serious apprehension that she and

her in laws would be killed by the community

members. Subsequently on 10.03.202,1 the

leaders of the Community had called a meeting of

the society so as to kill the petitioner and her in

laws. The petitioner came to know that the

community members were setting people with

weapons around her house with a intention to

assault them and therefore the petitioner told

about this to her relative over a phone. Therefore

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 her relative had sent his friend to save them with

a Swift Car. During their escape from the car, the

Community members attacked on car with

weapons and fired bullets from the gun. They

also chased the care so as to kill her.

3.2 Thereafter they attacked on the family members

of her in law and thrashed them with the stick

and pipe. The family members of the in law were

admitted in the Surendranagar Civil Hospital to

take treatment in consequences of above said

assault. The complainant has made written

complaint before the Dhajada Police station of the

above said occurrence on14.03.2021. A copy of

the said complaint dated 14.03.2021 given by the

complainant before the Dhajada Police Station to

the respondent no. 2 is annexed hereto and

marked as Annexure A to this Petition.

3.3 That the respondent no. 2 did not any action

after giving the above said complaint of

commission of above said cognizable offence after

passage of reasonable time. Therefore the

complainant has sent the written complaint of

commission of above said offence to the

superintendent of police, Surendranagar i.e.

respondent no. 3 so as to direct the respondent

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 no.2 to register the complaint against the

accused persons on 10.4.2021, but no

appropriate action has been taken against the

accused persons till today, despite of the above

said complaint made to the respondent no. 2 and

3. A copy of the written complaint sent to the

respondent no. 3 along with the receipt of

R.P.AD are annexed hereto and marked as

Annexure B to this petition.

4. As a measure of last resort the petitioner has no other

option but to approach before this Hon’ble Court by

way of this petition under Article - 226 of the

Constitution seeking a Writ of Mandamus against the

respondents, on the following amongst other grounds:

:GROUNDS:

(1) The respondents have failed in their duty by not

proceeding in the direction of locating and

bringing back the daughter of the present

petitioner.

(2) Respondents are duty bound in law to investigate

into the allegations once the complaint discloses

commission of a cognizable offence. In the

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 present case the police is not even moving a

single finger and is sitting tight on the complaint

for the reasons best known to them even after

around 15 days have lapsed from the date of first

complaint given with the respondent no. 2 and 3

herein.

(3) It is pertinent to note here that, the Honourable

Supreme Court in the matter of Lalitakumari

Vs. Government of UP and Ors. has

categorically laid down the law while issuing

certain Conclusion / Directions, which are as

under ;

Conclusion/Directions:

111) In view of the aforesaid discussion, we

hold:

i) Registration of FIR is mandatory 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 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

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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

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.

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 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.

112) With the above directions, we dispose of

the reference made to us. List all the matters
before the appropriate Bench for disposal on
merits.”

(4) It is respectfully submitted that in the facts and

circumstances of the case it would be expedient

in the larger interest of justice to issue

appropriate directions in this regard to

respondents.

5. Except this petition, no other petition under the

Provisions of Article - 226 of the Constitution of

India, has been submitted to this Hon’ble Court. Or

any other court of india and Supreme court.

6. The petitioner most humbly begs to pray that this

Hon’ble Court be pleased to –

i. issue a Writ of Mandamus or any other

appropriate writ, order or direction to the

respondents herein to register the complaint

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 of the petitioner and to initiate appropriate

investigation on the complaint;

ii. pending admission and/or final disposal of

this petition, appropriate direction be issued to

the respondents herein to produce the relevant

papers of investigation carried-out so far with

an appropriate report in this regard;

iii. pass such orders as thought fit in the interest

of justice

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

PETITIONER SHALL, AS IN DUTY BOUND, EVER PRAY.

Place: AHMEDABAD. (SANKET K. PANDYA)

Date : /05/2018. Advocate for the Petitioner

: Affidavit of the Petitioner :

I, Rashikbhai Bhagwanbhai Koli Patel ,

male, petitioner herein, residing at the address
mentioned in the cause title of this petition, do hereby,
solemnly affirm and state on oath as under:
I have been read over and explained in
Gujarati contents of the memo of petition memo.
Contents of its Para. 1 to 5 are statements of facts true to
my knowledge and information. Para. 6 and 7 are legal
submissions. Whereas its last para contains prayer
clause.

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Solemnly affirmed on this day of August, 2018 at

Ahmedabad.

....................................
DEPONENT

Contents of the petition memo and of the affidavit have

been read over and explained to the Deponent in Hindi by
me.

………………..
Advocate
Identified by me,

.............................

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: AHMEDABAD

SPECIAL CRIMINAL APPLICATION NO. OF 2018

Rashikbhai Bhagwanbhai Koli Patel…Petitioner

VERSUS

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The State of Gujarat & Ors. …Respondents

LIST OF EVENTS

- By way of this petition under Article 226

and/or 227 of the Constitution of India, and
482 of the Code of Criminal of Procedure,
1973, the petitioner prays before this
Honourable Court to direct the Respondent
Nos. 2 & 3 to register the FIR with respect to
complaint dated 25.07.2018 given in writing
to them by the petitioner herein.
- On 17.07.2018 afternoon daughter of applicant
namely “ANSUYA” was not present at home and the
applicant and relatives of the applicant were
searched near by the village and realities place to
the Ansuya till 22.07.2018 but she was not found.
During the course of search of Ansuya the applicant
came to know that one Chenva Mukeshbhai
Bhagabhai who is living in the same village who was
taken away kidnap to the Ansuya with gold
ornament which was she wear and Rs.50,000/-
from the house of applicant. And therefore the
present applicant went to police station and givien
written complaint against Chenva Mukeshbhai
Bhaghabhai.
- That the applicant herein had preferred a complaint
before the Viramgam Police Station vide application
dated 25.07.2018 for registration of FIR as against
the original accused persons. However, the
respondents herein failed to take any action as
against the original accused persons.

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 - Thus, being aggrieved by inaction on the part
of the respondent no.3 herein the petitioner
has no other remedy but to approach this
Hon’ble Court.

- Hence, the present petition.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: AHMEDABAD

SPECIAL CRIMINAL APPLICATION NO. OF 2018

Rashikbhai Bhagwanbhai Koli Patel …Petitioner

VERSUS

The State of Gujarat & Ors. …Respondents

INDEX

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 Annexure Particulars Page No.
- Memo of Petition. 1 to
‘A’ A copy of the said complaint

dated 25.07.2018 registered

with Viramgam Police Station,

Ahmedabad.

PLACE: AHMEDABAD.
DATE : /08/2018.

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