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2003 DIGILAW 353 (JK)

Ravi Sethi v. State Of J. &K.

2003-11-14

S.K.GUPTA

body2003
Petitioner claims to be carrying on a business of soft drinks in a shop within the area of Sarwal Colony, Jammu. Respondent-4, Incharge, Police Post, Sarwal started forcibly taking the carton of soft drinks from the petitioners shop without paying any cost and when petitioner objected to it, respondent-4 became irritant, flew into a rage, used abusive language and threatened with dire consequences on 30th January, 2003. The petitioner out of fear lodged a complaint with Police Helpline personally and informed the Superintendent of Police, Jammu about the incident and threat faced by him and his family members. But when nothing was done by the respondents in regard to his complaint to the Police Helpline, the petitioner lodged a written complaint, which led to the formation of a Committee headed by Bhole Shankar, Additional Superintendant of Police, to investigate the matter. The report, however, never came to be finalized and saw the light of the day. Instead of having any change in the demeanour of respondent-4, he became very rude, obtuse, uncivilized and harsh towards the petitioner and his family members. The visit of respondent-4 became very frequent to the petitioners house, using filthy language under the smell of liquor to his wife and other members of the family. It is also stated that the life of the petitioner and family members has been virtually reduced to shambles on account of intolerable behaviour of respondent-4, and domicile visits and persistent harassment by respondent-4. The petitioner approached the higher authorities, brought to their notice the misdeeds and the criminal acts of respondent-4 and deplored to protect his life and the life of his family and their property, which is a valuable right guaranteed to the petitioner under Article 21 of the Constitution, but without any positive response. Obviously, every thing knuckled under political pressure and extraneous influence exercised by respondent-4. It is under these circumstances that the petitioner sought the indulgence of the Court for issuance of a writ of mandamus commanding respondents-1 to 3 to provide security and protection to the petitioner and his family, and prohibiting respondent-4 from day to day threat and harassment caused by him by frequent domicile visits to their house and also initiated a thorough investigation into and conduct of respondent-4 for taking action against him, both legally and departmentally. 2. 2. Respondents in their objections have taken a stand that detailed enquiry was ordered and conducted by Bhole Shanker, IPS, on the complaint received from the petitioner, in respect of misbehaviour and alleged criminal acts of respondent-4. The petitioner, however, did not cooperate with the Inquiry Officer, though he was called several times by the Inquiry Officer. The Inquiry Officer, after recording the statement of respondent-4 and going into the incident narrated by him with regard to the activities of the petitioner, in depth, found that the complaints against respondent-4 are not based on facts. The allegations in the complaint lodged by the wife of the petitioner were also found without basis and consequently exonerated respondent-4. It was further pointed out that the petitioner had imbibed enmity against respondent-4 on account of various incidents; one of which is that, petitioner grabbed the land in exercise of muscle power and when it was objected and the encroachment made was demolished through Municipality, the petitioner made up his mind to wreck vengeance and engineered various frivolous and false complaints against respondent-4, one of which was also made on Police Helpline on 29th January, 2003. Another incident was also quoted in their reply by the respondents that the petitioner is carrying on illegal activities and when respondent-4 prevented him to continue with such activities, the petitioner became sore about it and thought of maligning him in the public by coining false stories against him (respondent-4) and reporting in the paper. The shop, from which the petitioner was running his business, was grabbed by him and is at present locked in a pending civil case. 3. It is well settled proposition of law that in order to obtain a writ or order in the nature of mandamus, an applicant must satisfy that he has a legal right to the performance of a legal duty (as distinguished from a discretion), by the party against whom the mandamus is sought, and such right must be subsisting on the date of the petition. An extraordinary writ jurisdiction of the Court cannot be invoked, where equally efficacious and alternative remedy is available. This jurisdiction also cannot be invoked, in case disputed questions of facts between the parties are required to be determined by adducing evidence. 4. In this case, acting upon the complaint of the petitioner, respondents constituted a Committee headed by Bhole Shanker, IPS Officer. This jurisdiction also cannot be invoked, in case disputed questions of facts between the parties are required to be determined by adducing evidence. 4. In this case, acting upon the complaint of the petitioner, respondents constituted a Committee headed by Bhole Shanker, IPS Officer. The petitioner did not co-operate with the Inquiry Officer. The Inquiry Officer, however, after recording the statement of respondent-4, going deeply into the allegations in the complaint made to the Police Helpline and thereafter a written complaint to the Superintendent of Police, found that the allegations against respondent-4 are without any basis. The respondents also justified the action of respondent-4 by quoting certain incidents pertaining to illegal activities of the petitioner, on account of which, inimical relations developed between them. All these facts and the pleas taken by the respondents in their demurrer remained uncontroverted by the petitioner by filing a counter affidavit. 5. Moreover, the averments in the writ petition are more or less of a rambling nature and lack cohesion. The relief sought by the petitioner in the writ petition, in such circumstances, cannot be granted in exercise of writ jurisdiction under Article 226 of the Constitution. In this view of the matter and under such circumstances, the remedy available to the petitioner is by filing a complaint before the appropriate forum and not by way of writ petition. This is said so, because the petitioner has not been able to prove the allegations and accusations made against respondent-4 in his complaint, during enquiry conducted Shri Bhole Shanker, IPS Officer, inasmuch as he did not co-operate with him, though summoned several times by the Inquiry Officer. In such circumstances, it cannot be said with certitude that the petitioner has succeeded in carving out a prima facie case to maintain the writ petition. In this view of the matter, I do not find any merit in this petition and is, accordingly, dismissed.