Om Prakash Jangid vs State of Rajasthan and Others

Arun Madan, J.—This petition under Article 226 of the Constitution of India is directed against alleged arbitrary and illegal investigation in respect of F.I.R. No. 54/90 for offence Under Sections 498A, 406 and 120B IPC. Police Station Jhotwara, Jaipur and for regarding reopening of the final report No. 53/91, dated 30th June, 1991, drawn up by the District Special Investigation Cell, Jaipur under direction and supervision of the then Dy. Inspector General, Jaipur Range.

The facts giving rise to the filing of this petition briefly stated are that the petitioner was married with Smt. Chandrakanta on 20th November, 1988 according to Hindu Customary Rites. The couple lived together happily till January, 1990 at the petitioner''s residential quarter No. 80 Dak Colony, Malaviya Nagar, Jaipur. It has been stated in the petition that the petitioner was interested in purchase of some residential plot prior to the celebration of his marriage and a deal was struck for the purchase of the plot through one Shri Srigopal Sharma, Sub-postmaster in the year 1987 who was interested to oblige the petitioner with a view to pursuade the petitioner to marry the daughter of the said Postmaster and to which the petitioner had consented. The petitioner had made full paymeat in respect of plot in July, 1938 to Shri Srigopal the abovenamed Postmaster who had managed to procure the concerned file for the allotment letter in favour of the petitioner in respect of Subhash Sindhi Housing Co-operative Society Ltd., Jaipur. It is further stated in the petition that on examination of the aforesaid file of the Co-operative Society the petitioner discovered two receipts of the years 1981-82, one regarding Membership of the Society and the other in respect of final payment. Enquiries made by the petitioner from said Shri Srigopal Sharma revealed that the society had the practice to manage its own affair in its own way. The petitioner was told that his name had been shown as Member of the above society in the year 1981 itself and that he could not have any anxiety for anything else. In March, 1988 abovenamed Shri Srigopal Sharma started constructing house on plot No. 4 in the same colony in which the petitioner''s plot No. 94 was located.

It is further stated in the petition that Shri Srigopal sent his son Virendra alias Pappu on 20th October, 1988 to the petitioner with an oral message to return the allotment letter as well as the concerned documents of plot No. 98 as it was not adviseable to sell the plot to the petitioner, since the intended date of the petitioner''s marriage was to take place shortly. It is stated that three days after the first meeting with Pappu, i.e., on 23rd October, 1988, Pappu again visited the petitioner alongwith the letter, dated 23rd October, 1988 written by Srigopal Sharma on his letterhead. The contents of the said letter revealed that Srigopal had advised the petitioner that he should forget about the deal regarding Plot No. 94 as the same had already been sold to someone else and that the petitioner should instead opt. for plot, No. 38. The petitioner however, thought it proper to keep photostat copies of the documents required back by Srigopal and which he kept safely with him. Srigopal Sharma also gave an undertaking to the petitioner of arranging another plot according to the petitioner''s choice either on Ajmar road or in Malaviya Nagar. In the meanwhile marriage of the petitioner was solemnised with Chandrakanta, daughter of Srigopal on 20th November, 1988. Subsequently in view of the assurance given to the petitioner by Srigopal, the petitioner started constructing a house on plot No. 38 alongwith his father and started living in the said house after completion of the construction w.e.f. October, 1989. Notwithstanding the above, Srigopal could not get the allotment of Plot No. 38 in favour of the petitioner or his father inspite of repeated moves made by the petitioner and his wife Smt. Chandrakanta for the reasons best known to said Srigopal. Subsequently Srigopal decided to get his daughter Chandrakanta to be disassociated from the petitioner. Under these circumstances a conspiracy was hatched by said Srigopal alongwith the petitioner''s wife Smt. Chandrakanta against the petitioner. It was under these circumstances that the petitioner was constrained to file a criminal complaint against his father-in-law Srigopal Sharma, brother-in-law Virendra, maternal uncle Amarchand and others u/s 107/116 Cr.P.C in the Court of Additional Collector and Magistrate First Class (HQ) Jaipur on 24 November, 1989. No affective steps could be taken on the said complaint on account of non-availability of the Presiding Officer. It is further stated in the petition that on account of the aforesaid reason, the petitioner''s wife Smt. Chandrakanta lodged a report in writing with Police Station, Malaviya Nagar, Jaipur against her father Srigopal and other on 24th November, 1989. On the basis of the said report a case was registered at serial No. 1003 on 24th November, 1989 by the local police and investigation was entrusted to one A.S.I. Shri Bhanwar Singh for inquiry. On 26th November, 1989 Srigopal and his party men forcibly entered the petitioner''s house. No. 28 and got it vacated by forcibly turning out the petitioner alongwith his parents.

