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Judgment
The writ petition was moved on an allegation that the police were not taking action in respect of a complaint made to the Commissioner of Police,
Asansol-Burdwan. Even though there are allegations that the complaint was not in reality made or that the seal affixed on it showing receipt is
spurious, after the intervention of the learned Senior Standing Counsel a First Information Report (FIR) has been registered. Â Therefore, the original
cause of action of the writ petitioner that the police were not taking action is no longer there.
The writ petitioner has relied upon the judgment of this Court in Lalita Kumari vs. Government of Uttar Pradesh reported in (2014)2 SCC 1, inter alia,
at paragraph 120 of the report to argue that if an enquiry discloses the commission is a cognizable offence, the FIR must be registered and further that
action must be taken against the erring officer who did not take the FIR. Since the receipt of the complaint is itself disputed, I do not believe that this
judgment is applicable to the present case. Accordingly, with great respect to the learned advocate appearing on behalf of the writ petitioner I believe
that his prayer for taking action against the police officers cannot be allowed since whether they were “erring or not†cannot be decided without
affidavits and then too, on disputed question of facts. Once the present cause of action as aforesaid has ceased to exceed, such matter cannot be
agitated for academic purpose. The writ petitioner has also pointed out his apprehension in paragraphs 11A, 12 and 13 of the writ petition, which are
set out hereinbelow and has sought investigation by an independent agency:
“That your petitioner submits that he including his family members have been constantly facing threats by the agents of the private respondents so
that the petitioner may not continue his political position and to shift towards the Trimool Congress Political party and not to participate in the
Panchayet Election related issue otherwise his life including his family may be at stake and accordingly a proper police protection may be afforded to
him including his family.
That your petitioner submits that since the allegations are againstthe highly influential heavy weight politicians including Mayor Asansol and MLA
being respondent No.6 who are part of the State and others are either councilor of the ruling party and/or post holder who are very much influential
and in a dominant position to influence the investigation, hence it will be necessary for the ends of justice to take cognizance of the offence and to
entrust the investigation to an independent agency to unearth the truth.
That your petitioner submits that the State Police in this issuecannot investigate impartially because of extraneous influences might have been
taking place and this Hon’ble Court may direct to carry out investigation beyond the control of the state police.â€
The allegations relate to a particular political party in power but unfortunately, the registered political party has not been made a respondent in this
case. I find it reprehensible that allegations are made against a party who is not arrayed as respondent but on the basis of such allegations against a
party rather than the persons who allegedly are oppressing the petitioner such prayer has been made. Without making such a political party a party
respondent, the allegations against it cannot be countenanced. Â Paragraph 11A has not been separately affirmed except perhaps as a submission in
the affidavit accompanying the petition. This is where the writ petitioner has alleged that he faces a threat to his life and that this is because he is
being threatened not to participate in the Panchayat Election.
Such a statement ought to have been affirmed by taking responsibility for it. In terms of Order 6 Rule XV of the Code of Civil Procedure read with
Rule 36 of Appendix IV to the Appellate Side Rules and Part II Chapter IV of the Appellate Side Rules relating to affirmation of affidavits, the writ
petitioner is to state how much of any statement is true to his knowledge, which information is derived from whom and what he believes it to be true
or whether such statement is true to his knowledge or belief. When a writ petitioner makes a serious allegation like this of which he must have
personal knowledge, if true, but chooses to affirm it as a submission, “he fails to take responsibility for itâ€.
Therefore, I must hold with reluctance that such allegation is not inspired by facts but by a subjective opinion. The writ court cannot pass orders on the
basis of the subjective opinion of the petitioner. From the records I find that the police have registered FIR and as yet it cannot be said that the FIR as
registered has not been proceeded with. Naturally if such a situation arises, the writ petitioner has the liberty to come back to this Court.
I, therefore, dispose of the present writ petition as infructuous after recording my displeasure at such shoddy drafting which is the best interpretation I
can put on the petition unless I hold that it is politically motivated which I do not wish to infer. Let the copy of the FIR filed in court today be kept on
records. The gesture of the learned Senior Standing Counsel is appreciated. Since no affidavits have been called for, allegations made in the writ
petition are not admitted.There will be no order as to costs. Urgent certified website copy of this order, if applied for, be made available to the parties
upon compliance with the requisite formalities.