Skip to content


Laisram Bokul Singh and Kondolei Singh Vs. State of Manipur Through Its Chief Secretary and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantLaisram Bokul Singh and Kondolei Singh
RespondentState of Manipur Through Its Chief Secretary and ors.
Excerpt:
.....them. article 226 should be used only in those exceptional cases where there is no adequate remedy and the application under article 226 is the only convenient, beneficial and effectual means of getting redress. in the present case the present petitioner had his remedy in revision but he failed to avail himself of it; state of bihar air1952pat194 in which it has been clearly laid down that the remedy given by the article 226 is an extraordinary one and can be invoked only in exceptional circumstances by those who have no alternative remedy by way of suit or otherwise. adhar biswas' air1952cal72 in which it was held that where the petitioner did not clearly set out that there was any demand or refusal of relief asked for, before application for mandamus was made, the petition could..... brij narain, j.1. this is an application under article 226, constitution of india for obtaining a writ of mandamus or any other writ or order appropriate to the circumstances directing the respondents to give effect to this court's order dated 29-7-1954 in respect of g. c. notes of rs. 7,000/- and for giving effect to the order of the learned sub judge in civil suit no. 29 of 1954 by returning the said amount forthwith to the petitioner.2. the petitioner was charged and tried by shri o. niladhwaja singh, senior extra assistant commissioner in g. r. case no. 675 of 1955 for cheating the complainant respondent 4 of rs. 7500/-and was convicted and sentenced under section 420, i.p.c. to one year's rigorous imprisonment and a fine of rs. 400/- and in default of payment of fine to a further.....
Judgment:

Brij Narain, J.

1. This is an application under Article 226, Constitution of India for obtaining a writ of Mandamus or any other writ or order appropriate to the circumstances directing the respondents to give effect to this Court's order dated 29-7-1954 in respect of G. C. Notes of Rs. 7,000/- and for giving effect to the order of the learned Sub Judge in civil suit No. 29 of 1954 by returning the said amount forthwith to the petitioner.

2. The petitioner was charged and tried by Shri O. Niladhwaja Singh, Senior Extra Assistant Commissioner in G. R. case No. 675 of 1955 for cheating the complainant respondent 4 of Rs. 7500/-and was convicted and sentenced under Section 420, I.P.C. to one year's rigorous imprisonment and a fine of Rs. 400/- and in default of payment of fine to a further term of 4 months' rigorous imprisonment on 6-3-1954.

An appeal was filed in the Court of the learned Sessions Judge, Manipur and in this appeal No 20 of 1954 the petitioner was acquitted on 31-3-1954. The Government of Manipur filed an appeal under Section 417, Cr. P.C. in this Court against the order of acquittal and this Court in criminal appeal No. 7 of 1954 reversed the decision of the learned Sessions Judge and the petitioner was convicted under Section 411, I.P.C. and sentenced to one year's rigorous imprisonment with regard to the G. C, Notes Ex. P-7. This Court ordered under Section 517, Cr. P.C. as follows:

The note Ex, P-7 will be returned to Laisram Kirti Singh and the remaining G. C. Notes will be returned to the person from whom they were taken into custody, but this order will be subject to the result of any regular civil suit which might be brought by any of the parties regarding declaration of his right to these notes.

3. The petitioner applied to get back all the remaining G. C, Notes as they had been recovered by the police from his custody during investigation of the criminal case. The respondent 4 brought declaratory suit No. 29 of 1954 in the court of the Sub-Judge, Manipur regarding these Notes and it has not been disputed that the learned Sub-Judge at first issued an attachment order, but later on this attachment order was withdrawn. The District Magistrate, Manipur respondent 2 by means of the order dated 7-2-1955 after considering all the pros and cons thought it proper to pass final orders regarding refund of the amount of Rs. 7,000/- on receipt of a certified copy of the order passed by the Sub-Judge, Manipur in declaratory suit No. 29 of 1954 and on production of a properly executed power of attorney by Laisram Bokul Singh in favour of Pisak Singh to receive the amount on his behalf.

4. The learned Counsel for the petitioner has urged that by means of the order passed by this Court under Section 517, Cr. P.C. the petitioner acquired a right to get back the amount of Rs. 7,000/-and as the respondent's have failed in their statutory obligations to pay back this amount to the petitioner, a writ of Mandamus should be issued against them. On behalf of the respondents it has been urged by the learned Government Advocate that as the order for delivering the money to the petitioner was subject to the result of a regular suit and as regular suit has already been filed and it is about to be disposed of in a short period, the respondents 1 to 5 have exercised their discretion after carefully taking into consideration all the circumstances and so no writ should be issued against them.

Even though it be held for a moment that the petitioner has got a right in praesenti to receive the money, I think the respondent 2 was fully competent to exercise his discretion in the manner in which he has exercised it. He has taken into consideration the fact that if the money is paid to the petitioner it may be squandered and then the inevitable result would be that further litigation would ensue. In order to avoid multiplicity of suits the learned District Magistrate has, I think, properly ordered that the money may not be paid for some weeks or at the most for some months more until the regular suit is decided by the learned Sub Judge. I am, therefore, of opinion that this is not a fit case in which any writ of Mandamus should be issued.

5. The present petitioner had equally adequate and efficacious remedy in revision and he should have filed a revision petition against the order of the learned District Magistrate. Article 226 Constitution of India is not intended to give an alternative easy remedy to enable a person to move the High Court instead of seeking his ordinary remedy under the law. Article 226 should be used only in those exceptional cases where there is no adequate remedy and the application under Article 226 is the only convenient, beneficial and effectual means of getting redress.

In the present case the present petitioner had his remedy in revision but he failed to avail himself of it; vide - 'Ram Prasad v. State of Bihar : AIR1952Pat194 in which it has been clearly laid down that the remedy given by the Article 226 is an extraordinary one and can be invoked only in exceptional circumstances by those who have no alternative remedy by way of suit or otherwise. Disputed questions of fact cannot be satisfactorily determined in these summary proceedings.

6. Again, the petitioner made no previous demand for justice on the respondents prior to the filing of this writ petition. The requirement that there must be a previous demand and denial of right sought to be enforced by a petition of Mandamus is not merely a technical point. It is a point in substance which must be taken into consideration by the Court when it issues a writ of Mandamus.

The application for Mandamus and the affidavit on which it is founded must contain specific averment on the point. Demand for justice must be independent of the motion for Mandamus. In other words it must be prior to the application for Mandamus vide - 'Ratan Chandra v. Adhar Biswas' : AIR1952Cal72 in which it was held that where the petitioner did not clearly set out that there was any demand or refusal of relief asked for, before application for Mandamus was made, the petition could not be sustained. The present petition is, therefore, liable to fail on this ground also.

7. The final order was passed by the District Magistrate on 22-2-1955, but the present petition was filed after considerable delay on 12-5-1955. In - 'Muthiah Chettiar v. Commr of Income Tax' : [1951]19ITR402(Mad) Rajamannar C.J., held as follows:

Though there is no period of limitation prescribed for application for the issue of prerogative writs, long delay can be one of the grounds for refusing to grant the application for the issue of such writs.

In the present case no satisfactory explanation has, been given why there was so much delay in filing the present writ petition.

8. The learned Counsel for the petitioner has urged that his client has already given security in the court of the Sub-Judge and so the money should have been paid to him. But it is admitted that the security given is of immovable property and the security bond is not registered. As such, I think, it cannot be said that the learned District Magistrate did not exercise his discretion properly. In view of the circumstances mentioned above, I think the present writ petition cannot succeed and it is, therefore, dismissed. The parties will bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //