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BIRENDRA NATH BALA & ANOTHER V/S THE STATE OF WEST BENGAL & OTHERS, decided on Wednesday, January 4, 2012.
[ In the High Court of Calcutta, W.P.No.21821(W) of 2011. ] 04/01/2012
Advocate(s) : Bijoy Bikram Das. Indranil Chakraborty, Ms. Sabilaa Raheman, Prithviraj Sinha Roy.
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    Subject:     The Court : The petitioners in this undated WP under art.226 are seeking the following principal relief:“b) Issue a writ of mandamus commanding the respondent nos. 2 and 3 their men agent officers and sub-ordinates to forthwith take cognizance of the complaints filed by the petitioners and investigate into their details and background in order to establish how the life and liberty (Article 21) of the petitioners are under threat.”The second petitioner is the wife of the first petitioner; and while the fourth respondent is the son of the petitioners the fifth respondent is the wife of the fourth respondent.Counsel for the petitioners submits as follows. The fourth and fifth respondents have wrongfully ejected the petitioners from their residence. While the police have entertained complaint submitted by the fourth and fifth respondents against the petitioners they refused to entertain complaint of the petitioners against the fourth and fifth respondents. The police have acted discriminatorily. The Superintendent of Police concerned has also neglected the matter. It is a clear case of infringement of the petitioners’ fundamental right under art.21.I am unable to see how art.21 of the Constitution of India can be brought in. It is not the case that the State or the police have taken any step that has infringed the petitioners’ fundamental right under art.21. Their allegation rather is that the police have not taken necessary action on the basis of their complaint against their son and daughter-in-law.I am also unable to see how the police could take cognizance of the offence. Cognizance of offence if any could be taken only by the Criminal Court competent to take cognizance. When the police decided not to register any FIR in my opinion instead of approaching the High Court under art.226 the petitioners ought to have approached the Criminal Court with their complaint examining which the Criminal Court could consider the question of passing an order under s.156(3) or s.190 CrPC. The worth of the allegations made in the complaint is not to be examined by the Writ Court for deciding the question whether they make out a case of commission of any cognizable offence. That was to be done by the Criminal Court competent to take cognizance of offence if any. I do not find any reason to entertain the case that since the petitioners have been wrongfully dispossessed of the immovable property in question and the police have not taken any action against the fourth and fifth respondents the petitioners are entitled to approach the High Court seeking a mandamus commanding the police to take action. The police possess no power to decide whether the petitioners were wrongfully dispossessed of the immovable property in question. Since the petitioners are alleging that they were wrongfully dispossessed of the immovable property in question instead of approaching the police and then this Court alleging police inaction they ought to have approached the Civil and Criminal Courts seeking relief according to law.For these reasons the WP is dismissed. No costs.