It is further stated in the petition that subsequent to the aforesaid event, Srigopal Sharma hired some ''Gundas'' i.e., bad characters to forcibly take away the petitioner''s wife Chandrakanta from the custody of the petitioner on 25th and 26th November, 1989. The petitioner was consequently compelled to leave his residence on 17th November, 1989 and left for his native place Beerkari District Alwar alongwith his wife Chandrakanta and started residing in the said village. Subsequently a meeting of some respectable persons was arranged by the petitioner in December, 1989 to whom the petitioner narrated the entire story. On the intervention of some respectable persons a compromise was arrived at between the parties but Srigopal insisted that first of all his daughter Chandrakanta should be brought back to him; whereas Chandrakanta was not ready and willing to go back to her father. On 7th January, 1990 on the intervention of one temple priest near Badli village of Sikandra Geejargarh road, a meeting was arranged with Srigopal and his party men. Prior to the said meeting on misrepresentation of some facts by Srigopal, the petitioner rushed to Jaipur at the residence of Srigopal by Metador No. RSH 8646 where the petitioner was detained in unlawful custody of Srigopal in a room of his house No. 4, Jagdish Colony, Laxminagar, Jhotwara, Jaipur. On 8th of January, 1990 the petitioner''s wife Chandrakanta who came in search of her husband was also detained alongwith the petitioner''s relatives. In this manner Srigopal and his associates succeeded in accomplishment of illegal Act. Smt. Chandrakanta was detained at her father''s residence while the petitioner and his relatives were set free at about 10.30 p.m. on 10th January, 1990.

It is further contended by the petitioner that in this manner Srigopal who had won over his daughter Chandrakanta had succeeded by pressurising her to depose against the petitioner and his associates by fabricating a story regarding misappropriation of some jewellery items etc.

In view of the above circumstances, the petitioner was constrained to lodge reports with Police Station, Jhotwara and Malaviya Nagar respectively regarding the aforesaid occurrence dated 7tb January, 1990 and 8th January, 1990 but no action was taken by the police and the petitioner filed private complaints regarding above two occurrences in the Court of law of the competent jurisdiction regarding F.I.R. No. 192/90, Police Station, Jhotwara, Jaipur under Sections 147, 323, 342, 365, 384, 420, 467, 468, 471 and 120 IPC. F.I.R. No. 185/90, Police Station Malaviya Nagar, Jaipur u/s 379 IPC. Besides the above, the petitioner also made complaints in writing to several authorities by registered and other letters.

That as a counter-blast to the above, Srigopal also got registered some criminal cases against the petitioner, his parents and his associates vide FIR Nos. 241/90, 169/90, 92/90 and 82/90 and one divorce petition No. 921/90 u/s 13 of the Hindu Marriage Act in Family Court, Jaipur and petition for grant of maintenance u/s 125 Cr. P.C. (Case No. 92/90) against the petitioner.

It is further contended that soon after the Final Reports were drawn up by the police on the basis of the complaints made by the petitioner, the investigation was taken up by S.P. (3) C.I.D., I.G.P., C.I.D. and Vigilance, Jaipur for taking necessary departmental action against Srigopal and others in accordance with law and C.C.S. (Conduct) Rules, 1964.

