The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No.1409 of 2024 (In the matter of application under Articles 226 & 227 of the Constitution of India). Priyatama Sethi … Petitioner -versus- State of Odisha and others … Opposite Parties For Petitioner : Mr. B.P.B.Bahali,Advocate For Opposite Parties : Mr. R.B.Mishra, Addl. PP CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:24.03.2025 G. Satapathy, J. 1. The petitioner by means of this Criminal Misc. Petition invokes the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India seeking for a direction to OP Nos. 2 to 4 to register the written information under Annexure-1
Facts
series as FIR. 2. Facts in precise are that the petitioner by way of Annexxure-1(FIR) approached the in-charge of Satasankha Outpost on 28.03.2024 by stating inter alia CRLMP No.1409 of 2024 Page 1 of 11 that while she was fencing her garden, her neighbor Saroj Patra and Pappu came to her land and uprooted the poles and abused her in obscene language as well as by taking name of her caste. It is also stated by the petitioner in Annexure-1 that in terms of the Court’s Commission order, the poles were erected in her land with red flags and the aforesaid person by abusing the labour of the petitioner and uprooting the pole has stopped the work. 2.1. It is further stated that due to non- registration of her case, on 10.04.2024, the petitioner again approached in writing to the Superintendent of Police-cum-OP No.2 by registered post for appropriate direction to OP Nos. 3 & 4, but as no action was taken thereon till filing of this case, the petitioner approached
Legal Reasoning
this Court in Criminal Misc. Petition. 3. Heard, Biplaba P.B. Bahali, learned counsel for the petitioner and Mr. R.B.Mishra, learned Addl. Public prosecutor and perused the record. CRLMP No.1409 of 2024 Page 2 of 11 4. Pursuant to the direction of this Court, Mr.R.B.Mishra, learned Addl. PP has handed over the written instruction received from IIC, Pipili Police Station, wherein inter alia it has been stated as under:- “There is a civil dispute in between petitioner Priyatama Sethi (56) W/o- Narayan Sethi of village Subalapur, Utarayani Sahi, PS-Pipili, Dist.-Puri and his neighbout Saroj Kumar Patra(36) S/o- Ramesh Chandra Patra of same village. Both the parties had have sheltered before the Civil Court and the dispute is subjudice. On dated 25.03.2024 one Saroj Kumar Patra, the second party had alleged against the petitioner Priyatama Sethi as to encroachment of the Khata No.182/218, Plot No.114/755, Area AC018 decs. and had have constructed the boundary wall. Though the matter was civil in nature, he was directed to take shelter before the Court which referred to Satasankha O.P. SDE No.04 dated 25.03.2024. On the other hand, the petitioner had not turned off for Satasankha O.P./Pipili P.S. with any of her complains”. 5. Adverting to the rival submissions, this Court makes it very clear that this Court is never in disagreement with the proposition of law as argued by Mr. Biplaba P.B. Bahali that once the report of the aggrieved person discloses commission of cognizable offence, the police official has no option left, but to register the case. In this regard, this Court is alived CRLMP No.1409 of 2024 Page 3 of 11 with the principle as laid down by Apex Court in Lalita Kumari Vrs. State of Uttar Pradesh and others; (2014) 2 SCC 1, wherein a Constitutional Bench of Apex Court has inter alia held that the registration of FIR is mandatory U/S. 154 of the CrPC, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation. What would be the consequence, if the FIR is not registered despite it revealing a cognizable case has been provided in Sec. 154(3) of the CrPC, wherein it has been mandated that any person aggrieved by refusal on the part of an officer in charge of a police station to record the information referred to in sub-section(1) to Sec. 154 CrPC 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 Code, and such officer shall CRLMP No.1409 of 2024 Page 4 of 11 have all the powers of an officer in charge of the police station in relation to that offence, but if the endeavor of the aggrieved person as mandated U/S. 154(3) of the CrPC does not yield any result, he can still approach the Court by way of complaint as provided in Section 200 in Chapter XV of the CrPC. However, it is the discretion of the Magistrate either to proceed U/S. 156(3) of the CrPC or Sec. 200 to 204 of the CrPC on the complaint of the complainant. 6. In this case, the petitioner has admittedly not approached the empowered Court with a complaint as contemplated under Chapter XV of the CrPC or the provision under Bharatiya Nagarika Surakshya Sanhita, 2023 (BNSS). Mr.Biplaba Bahali, however, by relying upon the decision in K.Raghupathy Vrs. the Commissioner of Police in Criminal OP SR No.
