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Calcutta High Court · body

2010 DIGILAW 872 (CAL)

Jogmaya Das v. STATE OF WEST BENGAL

2010-07-27

J.K.BISWAS

body2010
JUDGMENT 1. THE Court : THE petitioners in this art.226 petition dated July 23, 2010 are seeking the following principal reliefs: "(a) A writ in the nature of mandamus commanding the respondents No.2 to 4 to take immediate cognizance of the complaint lodged by the petitioner dated 12.7.2010. (b) A writ in the nature of mandamus commanding the Respondent No.2 to 4 prevent the ill acts and motive of the Private Respondents and their associates for taking forcible possession of their property of the petitioners during cultivation period and harvesting period simaltaneously." 2. COUNSEL submits that in view of the provisions of s.23 of the Police Act, 1861 the police are empowered to take cognizance of offence. I am unable to agree with him. The police have no power to take cognizance of any offence. If the private respondents have committed any offence and the police have decided not to register an FIR, in my opinion, the petitioners should have approached the Magistrate under s.156(3) or s.190 of the Code of Criminal Procedure, 1973. Counsel next submits that since on an application to the Magistrate, the Magistrate would have made an order directing the police to register an FIR, there is no difficulty in making such an order by the High Court under art.226. 3. I am unable to see why the High Court should exercise power under art.226 for making an order that the Magistrate is empowered to make under s.156(3) of the Code of Criminal Procedure, 1973. The petitioners have no right to choose between the Magistrate and the High Court. Their remedy, if any, was only before the Magistrate. Besides it is wrong to say that on any application the Magistrate would have of course made an order directing the police to register an FIR. 4. COUNSEL lastly submits that the private respondents are threatening to dispossess the petitioners of their lands. He says that the suit filed by the private respondents was dismissed. The petitioners are free to approach the appropriate Civil Court for protection of their possession, if they are in possession of the lands. They are also free to apply to the police officer empowered to decide the question of supply of police guards to private persons according to the provisions of the relevant statute and regulation. The petitioners are free to approach the appropriate Civil Court for protection of their possession, if they are in possession of the lands. They are also free to apply to the police officer empowered to decide the question of supply of police guards to private persons according to the provisions of the relevant statute and regulation. No order can be made by the High Court under art.226 directing the police to see that the private respondents cannot dispossess the petitioners of the property in question.