It was contended by Shri Yadav, learned Counsel for the petitioner that notwithstanding the above, the non-applicants No. 1 to 3 did not conduct the investigation properly and fairly which resulted in violation of petitioner''s fundamental rights to life and liberty under Articles 21 and 22 of the Constitution of India that the petitioner has been left with no other alternative remedy except to move this Court by this petition under Article 226 of the Constitution. Learned Counsel for the petitioner contended that the investigation of the case F.R. No. 54/90 under Sections 498A, 406 and 120B IPC and F.R. No. 53/91 of Police Station, Jhotwara, Jaipur be withdrawn from the police and appropriate directions be given against the respondents in view of the provisions of Section 173(2) and Section 173(8) Cr. P.C. and the said Final Reports be forwarded to the Magistrate of the competent jurisdiction in compliance with the provisions of Section 173(2) Cr. P.C. Provision of Section 173(2) and Section 173(8) Cr. P.C. provide as under :

"Section 173(2):--(i) As soon as it is completed, the Officer-in-Charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating :

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested:

(f) whether he has been released on his bond and, if so, whether with or without sureties:

(g) whether he has been forwarded in custody u/s 170.

(ii) The Officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

Section 173(8)--Nothing in this section shall be deemed to preclude further investigation in respect of offence after a report under Sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the Officer-in-Charge of the Police Station obtains further evidence, oral or documentary, he shall forward to the Magistrate, a further report or reports regarding such evidence in the form prescribed : and the provisions of Sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)".

During the course of argument the learned Government Advocate strongly contended that matter concerning investigation of the aforesaid complaints of the respective parties, is no longer pending investigation with the respondents and that the final reports have already been forwarded by the investigation agencies to the concerned Court on 21st April, 1994 and 7th May, 1994. It was contended by the learned Counsel for the State that the learned, Addi. Civil Judge (7), Jaipur has already taken cognizance of the respective complaints by issuing notices to the concerned parties on 21st April, 1994 and 7th May. 1994, respectively. He has further contended that no statutory period is prescribed under the law for forwarding the final reports by the police to the Court of law of competent jurisdiction and that there was no delay in the matter of forwarding the complaint by the police to the concerned Court of law. It was further argued that as soon as the final reports were drawn up on 21-6-91, the said complaints were immediately forwarded to the concerned Court and that the said Courts have already taken cognizance of the matters. It was argued by the learned Counsel for the State that once a Final Report had been drawn up by the police and the complaints forwarded to the Court of law, it is not plausible for the respondents to re-open the investigation since the local police is ceased of the matter with regard to its competence as the jurisdiction henceforth to deal with such complaints is that of Courts concerned which have already taken cognizance of the same.

I have heard learned Counsel for the petitioner at length as well as the learned Addl. Govt. Advocate for the State.

During the Course of hearing I was informed that the intervening period of drawing up of the Final Reports by the police and forwarding the same to the Courts of law, was only about two months and, therefore, it cannot be said that there was any undue delay on the part of the respdts. as alleged by the learned Counsel for the petitioner. If the petitioner was aggrieved by the F.I.Rs. lodged against him and his relatives, it was open to him to have invoked the inherent powers of the High Court by filing a revision petition for quashing of the said F.I.Rs. u/s 482 Cr.P.C., but the petitioner did not do so and instead chose to remain silent on the issue. This Court was informed by learned Counsel for the State that the concerned spouses have already got re-married persuant to the decree of divorce dated 27th February, 1994 and the parties are no longer living together as husband and wife.

Keeping in view the aforesaid circumstances, the legal position and the facts of the case, I am of the view that no case is made out for exercise of extraordinary powers by this Court under Article 226 of the Constitution.

Since it was open to the petitioner at the first instance to avail alternative remedy before moving this Court by way of present petition under Article 226 of the Constitution and which he has failed to do so and secondly the matter concerning further proceedings in respect of the criminal complaints is already being taken care of by the Addl. Civil Judge (7) Jaipur where further proceedings are pending between the respective parties and as such the matters are Sub-judice before the said Court. Hence it would not be proper for this Court to exercise its powers under Article 226 of the Constitution. It is well settled law that where alternative remedy is available to the petitioner under the common law, the High Courts should refrain from exercising its Powers under Article 226 of the Constitution. Thus, the petitioner is not entitled to any relief from this Court as the relief sought for has already become infructuous.

In view of these circumstances no interference is called for and the petition fails and the same is dismissed with no order as to costs.