Sudha Jain v. The State of Assam and 8 Ors

ORDER Date : 09-01-2023 Heard Ms. S. Roy, learned counsel for the petitioner as well as Mr. K. Gogoi, learned Govt. Advocate for the respondent nos.1 to 8.

¶2The petitioner is the wife of Late Mahendra Kumar Jain. He had a Page No.# 3/5 flat bearing flat no.2D, Pink Arcade, KC Sen Road, Paltan Bazar, Guwahati-781007. The husband of the petitioner namely, Late Mahendra Kumar Jain had died in Jaipur on 15.03.2020 leaving behind the petitioner and three legal heirs.

¶3The petitioner came to know that one Neeta Jain @ Pahaljani (respondent no.9) had obtained the Next of Kin certificate, from the office of the Deputy Commissioner, Guwahati claiming to be the wife of the petitioner's deceased husband and using such Next of Kin certificate, the respondent no.9 was trying to dispose of the flat of the petitioner's deceased husband.

¶4It is also alleged that the respondent no.9 had prepared a forged will of her deceased husband, showing therein that the respondent no.9 is the beneficiary of the will. It is also alleged that the respondent no.9 also drew money from the account of the petitioner's husband. Resultantly the petitioner had submitted an FIR online on 03.03.2021, which was registered as Paltan Bazar P.S. case no.217/2021.

¶5Although the petitioner had send an e-mail to various authorities for forensic examination of the will, but there was no progress in the investigation. The petitioner had applied for mutation of her name in respect of the hereinbefore referred flat, which was rejected. Accordingly, by filing this writ petition under Article 226 of the Constitution of India the petitioner has prayed for a direction to the Paltan Bazar P.S. to expedite the investigation and to have the will examined by the Forensic science laboratory and to also investigate the fraudulent withdrawal of money from the husband's bank account.

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¶6The learned counsel for the petitioner has submitted that the petitioner is a senior citizen aged about 70 years and therefore she has approached the Court through the legal aid counsel which was appointed by Gauhati High Court Legal Service Committee (Principal Seat) Guwahati.

¶7In respect of the prayer made in this writ petition, the learned Govt. Advocate has referred to the case of Sakiri Vasu Vs. State of Uttar Pradesh and ors., (2008) 2 SCC 409 and Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and ors., (2016) 6 SCC 277, to project that the Supreme Court of India, has deprecated the exercise of power under Article 226 of the Constitution of India to order investigation, except in rare and exceptional cases.

¶8Be that as it may, as there are provisions of Code of Criminal Procedure which can be exercised by the aggrieved informant/petitioner if there is no progress of investigation. The petitioner may be well advised to avail legal remedy as may be available under the appropriate law.

¶9We refer to the provisions of Section 156 (3) Cr.PC, which empowers the Magistrate that, if he is prima facie satisfied, to (i) direct registration of FIR, (ii) if an FIR has already been registered, issue a direction for proper investigation and (iii) to monitor the investigation.

¶10As alternative and efficacious remedy has been provided for in law, which has not been exhausted by the petitioner, this Court in exercise of power under Article 226 of the Constitution of India shall be a loath to issue direction to the police with regard to investigation. Page No.# 5/5

¶11Therefore, the Court does not find any merit in this writ petition and the same is dismissed. However, the petitioner is at liberty to avail appropriate remedy as she may be so advised.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010261202022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/8214/2022o SUDHAoJAINo W/O-oLATEoMAHENDRAoJAIN,o R/OoPLOToNO.o929,oBARKEToNAGAR,o KISANoMARG,oJAIPUR,o RAJASTHANo302015. VERSUSo THEoSTATEoOFoASSAMoANDo8oORSo REPRESENTEDoBYoITSoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM,o HOMEoDEPARTMENT,oDISPUR,oGUWAHATI,oASSAM. 2:THEoPRINCIPALoSECRETARY oHOMEoANDoPOLITICALoDEPARTMENT o GOVT.oOFoASSAM o DISPUR oGUWAHATI oASSAM. 3:THEoDIRECTORoGENERALoOFoPOLICE oULUBARI oGUWAHATI. 4:THEoDEPUTYoCOMMISSIONERoOFoPOLICEo(CENTRAL) oGUWAHATI oASSAM. 5:THEoDEPUTYoCOMMISSIONERoCUMoDISTRICToREGISTRAR oKAMRUP(M) Page No.# 2/5 ASSAM. 6:THE OFFICER-IN-CHARGE PALTAN BAZAR POLICE STATION GUWAHATI ASSAM. 7:THE SENIOR SUB REGISTRAR KAMRUP(M) ASSAM. 8:THE CIRCLE OFFICER GUWAHATI REVENUE CIRCLE KAMRUP(M) ASSAM. 9:NEETA JAIN @ NEETA PAHLAJANI D/O RAM CHANDRA PAHLAJANI R/O FLAT NO. 2D PINK ARCADE K.C. SEN ROAD PALTAN BAZAR MORAKHALI GUWAHATI ASSAM- 781008 Advocate for the Petitioner : MRS. S ROY Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA