Gauhati High Court
Rina Khatun vs The State Of Assam And 5 Ors on 7 December, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010238202022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7536/2022
RINA KHATUN
W/O. DILBAR MOLLAH, VILL. JHAGRAPAR PART III, P.S. DHUBRI, P.O.
JHAGRARPAR, DIST. DHUBRI, ASSAM, PIN-783325.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE SECRETARY, HOME DEPTT., GOVT. OF ASSAM, DISPUR,
GUWAHATI-05.
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-07.
3:THE SUPDT. OF POLICE
DHUBRI
P.S. DHUBRI
P.O. DHUBRI
DIST. DHUBRI
ASSAM
PIN-783301.
4:THE CIRCLE INSPECTOR
DHUBRI
P.O. AND P.S. DHUBRI
DIST. DHUBRI
PIN-783301.
Page No.# 2/7
5:THE OFFICER IN CHARGE OF DHUBRI SADAR POLICE STATION
DHUBRI
P.O. AND DIST. DHUBRI
ASSAM
PIN-783301.
6:INVESTIGATING OFFICERS OF THE FOLLOWING CASES-
I) 240/2018
U/S. 447/352/506/34 IPC R/W. SECTION 5 OF ASSAM LAND GRABBING ACT.
II) 491/2018 U/S 120(B)/447/448/352/506 IPC.
III) 698/2018 U/S. 447/323/354/294/506/34 IPC
IV) 715/2018 U/S. 120(B)/457/380/427/506 IPC
V) 995/2018 U/S 120(B)/427/379/323/354/506 IPC
VI) 247/2020 U/S 447/427/379/294/354/34 IPC
VII) 257/2022 U/S 147/148/149/448/325/326/307/354/427/380 IPC
Advocate for the Petitioner : MR J MOLLAH
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 07.12.2022 Heard Mr. J.Mollah, learned counsel for the petitioner as well as Mr. M. Chetia, leaned Govt. Advocate appearing for all the respondents.
2. The case of the petitioner is that her husband had purchased a plot of land from the land owner by giving him an advance on condition that the remaining amount will be paid at the time of executing sale-deed. The parties applied for sale permission and when the husband of the petitioner started a construction of a boundary wall, local people including the owners of the neighbouring plot of land raised objection and therefore, the husband of the petitioner lodged an Page No.# 3/7 FIR before the Dhubri Police station. Some portion of the land was sold and on the remaining portion of land, the husband of the petitioner had constructed semi-permanent Assam Type houses and started his business of hardware shop, godown etc., and some part of the houses were given on rent. It is projected that as there was delay in obtaining sale permission and in the execution of the sale deed. Therefore, taking advantage of the situation, a gang of land mafia had forcefully taken over the land, looted all properties after demolishing the houses in broad daylight. It is alleged that the entire incident had happened in the presence of the police personnel and public, but the police neither arrested the criminals nor resisted the act of the criminals. Accordingly, the husband of the petitioner lodged several FIRs which were registered as Dhubri PS Nos.240/2018, 491/2018, 698/2018, 715/2018, 995/2018, 247/2020, 257/2022 respectively. However, it is projected that there was no progress in the investigation as the investigation was not done properly by arresting the accused persons or recovering the articles.
3. The learned counsel for the petitioner has submitted that as the criminals were influenced by powerful political hands, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for entrusting the above referred cases to Crime Branch/CID/SIT to investigate the matter. The learned counsel for the petitioner also submits that under Article 226 of the Constitution of India, the Court has power to direct the Dhubri Police Station to insert proper sections of law; to file an FIR and then investigate the matter properly by arresting the accused and recovering the properties which are lost/damaged. In support of the submissions, learned counsel for the petitioner has referred to the case of (i) Babubhai Jamnadas Patel v. State of Gujarat Page No.# 4/7 &Ors., 2010 Crl.LJ 2249, (ii) Lal Singh & Ors. v. State of U.P. AIR 2004 SC 299 ,
(iii) S.R. Ejaz... v. T.N. Handloom Weavers' Cooperative Society Ltd.,..... (2002) 3 SCC 137, (iv) T.C. Thangaraj... v. Engammal & Ors., (2011) 12 SCC 328 and (v) Babubhai v. State of Gujarat & Ors. (2010) 12 SCC 254.
