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2013 DIGILAW 40 (ORI)

Bindu Mohanta v. State of Orissa

2013-02-05

B.N.MAHAPATRA

body2013
Judgment B.N. MAHAPATRA, J. This writ petition has been filed with a prayer for issuance of a writ of mandamus prohibiting opposite parties from interfering with the peaceful life of the petitioners so also from arresting the petitioner No.2 on the allegation of kidnapping of the petitioner No.1. Further prayer of the petitioners is for issuance of a direction to take necessary action on the written report of the petitioner No.1 under Annexure-2. 2. Case of the petitioners is that petitioner No.1 is the wife of petitioner No.2. Both the petitioners in order to materialize their love affairs fled away from their houses and got married. After marriage, they are living as husband and wife. The opposite parties, more particularly opposite party No.3-Inspector-in-Charge, Tiring Police Station is harassing the petitioners thereby taking all possible steps to arrest petitioner No.2 in connection with allegation of kidnapping the petitioner No1. Hence, the present writ petition. 3. Mr. Mohapatra, learned counsel appearing for the petitioners submits that the petitioners were in love with each other since years together, but the family members of both the petitioners were objecting towards such relationship. The family members had taken various steps to separate them from each other for which the petitioners decided to flee away from their houses in order to materialize their love affairs thereby marrying each other. Accordingly, the petitioners fled away from their houses and on 15th January, 2013 got married at Dubapal Mahadev Temple, Dubapal in the district of Mayurbhanj. After getting married, both are living as husband and wife thereby maintaining their happy conjugal life. After marriage, they have sworn affidavits declaring that they have married to each other. Further, they have also executed deed of marriage agreement to that effect on 18.01.2013. After marriage, the family members of petitioner No.2 with much hesitation have accepted them, but opposite party No.4-Chandra Mohan Mohanta with his personal ego is taking all possible steps to take away petitioner No.1 and to give her marriage somewhere else against her will. When petitioner No.1 came to know that her father is taking such steps, she approached opposite party no.3 thereby lodging information to that effect, but no action has yet been taken to protect petitioner No.1 from vindictive action of her father, opposite party No.4. When petitioner No.1 came to know that her father is taking such steps, she approached opposite party no.3 thereby lodging information to that effect, but no action has yet been taken to protect petitioner No.1 from vindictive action of her father, opposite party No.4. The petitioners from the reliable sources ascertained that opposite party No.4 has lodged F.I.R. before opposite party no.3 with the allegation that petitioner No.2 has kidnapped her daughter-petitioner No.1. As such, opposite party No.3 having hand in gloves with opposite party no.4 is taking all possible steps to arrest petitioner No.2 on the allegation of kidnapping petitioner No.1. As a result, opposite party no.3 has been gained over by opposite party no.4 to such an extent that even he has not yet registered the written report of the opposite party no.4 as F.I.R. nor sent the same to the Court of the Magistrate as required under law. Rather he is intending to arrest the petitioner No.2 first and thereafter will forward him to the Court by registering the written report of opposite party No.4. The petitioners are major and have attained the age of discretion. They are competent enough under the law to choose their life partner and therefore, they have married each other as per Hindu Custom thereby maintaining their happy married life without any disturbance from any corner, but due to the high handed action of opposite party Nos.3 and 4 their happy married life is being disturbed. 4. In support of his contention, Mr. 4. In support of his contention, Mr. Mohapatra places reliance upon the decision of the Hon’ble Supreme Court in the case of Comptroller and Auditor General of India, Gian Prakash, New Delhi and another vs. K.S. Jagannathan & Anr., AIR 1987 SC 537 and submits that the High Courts while exercising their jurisdiction under Article 226 of the Constitution have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing such discretion which has been conferred. Further he places reliance upon the judgment of the Hon’ble Supreme Court in the case of Secretary, Cannanore District Muslim Educational Association, Kanpur vs. State of Kerala and others, AIR 2010 SC 1955 and submits that mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226 of the Constitution. 5. Learned Additional Standing Counsel submits that this writ petition is not maintainable as the petitioners have approached this Court without availing the remedy available under the Statute. It is always open to the petitioners to approach the concerned Superintendent of Police/jurisdictional Magistrate under Sections 154(3) and 156(3) of the Code of Criminal Procedure, 1973 if the FIR is not registered. For the purpose of obtaining anticipatory bail, the petitioner no.2 should take shelter before the competent court under Section 438 of the Code of Criminal Procedure, 1973. 6. On careful reading of the averments and prayer made in the writ petition, it transpires that the grievance of the petitioners is that opposite party No.3-Inspector-in-charge, Tiring Police Station is not registering the FIR lodged by the informant (petitioner No.1) but harassing the petitioners. Further prayer of the petitioners is to give protection and grant anticipatory bail to them in exercise of power under Article 226 of the Constitution. 7. Further prayer of the petitioners is to give protection and grant anticipatory bail to them in exercise of power under Article 226 of the Constitution. 7. So far the first prayer of the petitioners is concerned, the same is with regard to non-registering of FIR. Remedy is available to that effect under Sections 154(3) and 156(3) of the Code of Criminal Procedure. 8. There is no quarrel over the law settled by the Hon’ble Supreme Court in the cases of K.S. Jagannathan (supra) and Secretary, Cannanore District Muslim Educational Association, Kanpur (supra). 9. At this juncture, it would be beneficial to refer the decision of the Hon’ble Supreme Court in the case of Sakiri Vasu vs. State of Uttar Pradesh and others, (2008) 2 SCC 409 , wherein it is held as under: “11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr. P.C., then he can approach the Superintendent of Police under Section 154(3) Cr. P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr. P.C. before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. 13. The same view was taken by this Court in Dilawar Singh v. State of Delhi3 (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr. P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr. P.C.. 14. Section 156(3) states: “156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” The words “as abovementioned” obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station. 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr. P.C. 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. Saldanha4 (SCC : AIR para 19). 17. In our opinion Section 156(3) Cr. P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr. P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. Xx xx xx 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 Cr. 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 Cr. P.C. 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 Cr. P.C. 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) Cr. P.C. or other police officer referred to in Section 36 Cr. P.C.. 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) Cr. P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr. P.C.. Moreover, he has a further remedy of filing a criminal complaint under Section 200 Cr. P.C.. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? 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 Cr. P.C. 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) Cr. P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr. P.C. and not by filing a writ petition or a petition under Section 482 Cr. P.C.. 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) Cr. P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr. P.C. and not by filing a writ petition or a petition under Section 482 Cr. P.C.. 28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. 29. In Union of India v. Prakash P. Hinduja12 (SCC vide para 13) it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr. P.C. is satisfied that proper investigation has not been done, or is not being done by the officer in charge of the police station concerned, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate). 10. In view of the aforesaid decisions of the Hon’ble Supreme Court, the petitioners are at liberty to approach the Superintendent of Police, Mayurbhanj/jurisdictional Magistrate for appropriate relief. 11. Second prayer of the petitioners is with regard to grant of anticipatory bail. The petitioners are also at liberty to avail the remedy available under the statute by way of filing petition under Section 438 of the Code of Criminal Procedure Code, 1973. 12. With the aforesaid observation and liberty to the petitioners, the writ petition is disposed of.