An application under Article 226 and 227 of the Constitution of India v. State of Odisha

Judgment

30.04.2026 Savitri Ratho, J. This CRLMP has been filed to direct the Opposite Party No.3 to register the FIR and to cause investigation thereunder. ALLEGATION

2. The allegation of the petitioner is that on 26.12.2025, she had lodged the complaint/F.I.R. before the police alleging therein that on CRLMP No.413 of 2026

26.12.2025 some unknown persons forcibly kidnapped her son namely Debiprasad Das aged about 42 years with an intention to kill him. Her son had previous dispute with some local people of Garajanga under the Marshaghai PS. and such antisocial people murdered her son. He never returned to her house since 26.12.2025. But, the police officer refused

to register FIR and trace out her son. He assaulted the petitioner by fist blow and kick blow mercilessly and scolded her in filthy languages and threatened her with dire consequences. He only made an entry in the Diary. The Copy of the Diary Entry No-24508043250120 is annexed as Annexure-1. SUBMISSION

3. Mr. P. C. Dash, learned counsel for the petitioner submits that the petitioner is an old lady aged about 65 years and she had submitted report before the police stating that unknown persons had kidnapped her son, as he had previous dispute with some local people, but the police did not register any FIR and till date her son has not been traced. The learned counsel for the petitioner submits that case should have been registered against unknown persons regarding kidnapping of the son of the petitioner on the basis of the information given by her to the IIC on 26.12.2025 and investigation conducted in to the matter, but they have only made Station Diary Entry. CRLMP No.413 of 2026 He relies on the decision in the case of Lalita Kumari vs. Govt. of UP reported in (2014) 2 SCC 1 in support of his submission.

4. Mr. S. J. Mohanty, learned Additional Standing Counsel produces the instructions dated 22.04.2026 of the IIC, Marsaghai Police Station as well as the copy of the missing person Registration No. 120 of 2025 of Marsaghai Police Station along with the copy of the information dated 26.12.2025 submitted by the petitioner to the IIC, Marsaghai Police Station on the basis of the which MMR 120 of 2025 has been registered.

5. Mr. S. J. Mohanty, learned Additional Standing Counsel relying on the instructions dated 22.04.2026 of the IIC, Marsaghai Police Station submits that on 26.12.2025 the petitioner along with her younger son Babu Prasad Das had appeared in the Police Station and submitted a report stating that on 17.12.2025 her elder son Litu @Debiprasad Das had left the house by taking TVS Star City motorcycle of her younger son Babuprasad Das bearing regd. No. OR05AC7808 but did not return to home. As he had no cellphone, he could not be contacted. Although they searched for him but they could not trace him. Basing on such report, Marshaghai PS MMR(Man Missing Registration) No. 120 dated 26.12.2025 has been registered and SI P.K Kandulna was enquiring into the matter. The copy of CRLMP No.413 of 2026 missing person acknowledgement was granted to the petitioner and VHF message has been sent to all IIC/OIC of Police stations and out post of Odisha vide RM No. 2806 dt.26.12.2025 regarding missing of Litu @Debiprasad Das with TVS Star City motorcycle bearing regd. No. OR05AC7808 to keep sharp look out for him. Prayer has also been made to the SP, Kendrapara for Draft CIG publication of the MMR report on 01.02.2026 for tracing the missing person. During enquiry, spy was also engaged to find out any clue about the missing person, but with no fruitful result. Probable places were searched. Associates, friends and relatives of the missing person were contacted, but they could not give any clue about his present whereabouts. It is also stated that Litu @Debiprasad Das is a hardcore criminal and involved in series of cases like, murder dacoity, Robbery, extortion, Arms Act in different Police Stations and the details of the same have been indicated in the instruction and after being released on bail, it is possible that he may have absconded from the locality to avoid trial. On 26.12.2025, the petitioner had submitted a report stating that her son was missing and has not made any allegations to make out an offence under Section 103/140/142/3(5) of the BNS. The copy of the said report is produced with the instruction and is taken on record.

