The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No.1675 of 2024 (In the matter of application under Articles 226 and 227 of the Constitution of India). Saraswati Dhal … Petitioner -versus- State of Odisha and others … Opposite Parties For Petitioner : Mr. S.S. Satapathy, Advocate For Opposite Party : Mr. R.B. Mishra, Addl. PP CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:29.01.2025(ORAL) G. Satapathy, J. 1. This Petitioner by way of this criminal misc petition has invoked the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India by praying inter-alia the following:- “It is therefore prayed that your this Hon’ble Court may graciously be pleased to admit the Writ Application issue notice to the Opp. Party Authorities asking show as to why appropriate writ shall not be issued against them for their illegal, unlawful act as well as the apathy and if they failed to show cause or CRLMP No.1675 of 2024 Page 1 of 10 show direction(s)/ order(s) be made absolute; insufficient cause, the writ(s)/ to as And may further be pleased to issue notice to the private Opp. Parties to show cause appropriate shall not be writ(s)/direction(s)/order(s) issued and if the Opp. Parties fail to show cause or show insufficient cause, the writ(s)/ direction(s)/order(s) shall be made absolute against the private Opp. Parties; why And may further be pleased to constitute level committee/commission of inquiry to find the facts in its proper prospective and to submit the report and recommendation in the matter; independent high And may further be pleased to award reasonable/adequate compensation in favour of the Petitioner and her family members for such mental agony and torture of both mental and physical so also loss of money and time sustained by them. Issue specific direction for payment of such compensation to the State from its fund and/or from the Officers concern involved in such excess action which is perse illegal and opposed to law. And may further be pleased to direct the higher authority to initiate D.P. against the police personnel who have acted with in excess to their lawful jurisdiction by taking advantage of their official position.
Legal Reasoning
And may further be pleased to direct the the FIR dtd. O.P. Party No.-4 register 06.02.2024, and dtd. 09.03.2024 of the Petitioner and her daughter-in-law under Annexure-8 Series and to proceed further in accordance with law. And further be pleased to issue a writ of prohibition prohibiting the Opp. Parties from CRLMP No.1675 of 2024 Page 2 of 10 doing any activities which the law does not permit them to do so.” 2.
Legal Reasoning
In the course of hearing, Mr. Sasanka Sekhar Satapathy, learned counsel for the Petitioner by relying upon the decision in Sube Singh Vrs. State of Haryana and others; (2006) 3 SCC 178 and reiterating the facts, submits that the Petitioner of course has other remedy for some of the relief claimed by her, but the grievance of the Petitioner is against the excess committed by the Police in a matter of criminal complaint and the Petitioner having right to remedy has approached this Court in the CRLMP. He by drawing attention of the Court to the facts of the relied on case submits that although the facts of the present case is not exactly similar, but akin to some extent since the facts of the present case resembles with the decision relied on, the present CRLMP may kindly be admitted and notice be issued to the other side. 2.1. On the contrary, Mr. R.B. Mishra, learned Addl. Public Prosecutor while inviting attention of the Court to the prayer of the Petitioner submits that there CRLMP No.1675 of 2024 Page 3 of 10 is multiple prayer, but such multiple prayer can be agitated before the appropriate forum and the present proceeding before this Court is not maintainable. 3. In order to address the rival submissions, this Court considers it apt to reiterate the facts as submitted by the learned counsel for the Petitioner which are reproduced as under:- of that SHG such thereby, approached “the Petitioner was a member of SHG and she took some loan from such SHG for installing a Hatchery unit, but subsequently the President and she noticed Secretary have misappropriated the fund of the SHG and the Police, she however, the Police was managed by the President, Secretary and some members of the SHG and they by influencing the Police got registered a case against the Petitioner in which the Petitioner and her family members were called to the Police Station and kept unauthorizedly there and forced the Petitioner to repay the loan by retaining written undertaking.” On analyzing the above narration of facts on the backdrop of the prayer as advanced by the Petitioner, it seems that the Petitioner has not only sought for monetary compensation for harassment, but