Kastubanand Panda vs State Of Uttarakhand

The instant writ petition under Article 226 of the Constitution of India has been preferred to direct respondent nos. 1 and 2 for providing protection to the petitioner from the private respondent no.3

Heard learned counsel for the petitioner, learned Brief Holder and perused the records.

Briefly stated, according to the petitioner, he purchased a piece of land by means of a registered sale-deed on 13.01.2017 from one Gurmail Singh. He got the land changed for residential purpose and started raising construction over it. But respondent no.3, in order to grab that property filed a civil suit and obtained an ex-parte injunction, which was, subsequently, vacated. Aggrieved the respondent no.3, filed Misc. Civil Appeal No. 38 of 2015, which was also dismissed.

According to the petitioner after rejection of his civil appeal, respondent no.3 has no right or authority, to create hindrance in the construction that is being carried out by the petitioner, but he has been continuously harassing and pressurising the petitioner. The petitioner moved a complaint before the Police Administration and after inspection certain directions were issued but police is not taking any action. Despite, representation having been made to Inspector General of Police, on 15.10.2018, according to the petitioner, Police is not taking any action. In the writ petition, some criminal antecedent of respondent no.3 has also been averred. The following reliefs are sought in the writ petition:-

Issue a writ order or direction in the nature of mandamus commanding and directing the respondent nos. 1 & 2 to provide adequate police protection to the petitioner from the private respondent no.3 and his other associates.

Issue a writ order or direction in the nature of mandamus commanding and directing the respondent nos. 1 & 2 to restrain the private respondent no.3 and his associates from interfering with the construction work and possession of the petitioner over his property.

Issue any other order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

State has filed a detailed counter affidavit. According to it, parties have dispute over a piece of land; a civil suit is pending; in order to prevent breach of peace, proceeding under Section 107/116 of the Code of the Criminal Procedure, 1973 (hereinafter referred to as "the Code") have already been initiated. According to the State, the only remedy, which may be available to the petitioner is to approach the Court of competent jurisdiction and the jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked for the purpose.

Learned counsel for the petitioner would urge that in the country, where Rule of Law prevails, life and liberty of a person cannot be put into peril at the hands of some person who ignores law, in order to grab the property of others. It is argued that instant is the case in which the petitioner, despite owner in possession of the land, is being harassed by respondent no.3.

Police is not taking any action despite directions of the Superior Authorities; F.I.R on various representation of the petitioner has not been lodged, therefore, it is a case, in which, according to learned counsel, the jurisdiction under Article 226 of the Constitution of India has to be invoked and directions need to be issued for protection of the petitioner.

On the other hand, learned State counsel would argue that parties have a civil dispute which is already pending in the Court. There is no threat perception to the petitioner. Parties have already been challaned under Sections 107/116 of the Code. Therefore, there is no reason to make any interference at this stage.

Undoubtedly, right to life and liberty is one of the precious rights conferred by the Constitution. This right is protected by the Constitution, as well. There are various statues and laws, which ensures that this right to life and liberty is not curtailed without the procedure established by the law.

Here is the case, where the parties are in dispute over a piece of land. The order passed in Misc. Civil Appeal No. 38 of 2015 dated 20.07.2018 by the court of learned IInd Additional District Judge Kashipur, District Udham Singh Nagar is field as, Annexure No.1. It transpires that temporary injunction application filed in original suit by the respondent no.3 was rejected, and against it, Civil appeal was also dismissed. Petitioner has also filed annexure nos. 2 and 3 with regard to the representations made by him relating to alleged interference made by respondent no.3 Along with the rejoinder affidavit a report of ROP Berheni, Police Station Bazpur and a communication made by the petitioner has also been referred to. In the report of ROP Berheni dispute between the parties over the land has been confirmed but according to it, the respondent no.3 is in the possession over the land in question.

Learned counsel for the petitioner would also refer to the criminal antecedent of respondent no.3. Learned counsel would argue that with the use of un-lawful means, defying the law, the respondent is adamant to take possession of the land.

In case an F.I.R is not lodged by the police, of a cognizable offence, as required under Section 154 of the Code, there are provisions which are given in the Code itself. Apart from approaching the higher authorities, Section 156 of sub-section (3) of the Code, also provides a mechanism, in which, the Court of competent jurisdiction may order investigation.

In the case of Sakro Vasu Vs. State of Uttar Pradesh and others, 2008 (2) SCC 409, the Supreme Court when confronted with a situation where the High Court was approached on the ground that the police had not lodged the F.I.R, Hon'ble Supreme Court observed, as hereunder:-

"24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision.

We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his altering remedy, first under Section 154(3) and Section 36 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3)."

The Court should refrain from making any observation at this stage because the matter in criminal jurisdiction as well as civil jurisdiction between the petitioner and respondent no.3, is pending. In the instant matter it cannot be said that the police is not taking any action. Parties have been challaned under Sections, 107 and 116 of the Code. A provision, which is generally is invoked when breach of peace is apprehended; in case any F.I.R of the petitioner is not lodged, he may definitely take recourse to the other provisions of the code, as may be adviced.

Insofar as, the intention of the respondent no.3 to grab the property of the petitioner is concerned, as stated, the matter is pending in the civil court. Who is in possession or who is the owner of the land, are such factual aspects, which cannot be examined in the writ jurisdiction of this Court. As also in case any injunction or status-quo order or other order of the civil court is not complied with by any of the parties to the litigation, it may be brought to the notice of the court concerned for appropriate orders.

In view of the above, this Court is of the view that this is not a case in which interference is warranted and the petition deserves to be dismissed.

The petition is dismissed.