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Judgment
Sunil Hali, J.—The petitioner has filed this writ petition seeking a direction to respondents No. 1 to 3 to register a FIR u/s 302 RPC against
one Shri Vijay Paul Singh, SHO Police Station Pacca Danga, Jammu in connection with the custodial death of her husband and also initiate
departmental proceedings against him. It is alleged that respondent No. 4 without any authority of law arrested the husband of the petitioner and as
a consequence of the arrest, petitioners husband died in police custody. The allegation further reveals that on account of physical violence having
been committed against the husband of the petitioner he succumbed to the injuries and died.
This Court vide order dated 11.8.2005 directed the Chief Judicial Magistrate Jammu to hold an enquiry against the custodial death of Mr. M.L.
Gandotra, the deceased. The Chief Judicial Magistrate in pursuant to this direction, conducted enquiry. He recorded findings on two aspects (a)
cause of death and (b) lawful authority of the SHO to arrest the deceased. In respect of cause of death, Chief Judicial Magistrate clearly stated
that the deceased has died on account of heart attack. Relying upon the statement of the Doctor it has been said that there are no marks of
violence found on the body of the deceased. In respect of the arrest of the deceased the Magistrate has recorded the finding that SHO had no
authority to arrest the deceased. The report forms part of the court file.
Respondent No. 4 has filed his objections. He has stated that the deceased has died on account of heart attack. However, it has been admitted
that the deceased had wrongly parked the vehicle to which SHO had objected. This resulted in exchange of hot words between the SHO and the
deceased. SHO arrested him and as a result of which he was taken into custody u/s 54 of Code of Criminal Procedure. However, the deceased
on reaching the police station developed some discomfort and was rushed to the Hospital where he died on account of heart attack.
I have heard learned Counsel for the parties and perused the record. A direction has been sought by the petitioner for registering a case against
respondent No. 4 who was SHO Police Station, Pacca Danga, Jammu.
In essence the petitioner wants this Court to issue a direction to respondents No. 1 to 3 to register a FIR and initiate proceedings against
respondent No. 4. In my opinion such a direction cannot be issued. The petitioner without taking recourse in filing application before the
Magistrate u/s 190 of Cr.P.C. has approached this Court. The Magistrate has power u/s 190 of Cr.P.C. to refer the matter to police station
concerned u/s 156(3) of Cr.P.C. for registration of the case. This remedy has not been exhausted by the petitioner. In other words a writ of
Mandamus would lie only in case authority has refused to exercise its jurisdiction which was vested in him under the statute and which he has not
exercised. In the present petition, no such plea has been taken by the petitioner seeking registration of FIR before the concerned Police Station.
I do not see any reason to issue any direction to the police concerned to register a FIR against respondent No. 4 when admittedly remedy under
the Code of Criminal Procedure is available to the petitioner.
Even the Apex Court has cautioned the courts not to entertain such writ petitions. Reliance has been placed on the judgments reported in All
India Institute of Medical Sciences Employees' Union (Regd.) through its President Vs. Union of India (UOI) and Others, and Gangadhar
Janardan Mhatre Vs. State of Maharashtra and Others, .
For what has been stated above, I do not find any force in this petition which is dismissed. However, petitioner is given liberty to approach the
concerned forum including Magistrate u/s 190 Cr.P.C. seeking appropriate action against respondent No. 4.