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2021 DIGILAW 715 (ALL)

Kanya Devi v. State of U. P.

2021-07-23

SHAMIM AHMED

body2021
JUDGMENT : 1. Counter affidavit filed today, is taken on record. 2. Heard Sri Ulajhan Singh Bind, learned counsel for the petitioner as well as Sri Vinod Kant, learned Additional Advocate General assisted by Sri Nagendra Srivastava and Sri G.P. Singh represents State-respondents. 3. This habeas corpus writ petition has been filed by Ramrati, the mother of the corpus with the following prayer : “(i) Issue a habeas corpus writ, order or direction in the nature of habeas corpus directing the respondents to produce the corpus namely Kanya Devi d/o Harmunji Lal before this Hon'ble Court and setting her at liberty to go anywhere where she wants. (ii) Issue any other suitable habeas corpus order or direction as may be deemed fit and proper in the circumstances of the case. (iii) Allow this habeas corpus writ petition in favour of the petitioner.” 4. Learned counsel for the petitioner submits that in pursuance of the application filed by the petitioner before the learned Magistrate on 18.11.2018 for registering the F.I.R. against the respondent nos. 4, 5 and 6 namely Sanjay Kumar, Madhu and Arvind, an F.I.R. was lodged on 13.01.2020, under Sections 498A, 364 I.P.C. and 3/4 D.P. Act against them at Police Station Shivkuti, District Prayagraj but neither the proceedings of the case was expedited nor the corpus was recovered. He further argued that respondent nos. 4 and 5 used to harass the petitioner-Kanya Devi and the petitioner had informed her mother in this regard. The petitioner had phoned her mother for help but her mother was not in a position to help her and after some days, respondent nos. 4 & 5 with the help of respondent no. 6 detained the petitioner. The respondent no. 6 and respondent no. 5 are live in relationship and respondent no. 5 is sister of respondent no. 4 and respondent nos. 5 & 6 are living in the house of respondent no. 4. It was further the case of the prosecution is that the investigating officer after registering the FIR had not taken any action against the respondent nos. 4, 5 & 6 nor given any information about recovery of the petitioner/corpus to her mother namely Ramrati. Thereafter, the mother of the corpus namely Ramrati filed a Criminal Misc. 4. It was further the case of the prosecution is that the investigating officer after registering the FIR had not taken any action against the respondent nos. 4, 5 & 6 nor given any information about recovery of the petitioner/corpus to her mother namely Ramrati. Thereafter, the mother of the corpus namely Ramrati filed a Criminal Misc. Writ Petition No. 7408 of 2020 before this Court and this Court disposed of the above writ petition vide order dated 06.10.2020, the same is reproduced herein below : “Heard Sri Ulajhan Singh Bind, learned counsel for the petitioner and the learned AGA. This writ petition has been filed for seeking a writ of mandamus commanding the respondent concerned to conduct fair investigation in pursuance of FIR dated 13.01.2020. It is submitted that petitioner is an informant in the above case and despite approaching the authority concerned for fair investigation, no action whatsoever has been taken, an appropriate direction be issued for fair and expeditious investigation. It is well settled in view of the decision of the Apex Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 as reiterated in Sudhir Bhaskarrao Tambe v. Hemant, Yashwant Dhage and others, (2016) 6 SCC 277 that in the event of unsatisfactory investigation, remedy of the aggrieved person is not to approach the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) Cr.P.C. Paragraphs 2 and 3 of Tambe (supra) are quoted hereunder: "2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. 3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation." Thus, in view of the above, remedy, if any, for the petitioner is to approach the competent Magistrate in respect of his grievance. With the aforesaid observations, this writ petition is disposed off. The party shall file a computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card). The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.” 5. Thereafter, learned counsel for the petitioner further submits that in compliance of the order dated 06.10.2020, the mother of corpus, Ramrati moved an application before the Magistrate concerned, thereafter, the learned Chief Judicial Magistrate, Court No. 10, Allahabad passed an order on 22.10.2010, the same is reproduced herein below : vkns'k ÁkfFkZuh jkejrh dh vksj ls mijksDr ekeys esa ekuuh; mPp U;k;ky; esa nkf[ky fØfeŒ felŒ fjV isVh'ku uEcj 7408@2020 esa ikfjr vkns'k fnukafdr 06-10-2020 nkf[ky fd;k x;k gSA lquk rFkk ekuuh; mPp U;k;ky; ds mijksDr vkns'k dk voyksdu fd;kA ekuuh; mPp U;k;ky; ds mijksDr vkns'k ds vkyksd esa lacaf/kr foospd dks vknsf'kr fd;k tkrk gS fd mDr ekeys esa foospuk vfr'kh?kz iw.kZ djuk lqfuf'pr djsa rFkk vkjksii= vfr'kh?kz U;k;ky; esa Ásf"kr djuk lqfuf'pr djsaA bl vkns'k dh ,d Áfr lacaf/kr Fkkuk iqfyl dks vuqikyu gsrq Ásf"kr dh tkosA 6. Learned counsel for the petitioner further submits that the petitioner was neither aware of the proceedings of the case nor any progress report has been submitted by the Investigating Officer. 7. Per contra, Sri Vinod Kant, learned Additional Advocate General submits that the jurisdiction lies with the Magistrate in view of the provision of Section 190 read with Section 156 of Cr.P.C. and the Magistrate shall proceed in accordance with law. He further suggests that the petitioner may approach before the concerned Magistrate regarding the latest progress of the case and she may also apprised the learned Magistrate that the matter may be expedited, the learned Magistrate may proceed in the matter in accordance with law, hence the present habeas corpus writ petition is not maintainable at this stage and referred the provision of Section 190 and 156 Cr.P.C. which is reproduced hereinbelow : 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 156. Police officer' s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned. 8. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned. 8. Considering the arguments advanced by the learned counsel for the parties and after perusal of record, this Court finds that there is a force in the submission made by Sri Vinod Kant, learned Additional Advocate General that the petitioner has a remedy under Section 190 read with Section 156 of Cr.P.C. to approach before the concerned Magistrate for redressal of her grievance. 9. From the persual of the record, it is beyond doubt to observe that the learned Magistrate is already monitoring the matter and has passed the order dated 22.10.2020 directing the Investigating Officer to investigate the matter expeditiously and submit his report forthwith, if the petitioner is not satisfied with the progress of the investigation, she may apprise the learned Magistrate with this fact and she may move appropriate application in the case for further direction to be issued in accordance with law by the learned Magistrate. 10. Thus, in view of the above, the remedy, if any, for the petitioner is to approach the concerned Magistrate in respect of her grievance, the present habeas corpus writ petition before this Court is not maintainable. 11. With the above observation and direction, the present habeas corpus writ petition is being finally disposed of.