Uttarakhand High Court

Farman vs State Of Uttarakhand & Others on 20 December, 2022

HIGH COURT OF UTTARAKHAND AT NAINITAL

        Criminal Writ Petition No. 1690 of 2020
                (Under Article 226 of the Constitution of India)


Farman                                                      ........Petitioner

                                  Versus

State of Uttarakhand & others                          ........Respondents
Present:-
      Mr. Tapan Singh, Advocate for the petitioner.
      Mr. Ranjan Ghildiyal, A.G.A. for the State.
      Mr. Anshu Kumar, Advocate for the private respondent.

Hon'ble Ravindra Maithani, J. (Oral)

The petitioner claims that he was in possession

of a shop from which he has been forcibly dispossessed

by respondent no. 4, Smt. Sahida Khatun with the help of

police officers.

2. It is the further grievance of the petitioner that

he could not lodge the report because the miscreants

were police officers. Petitioner seeks restoration of the

possession of the property as well as directions for

conducting investigation in the matter and related reliefs.

3. Heard learned counsel for the parties and

perused file.

4. According to the petitioner, he took a shop on

rent from one Ramesh Kumar. Ramesh Kumar wanted to

evict the petitioner, therefore, petitioner filed a civil suit. A

few days thereafter, one fine morning the petitioner found

his shop had been destroyed. The petitioner filed a report,

but no action was taken by concerned police station in

the matter. Somehow, the petitioner raised a temporary

structure on the property. Thereafter, another suit was

filed by respondent no. 4, claiming as if she had

purchased the property from Ramesh Kumar. The dispute

continued. Petitioner gives a history of litigation between

the parties in his petition. It is the case of the petitioner

that subsequently, respondent no. 4 along with police

force demolished the shop of the petitioner and took all

the articles with them.

5. At the very outset, the Court wanted to know

as to how this petition is maintainable. The parties have

their personal rights in dispute.

6. Learned counsel for the petitioner would

submit that if eviction of the petitioner was to be done, it

could have been done by adopting due process of law; a

decree of civil court could have been obtained, but by

police force he could not have evicted in the manner, in

which the petitioner has been evicted. It is also argued

that in fact, respondent no. 4 had also filed a suit for

permanent injunction, which has been dismissed in

default.

7. Learned counsel for the petitioner would

submit that a mandamus should be issued, so that action

may be taken against the erring police officers.

8. On behalf of respondent no. 4, learned counsel

would submit that the writ petition may not lie for

restoring possession, as also he would submit that the

writ petition cannot be entertained for lodging of FIR, for

that purpose, it is submitted that an application under

Section 156 (3) of the Code of Criminal Procedure, 1973

("the Code") may be filed. In support of his contention,

learned counsel for respondent nos. 4 & 5 has referred to

the judgment in the case of Roshina T. vs. Abdul Azeez

K.T. & others, (2019) 2 SCC 329 and M. Subramaniam &

another vs. Janaki & another, (2020) 16 SCC 728.

9. In the case of Roshina T. (Supra), the Hon'ble

Supreme Court observed as hereunder:-

"9. In our considered opinion, the writ petition filed by Respondent 1 under Articles 226/227 of the Constitution of India against the appellant before the High Court for grant of relief of restoration of the possession of the flat in question was not maintainable and the same ought to have been dismissed in limine as

being not maintainable. In other words, the High Court ought to have declined to entertain the writ petition in exercise of extraordinary jurisdiction under Articles 226/227 of the Constitution for grant of reliefs claimed therein."

10. In the case of M. Subramaniam (Supra), the

Hon'ble Supreme Court followed the principle of law as

laid down in the case of Sakiri Vasu vs. State of Uttar

Pradesh & others, (2008) 2 SCC 409, in which the Hon'ble

Supreme Court has held that in case, the FIR has not

been lodged by police, the aggrieved person may approach

to the Senior Superintendent of Police under Section 154

(3) of the Code or file an application under Section 156 (3)

of the Code.

11. In para 6 of the judgment, in the case of M.

Subramaniam (Supra), the Hon'ble Supreme Court

discussed the law as hereunder:-

"6. While it is not possible to accept the contention of the appellants on the question of locus standi, we are inclined to accept the contention that the High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the judgment of this Court in Sakiri Vasu v. State of U.P. [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 :

(2008) 1 SCC (Cri) 440] in which it has been inter alia held as under : (SCC pp. 412-14, paras 11-18) "11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that

even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

12. Thus in Mohd. Yousuf v. Afaq Jahan [Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627 : (2006) 1 SCC (Cri) 460] this Court observed : (SCC p. 631, para 11) '11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.'

13. The same view was taken by this Court in Dilawar Singh v. State (NCT of Delhi) [Dilawar Singh v. State (NCT of Delhi), (2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330] , SCC para 18. We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for

ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.

14. Section 156(3) states:

'156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.' The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha [State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC para 19 : AIR para

19).

17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution."

12. Apparently, the dispute between the parties is

with regard to a shop in-question. The grievance of the

petitioner is that he has been evicted without adopting

due process of law. During the course of argument,

reference has been made to the counter affidavit filed by

respondent nos. 2 & 3. It is argued on behalf of the

petitioner that the police allegedly took action under the

direction of Joint Magistrate. It is argued that Joint

Magistrate is not empowered to order such eviction.

13. It is a writ petition, which is filed under Article

226 of the Constitution of India. It is a Public Law

remedy. The redressal which the petitioner seeks falls