4. The learned State counsel has produced a copy of instructions dated 01.12.2022, received from the Office of Superintendent of Police, Dhubri, disclosing the up-to-date status of the cases, which reads as follows:
SL. CASE REFERENCE STATUS Of REMARKS
CASE
NO.
1. Dhubri PS Case No. 240/2018 u/s FR As civil dispute
447/352/506/34 IPC No.1090/2019
dated
31/12/2019
2. Dhubri PS Case No. 491/2018 u/s FR As insufficient
120B/447/448/352/354/506 IPC No.314/2018 evidence
dated
30/04/2018
3. Dhubri PS Case No.698/2018 u/s FR As insufficient
447/323/354/294/506/34 IPC No.636/2018 evidence
dated
27/08/2018
4. Dhubri PS Case No.715/2018 u/s FR As insufficient
120B/457/380/427/506 IPC No.551/2018 evidence
dated
28/07/2018
5. Dhubri PS Case No.995/2018 u/s CS No. U/s 143/448/354 IPC
120B/427/379/323/354/506 IPC 599/2020 dated against accused (1)
05/10/2020 Chand Miah, S/o
Late Mohammad Ali
of village Jhagrarpar
Part-IV and (2)
Hussain Ali S/o Abdul
Kader Dewani of
villagheJhagrarpart
Page No.# 5/7
Part-I, both of PS &
Dist. Dhubri
(Assam).
6. Dhubri PS Case No. 247/2020 u/s FR No. 91/2020 As insufficient
447/427/379/294/354/34 IPC dated evidence
25/02/2020
7. Dhubri PS Case No. 257/2022 u/s CS No. U/s
147/148/149/448/325/326/307/354/427/380 290/2022 dated 147/148/149/448/32
IPC 30/06/2022 3/325/354/506 IPC
against accused (1)
Rohim Badshah S/o
Chand Miah, (2)
Chand Miah, S/o
Late Mohammad Ali
(3) Hossain Ali Sk @
Hossain Ali, S/o
Abdul Kader Dewani,
(4) Lal Chand Ali,
S/o Osman Goni (5)
Mominur Islam S/o
Lal Chand Ali all are
of village Jhagrarpar
Part-I (6) Rafiqul
Islam S/o Late
Imtiaz Ali of village
Bhasanirchar, all are
of PS & Dist. Dhubri
(Assam)
5. From the above it appears that in five out of seven cases, final report has been submitted, exonerating the accused persons on the ground that either there is a civil dispute or that there was insufficient evidence. Charge sheet has been submitted only in two cases.
6. It is noted that the cases cited by the learned counsel for the petitioner are not the authority on the point that under Article 226 of the Constitution of India, directions can be given by the High Court to the Police to register a case under a particular manner or to investigate a case in a particular manner. The said orders were passed in exercise of criminal jurisdiction. On the contradict, the Page No.# 6/7 Govt. Advocate has referred to the case of Sakiri Vasu Vs. State of Uttar Pradesh and Others (2008) 2 SCC 409 and Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and Others (2016) 6 SCC 277, wherein, the Supreme Court of India has deprecated the exercise of power under Article 226 of the Constitution of India to order investigation, except in rare and exceptional cases.
7. Be that as it may, there are provisions of Code of Criminal Procedure which can be exercised by the aggrieved informant/petitioner if the FIR lodged by the informant/petitioner has resulted in the final report exonerating the accused persons or if there is no progress of investigation. The petitioner may be well advised to avail legal remedy as may be available under the appropriate law, if she is agreed by the submission of the final report in five police cases as referred above. As the charge sheet has been submitted in two cases, the petitioner may be well advised to seek appropriate remedy as may be available to her in law as the Court trying the alleged offence is not powerless to add appropriate sections of law to charge the accused.
8. We refer to the provisions of Section 156 (3) Cr.PC, which empowers the Magistrate that if he is prima facie satisfied, he can, (i) direct registration of FIR,
(ii) if an FIR has already been registered, issue a direction for proper investigation and (iii) to monitor the investigation.
9. As alternative and efficacious remedy has been provided for in law, which has not been exhausted by the petitioner, this Court in exercise of power under Article 226 of the Constitution of India shall be a loath to issue direction to the Page No.# 7/7 police with regard to investigation.
10. Therefore, the Court does not find any merit in this writ petition and the same is dismissed. However, the petitioner is at liberty to avail appropriate remedy as she may be so advised.
JUDGE Comparing Assistant