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2011 DIGILAW 672 (RAJ)

Guddi Devi v. State of Rajasthan

2011-03-30

MEENA V.GOMBER, RAGHUVENDRA S.RATHORE

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Hon'ble RATHORE, J.—This habeas corpus petition has been filed by the petitioner with the prayer that direction be issued to the non-petitioners to produce the detenu, i.e. the daughter of the petitioner before this court as she has been illegally detained by respondents No. 5 and 6. 2. According to the petitioner, while she is living in Hindaun City with her family, the respondents No. 5 and 6 are also living there on rent. On 12.12.2010, when the petitioner had returned from a temple she did not find her daughter Mamta at the residence. Her niece Hema informed that Vishvendra and Pushpendra , respondents No. 5 and 6, respectively, had taken away Mamta at about 12 O'clock and since then she has not come back. The petitioner is said to have tried her best to search her daughter but could not succeed. Subsequently, a report is said to have been lodged before the police but no action was taken. Deputy Superintendent of police Hindaun City was also given a complaint by the petitioner on 27.1.2011 with regard to kidnapping of her daughter by respondents No. 5 and 6 but no steps were taken on the same. The complaint is also said to have been given to the Superintendent of Police, District Karauli with regard to the said subject matter but no action have been taken. The petitioner had once again submitted the complaint to the Dy. S.P. On 1.2.2011. 3. It is also the case of the petitioner that later on, in the night of 31.1.2011, the fathers of the respondents No. 5 and 6 had come to her residence and gave threatening and asked to withdraw the cases lodged by her. Thereafter, the petitioner is said to have submitted a complaint u/s 156(3) Cr.P.C in the court of Additional Chief Judicial Magistrate, Hindaun City in respect of incident which had occurred subsequently, in the night of 31.1.2011. 4. In the aforesaid circumstances, the petitioner has filed this habeas corpus petition with the aforesaid prayer so as to have her daughter released from the custody of respondents No. 5 and 6 and to take action against them. 4. In the aforesaid circumstances, the petitioner has filed this habeas corpus petition with the aforesaid prayer so as to have her daughter released from the custody of respondents No. 5 and 6 and to take action against them. In the fact situation, we are of the considered opinion that the proper course for the petitioner was to adopt the procedure given under the Code of Criminal Procedure, including to approach the concerned Magistrate who would have passed appropriate directions to the Police for taking action in the matter. As a matter of fact, in case a person has an alternative and efficacious remedy under the Code of Criminal Procedure than it ought to have been adopted instead of invoking the writ jurisdiction of this court under Article 226 of the Constitution of India. Moreover, in the instant case, the petitioner had herself adopted that course in respect of the incident which is alleged to have taken place on 31.1.2011. But no such steps were taken in respect of the incident of 12.12.2010. 5. It would be appropriate to make reference to the principle of law laid down by the Hon'ble Apex Court in the case of Sakiri Vasu vs. State of Uttar Pradesh and Others, (2008) 2 SCC 409 = 2008(1) RLW 136 (SC)). The court has in the said case laid down, in paras No. 15, 16, 24, 25, 26 and 27 as under : “15. Section 156(3) provides for a check by the Magistrate on the Police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the Police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the Police to do the investigation properly, and can monitor the same. 16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar V. J.A.C. Saldanha. ( AIR 1980 SC 326 para 19). 24. Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar V. J.A.C. Saldanha. ( AIR 1980 SC 326 para 19). 24. In view of the aforementioned legal position, we are of the view that although section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.PC to order registration of a criminal offence and/or to direct the officer in charge of the Police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision. 25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3). 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or section 482 petitions be entertained when there are so many alternative remedy ? 27. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or section 482 petitions be entertained when there are so many alternative remedy ? 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.” 6. As the Hon'ble Supreme Court has observed, in a case where Police fails to take any action on the report lodged by the complainant, he should not rush to the High Court to file writ petition or petition u/s 482 Cr.P.C. Such an approach is to be ordinarily refused and no interference should be made. The petitioner has an alternative remedy u/s 154(3) and section 36 CrPC before the Police Officer concerned and if that is of no avail than by approaching the Magistrate concerned u/s 156(3). Besides, the petitioner has another remedy available u/s 97 Cr.P.C so as to seek an appropriate order from the concerning Magistrate for production of the detenu. As the petitioner has failed to avail the alternative and efficacious remedy , we do not find any just reason to exercise the extraordinary jurisdiction under Art. 226 of the Constitution of India. 7. Consequently, this habeas corpus petition is dismissed on account of availability of statutory remedy. However, the petitioner shall be at liberty to take steps in accordance with the aforesaid principle of law laid down by the Apex Court in the case of Sakiri's (supra) and also under section 97 Cr.P.C.