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2009 DIGILAW 20 (CAL)

Nagendra Nath Manna v. STATE OF WEST BENGAL

2009-01-14

DEBASISH KAR GUPTA

body2009
Judgment 1. None appears on behalf of any of the respondents in spite of service of notice together with the copy of the writ application upon all the respondents. 2. This writ application is filed by the petitioner for a direction upon the respondent No.2 namely, Officer-in-Charge, Khejuri Police Station, District Purba Medinipur to take appropriate steps so that the respondent Nos. 4, 5 and 6 do not disturb him from enjoying his right of peaceful possession of his residential premises lying and situated at Village and P.O. Krishnagar, P.S. Khejuri, District- Purba Medinipur. 3. According to the petitioner, he is the owner of the aforesaid residential premises. From March 10, 2007, the respondent Nos. 6, 7 and 8, being three sons of the writ petitioner, have been making attempts to drive him out from his aforesaid residential premises. It is the case of the petitioner that he lodged a general diary at the Khejuri Police Station, District-Purba Medinipur on March 12, 2007. Subsequently, the petitioner submitted another complaint dated December 5, 2008 to the respondent No.2 but the respondent No.2 and other police officers are sitting tight over the matter. 4. Having heard the learned Counsel for the petitioner and after giving my anxious consideration to the facts and circumstances of the case, I find that this is an allegation against the police officers of the Khejuri Police Station to sit tight over the matter. A number of disputed questions of facts are involved in this writ application. 5. With regard to the maintainability of an application under Article 226 of the Constitution of India on this point, law is now well-settled. When the information is laid with the police, but no action in that behalf is taken, the complainant can under section 190 read with section 200 of the Code of Criminal Procedure, 1973 lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. 6. 6. In this regard, the relevant-portions of the decision of Hari Singh vs. State of U.P., reported in AIR 2006 Supreme Court 2464, are quoted below: "Paragraph 4.-Wheh the information is laid with the police, but no action in that behalf is taken, the complainant can under section 190 read with section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complain to as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII or the Code and to submit a report. If he finds that the complaint docs not disclose any offence to take further action, he is empowered to dismiss the complaint under section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees, Union (Reg.) through its President vs. Union of India & Ors., 1996(11) SCC 582 . It was specifically observed that a writ petition in such cases is not to be entertained. Paragraph 5.-The above position was again highlighted recently in Gangadhar Janardan Mhatre vs. State of Maharashtra, 2004(7) SCC 768 , and in Minu Kumari & Anr. vs. State of Bihar & Ors., 2006(4) SCC 359 . Paragraph 6.-That being so, this petition is not to be entertained. It is case of the petitioner that he is under constant threat by some persons and his life and property are in danger. If he seeks any protection, it is the duty of the concerned police officials to provide such security as are warranted in the circumstances in accordance with law." 7. In view of the above settled principles of law, this writ application is dismissed. This order will not prevent the petitioner from taking recourse to law in accordance with the provisions of sections 156, 190 read with section 200 of the Code of Criminal Procedure, 1973 before the appropriate forum of law. 8. There will, however, be no order as to costs. 9. This order will not prevent the petitioner from taking recourse to law in accordance with the provisions of sections 156, 190 read with section 200 of the Code of Criminal Procedure, 1973 before the appropriate forum of law. 8. There will, however, be no order as to costs. 9. Urgent xerox certified copy of this order, if applied for, be given to the petitioner. Appeal dismissed.