Arup Kumar Ghosh vs State of West Bengal

Jayanta Kumar Biswas, J.—Grievance of the petitioners is that in the complaint dated July 5th, 2005 lodged by them with the officer -in-charge of Maidan Police Station, Kolkata no step was taken by the police authorities to make investigation, though allegations made in it made out a case of commission of cognizable offences by the respondents in this writ petition.

The admitted facts are these. The petitioners purchased a motor vehicle with the finance provided by the respondent private financier. Prescribing the terms and conditions for granting and taking loan parties duly executed an agreement, and in terms of provision thereof, on failure to repay the loan amount, the financier would have been entitled to exercise the right of taking possession of the vehicle in question. The petitioners did not repay the loan according to terms and conditions of the agreement. As a result, on July 15, 2005 respondent-financier took possession of the vehicle. At the time of taking possession an inventory list was duly prepared. It was signed by the driver of the vehicle and also by the agent of the respondent-financier. Thereafter the petitioners lodged a complaint dated July 15th, 2005 alleging that the respondents took possession of the vehicle in question.

Advocate for the petitioners argues that although provisions of the agreement gave right to the respondents to take possession of the vehicle on failure to repay the loan amount by the petitioners according to terms and conditions of the agreement, in view of the single bench decision of this Court in Amal Kumar Bose Vs. State of West Bengal and Others, , the respondents were not entitled to take possession of the vehicle, because the relevant provision of the agreement lost its force. Counsel says that after considering a similar provision in an identical agreement, the judgment relied on was given.

With due respect, I am unable to agree with the counsel. Even assuming that relevant clause of the agreement which was the subject-matter before the Court in the case cited to me was found to be bad, in my view, that decision cannot make any provision of the duly executed agreement between the parties in this case automatically bad or inoperative.

Counsel for the petitioners then argues that since the vehicle was taken away by the respondents forcibly and by engaging anti-social elements, police was under a duty or obligation to make necessary investigation, once information in the form of complaint was given by the petitioners.

I think, it will not be proper on my part to make any observation regarding the worth of the allegations made in the complaint submitted by the petitioners before the police authorities. I also think, police authorities were within their powers to assess the worth of the allegations for forming an opinion whether they made out any case of commission of any cognizable offence by the respondents.

It seems to me that in the present case police reached the conclusion that allegations made by the petitioners in their complaint did not make out any case of commission of any cognizable offence. This is presumably so, because, as I am informed by the counsel for the parties, police did not make any investigation.

In such a situation, in my view, the remedy of the petitioners was available only before the Court of the competent judicial magistrate. On their complaint, if filed, such magistrate would have been in a position to assess the merits of the allegations for making appropriate order either for directing investigation, or for taking cognizance and issuing process, or for rejecting the complaint. Those functions of the judicial magistrate are not supposed to be discharged by me silling in writ Court.

Needless to say that any findings recorded by me in exercise of my writ powers is bound to cause irreparable prejudice to the defence, in case ultimately the matter goes for a trial before the judicial magistrate or before the competent, criminal Court. If I have to make an order directing investigation by the police, it will be my duty to record the finding that allegations made in the complaint do make out a case of commission of some cognizable offence by the respondents or by the persons named in the complaint. Consequences of such findings are bound to be very very serious, and it is not unlikely that the investigating officer and the judicial magistrate or the subordinate criminal Court would be greatly influenced by such findings if recorded by me.

It is not one of those cases where 1 should exercise my writ powers for issuing a continuing mandamus. No exceptional situation, has arisen. It is one of those ordinary cases of Judging complaint by aggrieved persons before the police authorities.

For these reasons I do not. find any merit in the writ petition. Accordingly I dismiss it. There shall be no order for costs.

All parties shall act on a signed xerox copy of this dictated order and also on an urgent certified xerox copy thereof, both to be supplied on the usual undertaking.