CRLMP No.1675 of 2024 Page 4 of 10 also has sought for inquiry into the matter; to initiate DP against erring Police Officials; and to direct OP No.4 to register FIR dated 06.02.2024 and dated 09.03.2024 of the Petitioner and her daughter-in-law. Admittedly, the Petitioner is seeking remedy against the Police for inaction and excess committed by it, but fact remains that there are equivalent provisions provided in Bharatiya Nyaya Surakhsya Sanhita (In short the “BNSS”), 2023 which came into force w.e.f 01.07.2024 for the efficacious remedy for the grievance of the Petitioner. Further, Sec. 175(3) of BNSS which corresponds to Sec. 156(3) of CrPC, prescribes that 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. 4. In this case, on reverting to the prayer of the Petitioner to direct OP No.4 to register an FIR on the complaint of the Petitioner dated 06.02.2024 and CRLMP No.1675 of 2024 Page 5 of 10 on the complaint of her daughter-in-law dated 09.03.2024, it appears that the Petitioner has never approached the jurisdictional Magistrate against non- registration of FIR by following the procedure of law. In this regard, this Court considers it apt and profitable to refer to the decision in Sakiri Vasu v. State of Uttar Pradesh and others; (2008) 2 SCC 409, wherein at Paragraph-27, the Apex Court 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 lies under grievance, the remedy 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.” CRLMP No.1675 of 2024 Page 6 of 10 5. The aforesaid decision of the Apex Court in Sakiri Vasu(supra) has been subsequently followed in Sudhir Bhaskarrao Tambe vrs. Hemant Yashwant Dhage and others; (2016) 6 SCC 277, wherein at paragraphs-2 & 3 the Apex Court has held as under:- registered, “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, or having been 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 to Constitution of India, but approach Magistrate the 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 it discretion, 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. deems he if CRLMP No.1675 of 2024 Page 7 of 10 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 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”. concerned 6. Further, the other prayer of the Petitioner as advanced to direct the State to conduct an inquiry to find out the facts in this case may not be considered to be reasonable in view of the fact that there is disputed facts involved between the parties and more particularly, the facts as narrated by the Petitioner during the course of submission itself suggests that there is a dispute amongst the members of the SHG and accordingly, both the parties have approached the Police to register the FIR and a case has been registered against the Petitioner. It is also not in CRLMP No.1675 of 2024 Page 8 of 10 dispute that the Petitioner has taken loan from the SHG and it reveals a contractual matter between the parties and such grievance of the Petitioner can be agitated before the competent Court of law. In regard to seeking compensation against the Police excesses, the party has to establish the fact in a precise and appropriate manner, but the narration of facts as made for the Petitioner itself discloses that some amount of rancor and hostility was/is existing between the parties in which the Police has been approached, but of course the claim of the Petitioner can be agitated in a proceeding before the competent Civil Court for tortuous liability for the excess if any committed by the Police. 7. It is true that the Petitioner has relied upon the decision in Sube Singh(supra), but as per his own contention, the facts involved in the relied on case is somehow different from the facts involved in this case, but custodial violence has been taken into account in the relied on case and in this case, if the Petitioner establishes the custodial violence, he can approach the CRLMP No.1675 of 2024 Page 9 of 10 concerned Court for tortuous liability. In the aforesaid background of facts and circumstance and taking into account the law laid down by the Apex Court in Sakiri Vasu(supra) & Sudhir Bhaskarrao Tambe(supra), especially when the Petitioner has not approached the Jurisdictional Magistrate in terms of the equivalent provisions as provided in BNSS, this Court considers that the present proceeding at the inception before this Court is not maintainable. 8. In the result, the CRLMP stands dismissed on contest, but in the circumstance, there is no order as to costs. However, liberty is granted to the Petitioner to approach appropriate forum for seeking redressal of her grievance. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 31-Jan-2025 16:15:40 Orissa High Court, Cuttack, Dated the 29th day of January, 2025/Priyajit CRLMP No.1675 of 2024 Page 10 of 10