Decision
20352 of 2017 disposed of on 10.07.2017 argues that existence of alternate remedy will not be a bar for exercising the power by this Court, but the aforesaid decision has been rendered by the Madras High Court in exercise of power U/S. 482 of CrPC. However, this CRLMP No.1409 of 2024 Page 5 of 11 Court considers that the inherent power of High Court should be exercised sparingly with circumspection and in rare cases and that too, to correct patent illegalities or when some miscarriage of justice is done. True it is that every Court has inherent power to act to do the real and substantial justice and to prevent abuse of process of the Court. Sec. 482 of the CrPC is couched explicitly by prescribing that nothing in this Code shall be deemed to limit or affect the inherent the powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 7. A procedural Code, however, exhaustive cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, every Court must in proper cases exercise its inherent power for ends of justice or for the purpose of carrying out the other provision of the Code. Further, in Emperor Vrs. Khwaja Nazir Ahmed; AIR 1945 PC 18 it has been CRLMP No.1409 of 2024 Page 6 of 11 laid down by the privy council that thing which needs to be done in a particular way should be done in that way or not at all. The scope and ambits of power U/S. 482 of CrPC were examined by the Apex Court in Madhu Limaye vrs. the State of Maharastra; AIR 1978 SC 47, wherein it has been held thus:- “8. The following principle may be stated in relation to exercise of inherent power of High Court; is not to be (i) that the power resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (ii) that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (iii) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code”. It is, therefore, very clear that when there is specific provision, the power U/S. 482 of the CrPC should not be exercised and in the present case, the petitioner has efficacious remedy provided in CrPC/BNSS to address her grievance. In this context, this Court considers it useful to refer to the decision in CRLMP No.1409 of 2024 Page 7 of 11 Sakiri Vasu v. State of Uttar Pradesh and others; (2008) 2 SCC 409, wherein at paragraph- 27, it has held as under:- “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.” 8. The principle as laid down in Sakiri Vasu(supra) has been reiterated with approval in Sudhir Bhaskarrao Tambe vrs. Hemant Yashwant Dhage and others; (2016) 6 SCC 277, the Apex Court at paragraphs-2 & 3 has held as under:- “2. This Court has held in Sakiri Vasu (supra) that if a person has a grievance that his FIR has not been registered by the police, registered, proper or having been investigation is not being done, then the CRLMP No.1409 of 2024 Page 8 of 11 is made and 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 the Section 156(3) CrPC 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 because what we have found in this country is 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 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 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”. 9. In a very recent decision in Om Prakash Ambadkar Vrs. State of Maharashtra and others; 2025 Live Law (SC) 139, the Apex Court has held as under:- CRLMP No.1409 of 2024 Page 9 of 11 is not expected “The Magistrate to mechanically direct investigation by the police without first examining whether the fact and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straight away proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the police U/S. 156(3) of the CrPC. Of the course, complaint require complex and complication investigation which cannot be undertaken without active assistance an expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police authorities. The Magistrate is, therefore, not supposed to act merely as a post office and needs to adopt a judicial approach while considering an application seeking investigation by the Police.” the allegations made in if 10. In the case at hand, the written instruction as produced by the State gives a picture relating to civil dispute between the parties which is confirmed in the so called FIR under Annexure-1 series. It is also stated in the written instruction that the petitioner has not approached either Satasankha Outpost/Pipili PS with her complaint. In view of the aforesaid facts and circumstance and taking into account the law discussed hereinabove and the fact that the dispute between the CRLMP No.1409 of 2024 Page 10 of 11 petitioner and her neighbour palpably appearing to be civil in nature and the petitioner having not approached the appropriate forum in accordance with law after refusal of her grievance by the police, this Court does not consider it proper to interfere in the matter by issuing any direction to the OPs-Police Authorities. 11. In the result, the CRLMP merits no consideration and is accordingly dismissed. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 24th day of March, 2025/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 25-Mar-2025 18:06:05 CRLMP No.1409 of 2024 Page 11 of 11