6. The allegations that the IIC refused to register an FIR, abused, CRLMP No.413 of 2026 assaulted and threatened the petitioner being gained over by the accused persons has also been denied. The details of the 33 cases pending against the son of the petitioner indicated in the instructions, are extracted below; “1. Marshaghai PS Case No. 67 Dt. 6.5.11 w/s 387/506/34 IPC/25 Arms Act

2. Marshaghai PS Case No. 68 D1, 06.05.11 u/s 384/506/34 IPC 25 Arms Act

3. Marshaghai PS Case No 69 Dt. 15.05.12 u/s 307/387/34 1PC/25/27 Arms Act

4. Marshaghai PS Case No. 115 D1. 9.7.12 u/s 120(b)/326/307 IIPC/25/27 Arms Act

5. Marshaghai PS Case No. 142 Dt. 18.05.13 u/s 18.05.13 u/s 387/307/326/34 IPC/25/27 Arms Act

6. Marshaghai PS Case No. 224 Dt. 15.08.13 u/s 302/326/34 IPC

7. Marshaghai PS Case No. 258 Dt. 22.09.13 u/s 341/294/302/120(b) IPC /25/27 Arms Act

8. Marshaghai PS Case No. 103 Dt. 11.05.14 u/s 341/323/294/120(B)/307 IPC 25/27

9. Marshaghai PS Case No. 220 Dt. 13.10.14 u/s 399/402 IPC/25 Arms Act

10. Marshaghai PS Case No. 223 Dt. 18.10.14 u/s 302/120(B)/201/212 213/216/34 IPC /25/27 Arms Act

11. Marshaghai PS Case No. 260 Dt. 30.11.14 u/s CRLMP No.413 of 2026 307/506/120(B) IPC/25/27 Arms Act

12. Patkura PS Case No. 01 Dt. 02.01.09 u/s 307/34 IPC/9(b) I.E. Act

13. Patkura PS Case No. 27 Dt. 31.01.09 u/s 294/387/307/34 IPC 9(b) 1.E. Act

14. Patkura PS Case No.130 Dt. 08.05.09 u/s 399/402 IPC/9(b)

1.E. Act/S Explosive Act

15. Patkura PS Case No. 317 Dt. 12.11.08 u/s 399/402 IPC/25 Arms Act

16. Abhayachandrapu PS 128 Dt. 16.10.12 u/s 341/109/307/34 IPC/25/27 Arms Act

17. Chauliaganja PS Dist-Cuttack Case No. 223 Dt. 08.12.14 u/s 399/402 IPC /25/27 Arms Act

18. Chauliaganja PS Dist-Cuttack Case No 218/14, U/S 387 IPC

19. Paradeep PS Dist.-Jagatsinghpur PS Case No.180 Dt.

24.06.14 u/s 353/307/332/120(B) IPC 25(a)/27 Arms Act

20. Paradeep PS Dist.-Jagatsinghpur PS Case No. 110 Dt.

22.06.15 u/s 307/294/506/109/34 IPC /25(1) (b)/27 Arms Act

21. Paradeep PS Dist.-Jagatsinghpur PS Case No. 98 Dt.

30.05.16 u/s 307/34 IPC /25(1)(b)/27 Arms Act

22. Sadar PS Kendrapara Case No. 26 Dt. 24.01.16 u/s 302/120(b) IPC /25/27 Arms Act

23. Tirtol PS Dist.-Jagatsinghpur Case No. 208/10 U/s 395/397 IPC/25/27 Arms Act/9 (b) I.E. Act

24. Patkura P.S Case No-37 Dt-23.02.19 U/S 294/307/34 CRLMP No.413 of 2026 IPC/25/27 Arms Act/3(1)(r)(s) SC/ST(POA) Act

25. Marshaghai P.S Case No-32

23.02.19 U/s 294/341/323/427/307/506/34 IPC/25/27 Arms Act

26. Marshaghai P.S Case No-37 Dt. 25.02.19 u/s 307/353 IPC/25/27 Arms Act

27. Marshaghai P.S case No. 68 dt. 20.03.2020 u/s 294/341/323/307/506 IPC/25 Arms Act

28. Marshaghai P.S Case No-284 dt 18.11.19 U/s-294/506/507 IPC

29. Marshaghai P.S Case No-315 dt 19.12.19 U/s-294/385/507/34 IPC/25/27 Arms Act

30. Patkura PS Case no. 125 Dt. 20.06.2020 U/s- 294/341/506/392/307 IPC/ 25/27 Arms Act/3(1)(1)(s) 2(va) SC & ST POA Act

31. Marshaghai P.S case No 381 dtd 25.09.2022 U/s-399/402 IPC/25 Arms Act

32. Marshaghai P.S case No 99 dtd 25.04.2024 U/s- 294/341/323/3548/506/387/307 IPC

33. Marshaghai P.S case No. 151 dtd 18.08.2024 U/s- 126(2)/117(2)/296/351(3)/109, BNS.” STATUTORY PROVISION

7. Sections 173(4) and 175(3) of the BNSS are extracted below for easy reference:- CRLMP No.413 of 2026 “Section 173(4)- Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate.” “Section – 175 (3) – (emphasis supplied) Any Magistrate empowered under section 210 may, after considering the application supported by an affidavit made under sub-section (4) of section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.” (emphasis supplied) JUDICIAL PRONOUNCEMENTS

