Calcutta High Court (Appellete Side)
Sri Asim Nandy vs The State Of West Bengal & Ors on 15 June, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
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WP 29257 (W) of 2008
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13 15.06.2016 CAN 4104 of 2015
dd
Sri Asim Nandy
Vs
The State of West Bengal & Ors.
Mr. Sajal Chel
Mr. Bhola Nath Ghosh
Mr. Atanu Chakraborty
... ... For the petitioner
Mr. Sidhartha Banerjee
Mr. Amitava Mitra
... ... For the respondent no. 7
Mr. N. C. Behani ... ...For the State Mr. Pantu Deb Roy Mr. Subrata Guha Biswas .. ...For the respondent no. 6 Mr. Chel, learned advocate appears on behalf of the petitioner and submits a car purchased under hire purchase agreement with the respondent no. 7 was forcibly taken away by the financier upon assaulting the petitioner on 6th November, 2008. The petitioner filed this writ petition and obtained order dated 2nd February, 2009. The reasons for direction being made therein are set out below :-
"Since it has been fairly admitted that private respondent nos. 7 and 8 obtained possession of the vehicle without following the due process of law and only relying on the terms of the agreement with the writ petitioner, the matter has to be looked into. The 2 respondent nos. 7 & 8 submit that the vehicle had been sold in the month of November, 2008 and a consideration of Rs. 1.60 lacs approximately has been received. The respondent nos. 7 & 8 are directed to put in such sum of Rs. 1.60 lacs with the Registrar General and the Registrar General is directed to put in such money by way of a fixed deposit for the shortest possible term renewable for such short duration, pending orders of Court."
The petitioner has prayed for orders on allegation of police inaction. The petitioner seeks directions upon the respondent nos. 4 and 5 to take steps against the private respondent no. 7 as per complaint dated 10th November, 2008 and to recover vehicle bearing registration, Mr. Chel submits, W.B. 16T/1567. Mr. Chel submits further, the police Authorities have not done anything. They have not even registered a case.
Mr. Behani, learned advocate appears on behalf of the State and submits, he awaits further instructions. Instructions had at the present time are to the effect that the financier claimed ownership of the vehicle under hire purchase agreement and, therefore, till now no steps had been taken.
Mr. Banerjee, learned advocate appears on behalf of the private respondent and relies on judgments of the Supreme Court and one delivered by a learned Single Judge of this Court. He relies on the case of K. A. Mathai alias Babu & Anr. vs. Kora Bibbikutty & Anr. reported in (1996) 7 SCC 212 to submit, the Supreme Court had declared, a hire purchase agreement 3 normally drawn would have contained the clause that in the event of the failure to make payment of instalment(s) the financier had the right to resume possession of the vehicle. It, thus, cannot be said the financier in that case having, with the aid of the appellants, taken possession of the vehicle from the complainant, the appellants had committed the offence of theft and that too, with the requisite mens rea and requisite dishonest intention. He then relies on the case of Aleque Padamsee & Ors. vs. Union of India reported in (2007) 6 SCC 171 to, in particular, paragraphs 7 and 8 therein to submit that a person alleging commission of cognizable offence and consequent police inaction had to seek remedy under the provisions of Section 190 read with Section 200 of the Criminal Procedure Code, 1973. He submits, therefore, the writ petition was not maintainable. He also relies on an unreported judgment dated 13th August, 2014 delivered in the case of Basim Bhattacharya vs. Union of India & Ors. by a learned Single Judge of this Court which in relying on, inter alia, K.A. Mathai (supra) dismissed the writ petition alleging police inaction.
K.A. Mathai (supra) is a case where the Supreme Court had observed that in the case of resumption of possession under hire purchase agreement, where hire purchase agreements are normally drawn to contain the resumption clause, it could not be said that the appellants in the case before the said Court, in aiding the financier to repossess the vehicle, had committed the 4 offence of theft with requisite mens rea and requisite dishonest intention. The allegation of offence, as it appears form the said judgment, was brought against the appellants who were the driver and the registered owner of the bus as separate from the financier under a hire purchase agreement. That case is clearly not applicable to the challenge of the petitioner since in the writ petition the petitioner alleges the financier had committed offence of assault and hijack of the vehicle. In Aleque Padamsee (supra) the Supreme Court while dealing with a writ petition made under Article 32 of the Constitution of India disposed of the said same with the following directions :-
"8. The writ petitions are finally disposed of with the following directions :
(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.
(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.
(3) So far as non-grant of sanction aspect is concerned, it is for the Government concerned to deal with the prayer.
The Government concerned would do well to deal with the matter within three months from the date of receipt of this order.
(4) We make it clear that we have not expressed any opinion on the merits of the case."
So far as Asim Bhattacharya (supra) is concerned, in that case 5 the police had registered a FIR and also submitted final report. This Court is of the view the above cases have no application to the case of the petitioner.
Since by order dated 2nd February, 2009 there was record of it having been fairly admitted that private respondent nos. 7 and 8 obtained possession of the vehicle without following the due process of law but, only by relying on the terms of the agreement with the writ petitioner and thus the matter had to be looked into, the matter is to be looked into. The passage of time and the inaction on the part of the police, in the facts and circumstances of the case, is sufficient for this Court to direct the police to look into the matter instead of turning away the petitioner to seek remedy under the said provisions of the Code of Criminal Procedure, from the concerned Magistrate. The police will look into the complaint dated 10th November, 2008, copy annexed and appears at page 27 of the writ petition, in which allegations have been made that the petitioner went several times to Serampore Police Station for FIR but the said P.S. under the jurisdiction of the addressee did not take any complaint for action.
Either in the event police find an offence had been committed and they initiate proceedings against the accused or they are inclined to file a final report, they shall, upon notice to the parties, cause mention before the Court then having determination over the subject, for appropriate directions being 6 made regarding the deposit held by the Registrar General.
The writ petition is disposed of. Connected application is also disposed of in terms of this order.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Arindam Sinha, J.) 7