Nityananda Saha Vs. the State of West Bengal and ors. - Court Judgment

Excerpt:
1. the petitioner in this art.226 petition dated june 15, 2011 is seeking the following principal relief: “a) issue a writ in the nature of mandamus commanding the respondent police authorities more particularly the respondent nos. 2,3 and 4 to conduct an investigation into the alleged misdeeds committed by the respondents nos. 5,6,7 and 8 and to submit a report before this hon’ble court.” 2. mr bhattacharjee appearing for the petitioner submits as follows. the petitioner sought to be ejected from his house by his daughter-in-law has submitted a complaint to the officer in charge of the police station concerned on may 2, 2010. inspite of the complaint the officer in charge has failed and neglected to take steps against the daughter-in-law. 3. according to mr bhattacharjee, in view of the division bench decision he is relying on, the petitioner is entitled to approach the high court under art.226 straight seeking a mandamus commanding the officer in charge of the police station to take steps on the basis of the complaint. 4. the cited division bench decision dated april 13, 2011 in a.s.t. no.115 of 2011 (pranesh chandra acharya & anr. v. the state of west bengal & ors.) is quoted below: “instead of taking the application for appropriate order, we have taken up the appeal itself for final hearing with the consent of the learned advocates for the parties by treating the same as on day’s list. 5. an undertaking was filed by learned advocate before this court on behalf of the son and daughter-in-law of the appellant, being the respondent nos. 5 and 6 in the appeal and both the son and the daughter-in-law submitted through their learned advocate that they will look after their parents in every possible way and will not disturb them in any manner whatsoever so that the appellants herein can enjoy the property in question peacefully. 6. after keeping this undertaking on record we only direct the parents to reside at the said premises and the private respondents shall not create any trouble or disturbance with regard to the enjoyment of the property in any manner whatsoever. 7.  we further make it very clear that if there is any disturbance created or caused to be created by the son and the daughter-in-law, the parents/appellants herein shall be at liberty to lodge a complaint before the local police station and the local police station is directed to ensure all possible helps to the appellant to enjoy their property peacefully in accordance with the provision of law.  the appeal is disposed of on the above terms.” 8.  i am unable to see how the decision of the division bench supports the proposition that since it has been alleged that the officer in charge of the police station did not take any action, the petitioner is entitled to approach the high court under art.226 straight seeking a mandamus commanding the officer in charge to take steps on the basis of the complaint. 9.  in my view, making the above-noted allegation of police inaction, the petitioner is not entitled to approach the high court under art.226. he ought to have gone to the criminal court with his complaint examining which the criminal court could consider the question of passing an order either under s.156(3) or s.190 crpc. in the name of police inaction power under art.226 is not to be exercised for passing an order under s.156(3) crpc. the officer in charge was within his jurisdiction to decide not to register any fir on the basis of the allegation. his subjective decision cannot be judicially reviewed by the high court under art.226.   10. for these reasons, the petition is dismissed. 11. no costs. certified xerox.

Judgment:

1. The petitioner in this art.226 petition dated June 15, 2011 is seeking the following principal relief:

“a) Issue a writ in the nature of Mandamus commanding the Respondent police authorities more particularly the respondent nos. 2,3 and 4 to conduct an investigation into the alleged misdeeds committed by the respondents nos. 5,6,7 and 8 and to submit a report before this Hon’ble Court.”

2. Mr Bhattacharjee appearing for the petitioner submits as follows. The petitioner sought to be ejected from his house by his daughter-in-law has submitted a complaint to the officer in charge of the police station concerned on May 2, 2010. Inspite of the complaint the officer in charge has failed and neglected to take steps against the daughter-in-law.

3. According to Mr Bhattacharjee, in view of the Division Bench decision he is relying on, the petitioner is entitled to approach the High Court under art.226 straight seeking a mandamus commanding the officer in charge of the police station to take steps on the basis of the complaint.

4. The cited Division Bench decision dated April 13, 2011 in A.S.T. No.115 of 2011 (Pranesh Chandra Acharya & Anr. v. The State of West Bengal & Ors.) is quoted below:

“Instead of taking the application for appropriate order, we have taken up the appeal itself for final hearing with the consent of the Learned Advocates for the parties by treating the same as on day’s list.

5. An undertaking was filed by Learned Advocate before this Court on behalf of the son and daughter-in-law of the appellant, being the respondent nos. 5 and 6 in the appeal and both the son and the daughter-in-law submitted through their Learned Advocate that they will look after their parents in every possible way and will not disturb them in any manner whatsoever so that the appellants herein can enjoy the property in question peacefully.

6. After keeping this undertaking on record we only direct the parents to reside at the said premises and the private respondents shall not create any trouble or disturbance with regard to the enjoyment of the property in any manner whatsoever.

7.  We further make it very clear that if there is any disturbance created or caused to be created by the son and the daughter-in-law, the parents/appellants herein shall be at liberty to lodge a complaint before the local police station and the local police station is directed to ensure all possible helps to the appellant to enjoy their property peacefully in accordance with the provision of law.

 The appeal is disposed of on the above terms.”

8.  I am unable to see how the decision of the Division Bench supports the proposition that since it has been alleged that the officer in charge of the police station did not take any action, the petitioner is entitled to approach the High Court under art.226 straight seeking a mandamus commanding the officer in charge to take steps on the basis of the complaint.

9.  In my view, making the above-noted allegation of police inaction, the petitioner is not entitled to approach the High Court under art.226. He ought to have gone to the Criminal Court with his complaint examining which the Criminal Court could consider the question of passing an order either under s.156(3) or s.190 CrPC. In the name of police inaction power under art.226 is not to be exercised for passing an order under s.156(3) CrPC. The officer in charge was within his jurisdiction to decide not to register any FIR on the basis of the allegation. His subjective decision cannot be judicially reviewed by the High Court under art.226.  

10. For these reasons, the petition is dismissed.

11. No costs. Certified xerox.