- (1.) The petitioner in this art.226 petition dated November 16, 2009 is seeking the following reliefs: "(a) A writ of and/or in the nature of Mandamus commanding concerned respondents, their men, agents, subordinates, representatives and/or assigns for making arrangement for proper fair and impartial investigation into the allegations forming the basis of the M.P. Case No.2792 of 2009 now pending and being sent to I.C.-in-Charge, of Dum Dum P.S. under Section 144(2) of the Code of Criminal Procedure, 1973 by the Court of learned Executive Magistrate, Barrackpore, North 24-parganas; forthwith. (b) A writ of and/or in the nature of Mandamus commanding concerned respondents, their men agents, subordinates, representatives and/or assigns to bring the private respondent herein being the accused of the case noted in Prayer a as above forthwith. (c) A writ of and/or in the nature of Mandamus commanding concerned respondents, their men, agents, subordinates, representatives and/or assigns to investigate all the pending case or cases against the private respondent to establish the rule of law forthwith. (d) A writ in the nature of Mandamus commanding to I.C., Dum Dum P.S., to depute police personnel of the cost of the petitioner at premises No. 139, Rafi Ahmed Kidwai Road, P.S.- Dum Dum, District North 24-Parganas forthwith."
(2.) I am unable to see how the petitioner can get the reliefs from the high court under art.226. M.P. Case No.2792 of 2009 was registered on the basis of an application filed under s.144 of the Code of Criminal Procedure, 1973. The order made in the application cannot remain in force till today. It was made on September 15, 2009 (p.29). The Executive Magistrate directed the police to see that "the O.P. members is not disturbed unlawfully in time of his lawful work in his lawful possession." If the petitioner is apprehending that someone may dispossess him of the property, in my opinion, his remedy, if any, is before the appropriate civil court.
(3.) The opposite parties to the s.144 application cannot be treated as the accused. Hence there is no question of getting any relief in terms of prayer (b). If any case is pending in the sense that an FIR was registered by the police, and the police are not investigating properly, then, in my opinion, the petitioners remedy, if any, is before the criminal court that is supposed to monitor the investigation. A vague order in terms of prayer (c) cannot be made so as to monitor a part of the investigation in exercise of power under art.226.;