8. In the case of Lalita Kumari vs. Govt. of UP reported in (2014) 2 “111) In view of the aforesaid discussion, we hold: CRLMP No.413 of 2026 i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes b) Commercial offences CRLMP No.413 of 2026 c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.” In the case of Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and Others; 2016 (6) SCC 277, the Supreme Court has held as follows: “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 be 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 d ensure, CRLMP No.413 of 2026 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.

4. In view of the settled position in Sakiri Vasu case, the impugned judgment¹ of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.” ANALYSIS AND CONCLUSION

9. In view of the decisions of the Supreme Court in the case of Sakiri Basu (supra) and Lalita Kumari (supra) it is not in dispute that where a cognizable offence is made out, the police is duty bound to register a case. In view of the decision in the case of Sudhir Bhaskarrao Tambe (supra), it is not in dispute that the petitioner has alternative remedy of approaching the jurisdictional Magistrate in case of inaction by the police and in all cases where there is allegation of inaction by the police in registering a case or improper investigation, the High Court is not required to interfere. CRLMP No.413 of 2026

10. Perusal of the CRLMP reveals that the copy of the complaint claimed to have been given at the Marsaghai Police Station on

26.12.2025 has not been filed. The MMR No. 120 dated 26.12.2025 has been annexed as Annexure-1. However, the petition dated 25.03.2026 which has been sent to the SP, Kendrapara on 25.03.2026 by speed post has been annexed as Annexure-2 to the CRLMP. The complaint has however been produced by the learned State Counsel.

11. As the information/complaint of the petitioner did not disclose any cognizable offence, there was no necessity for the police to register any case in the Police Station on 26.12.2025. As the petitioner had reported that her son was missing, a MMR was rightly registered and steps taken for tracing the whereabouts of the son of the petitioner.

12. It is found that MMR is pending since almost four months, but son of the petitioner has not been traced. It has been subsequently alleged by the petitioner that some antisocial persons have murdered her son.

13. As this allegation discloses a cognizable offence, although it is against unknown persons, if the petitioner submits a properly constituted complaint before the IIC, Marshaghai Police Station within a period of two weeks from today, the same shall be considered and acted upon in accordance with law. If the petitioner has any further grievance, it is open CRLMP No.413 of 2026 to her to follow the procedure under Section 173(4) and Section 175(3) of the BNSS.

14. It is also observed that if enquiry/investigation reveal that the son of the petitioner Litu @ Debi Prasad Das is alive and had left the village to avoid arrest by the police and this was/is in the knowledge of the petitioner, steps in accordance with law shall be taken against the petitioner and her son.

15. The CRLMP is disposed of with the aforesaid observations and directions. ……………………… (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 30th April, 2026/Subhalaxmi Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-May-2026 20:08:40 CRLMP No.413 of 2026