KRISHNAKANT G BORKAR Vs. EUFFEMIO AZAVEDO

JUDGEMENT

(1.) RULE. By consent heard forthwith.

(2.) THE filing of this petition, which makes a very unhappy and unpleasant reading, sadly, projects once again the conduct of some Police Officers which tends to tarnish the image and reputation of the Department and is likely to forfeit the trust and confidence which the public is supposed to repose in the Institution as a whole, inasmuch as it reveals upto what extent mental and moral dishonesty on extraneous considerations can render ineffective the machinery of an Institution which is supposed to be the custodian of the rule of law turning it, thus, in a real mockery in the eyes of public. This is precisely the grievance of the petitioner who has approached this Court with a petition under Articles 226 and 227 of the Constitution of India challenging the inaction of the Police Officers, namely, the Police Inspector of Panaji Police Station, in taking steps on a complaint lodged by him, which ex facie reveals the commission of serious offences under Indian Penal Code against the accused, who is the respondent No. 1 in the petition, and persistently refused to prosecute him in accordance with law.

(3.) THE petitioner, who contends to be a businessman dealing in pharmaceutical products as stockist and distributor in Goa under the name and style of M/s Satkar Agencies, states that he has a godown-cum-office situated on the first floor of Azavedo building belonging to the respondent No. 1 to whom for the last 16 years he is paying a monthly rent of Rs. 75/- and Rs. 50/- for two partitioned rooms. It is the case of the petitioner that on 23rd October, 1994, he along with his son went to remove some pharmaceutical stocks from the godown and he was shocked to find that the locks on the door of the premises occupied by him had been removed and replaced by some other locks thereby preventing the petitioner from entering the rented premises. The petitioner also states that on 13th August, 1994 he had approached the respondent No. 1 to pay him rents from January 1994 to July 1994, as per his practice for the last many years and that the respondent No. 1 refused to accept the same. Thereafter he again approached the said respondent on 7-9-1994 with additional rent for the month of August, 1994 which once again the respondent No. 1 refused to accept. Therefore on 1st October, 1994 the petitioner sent to the said respondent rents for the months from January 1994 to September 1994 by Money Order which the respondent refused to accept and returned the same to the petitioner. It was contended that the respondent has clearly shown his mala fide intention to evict him from the rented premises and in fact succeeded in so doing by illegally restraining him from entering the premises without the due process of law. This also became evident from the fact that the said respondent cut and removed the old locks and replaced the same by new ones. The petitioner therefore immediately approached the Panaji Police Station wherein one A. S. I. , who was in-charge, showed reluctance to record his complaint, which prompted him to approach the respondent No. 2, the Police Inspector, who asked the concerned A. S. I. to obtain a written complaint from the petitioner with all the documents. Accordingly the petitioner filed written complaint supported by all documents such as rent receipts for the past 16 years, electricity bills, correspondence, dealership licences. etc. all bearing address of the petitioner as Azavedo Building. However, the said Assistant Sub-Inspector recorded his complaint as Non-cognizable and asked the petitioner to approach the Civil Court on the ground that the matter was of civil nature. The petitioner, in view of the stand taken by the Assistant Sub-Inspector, approached the respondent No. 3 requesting him to direct his subordinate to make appropriate enquiries and to take necessary criminal action against the accused who has committed offences of criminal trespass, house breaking, mischief, nuisance, wrongful restraint, all the offences punishable under the Indian Penal Code. It was then pointed out to the respondents Nos. 2 and 3 that the respondent No. 1 had virtually evicted the petitioner from the rented premises without due process of law and with muscle power and if such tactics could succeed due to the failure of competent authorities to take appropriate criminal action, this would encourage unscrupulous landlords to successfully evict the unwary tenants without due process of law driving the helpless tenants to approach the Civil Courts and, at the same time, giving a premium to the muscle power. However, no action has been taken either by respondent No. 2 or respondent No. 3 and he has been simply informed that the matter being of civil nature he should approach the Civil Court. The petitioner states that he had filed a civil suit for permanent mandatory injunction against the respondent with prayers to direct the respondent No. 1 to remove his locks from the suit premises. In the meantime the petitioner learnt that the respondent No. 1 had destroyed all the stocks existing in the suit premises worth about Rs. 1,86,000/- by throwing them from the first floor and setting fire to the cartons and removing part of the consignment, which practically tantamounts to commiting theft and criminal misappropriation. It was stated that the respondent No. 1 had committed offences which are punishable with imprisonment under the Indian Penal Code, but even assuming that no such offences had been committed, it was the bounding duty of the respondents Nos. 2 and 3 to investigate the matter in the face of the voluminous evidence of possession of the suit premises placed by him before the respondents Nos. 2 and 3. The respondents therefore ought to have taken appropriate action on behalf of the State against the accused and ought to have prosecuted him for the above offences. It was also stated that since the respondents Nos. 2 and 3 have failed to do their duty and remained passive spectators on the contention that the matter was of civil nature, the petitioner was forced to launch private prosecution in the matter by lodging a complaint in the Court of Judicial Magistrate, First Class. It was contended that even for minor offences criminal prosecution is always launched by the Police Department and here was a case where a number of criminal offences as defined by the Penal Code had been committed, goods worth Rs. 1. 86,000/- had been stolen and destroyed and the tenant had been illegally and without due process of law evicted and still the respondents were insisting that it was a case of civil nature. It was urged that the respondent No. 2 was either ignorant of law or was committed to protect respondent No. 1 from any criminal liability for reasons best known to himself. The petitioner stated that the reasons appeared to be obvious since the respondent No. 1 was a Bar owner, having a centrally located Bar in Panaji and with the conspicuous inaction on the part of the respondent No. 3, the omission on the part of respondent No. 2 to take action had acquired wider significance. The petitioner has therefore prayed that this Court may issue a writ of mandamus directing the respondents Nos. 2 and 3 to conduct appropriate investigation in the matter and in view of the alleged criminal offences launch competent process against the respondent No. 1 according to law. Specifically the petitioner has sought a direction to respondents Nos. 2 and 3 to take cognizance of the complaint lodged by the petitioner on 23rd October, 1994 against respondent No. 1 and take appropriate criminal action in the matter.