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2009 DIGILAW 780 (CAL)

Kiar Sehen Pvt. Ltd. v. State of West Bengal

2009-10-16

BISWANATH SOMADDER

body2009
Judgment 1. Heard the learned Advocates for the parties. 2. This application has been filed by a private limited company under Article 226 of the Constitution of India, seeking protection of its right inter alia, under Article 21 of the Constitution of India. 3. The principal grievance of the petitioner-company is inaction on the part of the police authorities to initiate investigation, pursuant to an FIR lodged before the Officer-in-Charge, Tollygunge Police Station on 27th July. 2009. Learned Advocate for the petitioner-company submits that his client is armed with an order of the Civil Court whereby injunction was granted in favour of the petitioner-company against the private respondents herein. According to him, in spite of such injunction subsisting the same is sought to be violated by the private respondents. Learned Advocate further submits that this action amounts to violation of human rights by the private respondents and as such, the petitioner is entitled to protection under Article 21 of the Constitution of India. 4. On the other hand, learned Advocate representing the State relies on a judgment of the Supreme Court of India, reported in the case of Alequc Padamsee & Ors. vs. Union of India, reported in 2007(6) SCC 171 , and submits that if no action is taken by the police in case of a complaint made the proper remedy for a person in such a case is to approach the concerned Magistrate, since the complainant is adequately empowered under section 190 read with section 200 of the Criminal Procedure Code to lay a complaint before the concerned Magistrate. He further submits that in the event of such a complaint being made the Magistrate is required to enquire into the same, as provided under Chapter XV of the Criminal Procedure Code. He thus submits that the writ petition is not maintainable in law. 5. Learned Advocate appearing on behalf of the private respondents submits that the allegations made in the writ petition are wholly baseless and frivolous. The learned Advocate for the private respondents essentially adopts the submission made by the learned Advocate for the State. 6. He thus submits that the writ petition is not maintainable in law. 5. Learned Advocate appearing on behalf of the private respondents submits that the allegations made in the writ petition are wholly baseless and frivolous. The learned Advocate for the private respondents essentially adopts the submission made by the learned Advocate for the State. 6. After considering the submissions made by the learned Advocate for the parties I am of the view that the writ petitioner, being a private limited company, is merely a juristic entity, artificial in nature and therefore cannot seek protection of its right under Article 21 of the Constitution of India, which reads as follows: 'Article 21. Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law.' 7. A plain reading of this Article would essentially reveal than the word. I "person", referred in the context of this Article, necessarily means a natural person, i.e., a human being and certainly not an artificial person or a juristic entity, such as a private limited company. This is all the more evident when one reads the word, "person", as used in Article 21, in the context of deprivation of "his life" or "personal liberty". 8. Constitutional guarantee under Article 21, however, is always available to any person seeking protection under it, who may be working in such juristic entities: e.g., a Chairman or a Director or any officer or an employee, provided of course, they approach the Court in their individual capacity. 9. Be that as it may, and in any event, the proper course of the petitioner-company ought to have been to approach the Court of competent jurisdiction at the first instance, for initiation of complaint against the police authorities, on the failure of the police authorities to take cognizance of the complaint made by the petitioner-company, as alleged in the writ petition. There is no manner of doubt that the high prerogative Constitutional writ jurisdiction for judicial review of administrative/executive action is available to individuals as well as artificial persons or juristic entities, such as, private limited or public limited companies. However the invocation of writ jurisdiction ought to be sparingly used in a fact situation, such as the present one. There is no manner of doubt that the high prerogative Constitutional writ jurisdiction for judicial review of administrative/executive action is available to individuals as well as artificial persons or juristic entities, such as, private limited or public limited companies. However the invocation of writ jurisdiction ought to be sparingly used in a fact situation, such as the present one. In the judgment relied on by the learned Advocate appearing on behalf of the State (referred supra), the Supreme Court has made it clear that in case of failure of inaction on the part of police officials to take notice of cognizable offence, the modalities to be adopted are set out in section 190 read with section 200 of the Code of Criminal Procedure. In such a case, the proper course of the person complaining of police inaction would be to approach the Court of competent jurisdiction, instead of hastily approaching the high prerogative Writ Court. 10. In the circumstances, I have no hesitation in dismissing the writ application. 11. Although, I am inclined to award costs, but in the facts and circumstances of the instant case since it will have to be entirely borne by the litigant, I refrain from doing so. The writ petitioner is always at liberty to get his grievance redressed in accordance with law by approaching the Court of competent jurisdiction. I make it clear that the writ petition is dismissed purely on the point of law as discussed above and I have not gone into the merit of the case in any manner. 12. Urgent xerox certified copy of this order, if applied for, be issued to the parties as expeditiously as possible. Appeal dismissed.