Saraswati Mistry Vs State of Odisha

2. The brief facts of the present case is that on 09.11.2025 at about 9:30 A.M., while the deceased (daughter of the petitioner) was standing by the roadside near Baghua Chhak, the motorcycle bearing registration number OD04T4876 dashed against her from behind as a result she fell down on the road sustaining grievous injuries. She was immediately taken to CHC Rajnagar, with the help of local people for treatment, but due to her critical condition the medical officer referred her to SCB Medical Cuttack. Thereafter, she was taken to a hospital in Bhubaneswar, where she was declared dead. Capital PS UD Case No.300 of 2025 was registered. On the report of Susen Bain, uncle-inlaw of the deceased, Rajnagar P.S. Case No. 397 dated 09.11.2025 was registered under Sections 281 and 106(1) of the BNS against the rider of the said motorcycle. The record of Capital PS U.D. Case No.300 dated 09.11.2025 has however, not been produced before the Court.

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3. In the inquest report dated 10.11.2025, cause of death of the deceased has been mentioned to be “due to vehicular accident as

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reported her family members” and the petitioner, Saraswati Mistry along with others had signed on this inquest report and the details regarding the accident has been stated under the column “Opinion of witnesses as to cause of death”. Thereafter, the petitioner sent a complaint by speed post to the Rajnagar Police Station on 25.11.2025 alleging subject to continuous mental cruelty and harassment on account of dowry demands by her in-laws for the last two years and had suddenly died under mysterious and highly suspicious circumstances.

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SUBMISSIONS

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4. Mr. G. K. Tripathy, learned counsel for the petitioner submits that the daughter of petitioner, who was nine months pregnant had died under suspicion circumstances, which cannot be treated as a road accident. The petitioner being the mother of deceased on account of stress and sorrow has signed on the inquest report without being aware of its contents. Subsequently, she came to realise that the death of deceased was being given the colour of an accident, when in reality she had been killed by her in-laws. She had approached the Rajnagar Police Station(date not given) and thereafter submitted a written complaint by speed post on 25.11.2025 alleging

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that she(deceased) had died on a mysterious and suspicious circumstances, but her in-laws, namely, Maku Baina (Husband), Sukumar Baina (Father-in-Law), Nilu Baina (Mother-in Law), Mohan Baina (Brother-in-Law), Mahadeb Charan Baina (Brother-in-Law) and Soshen Baina (Uncle-in-Law) had conspired together to give it to a road accident and they cremated her without informing the petitioner, for which she became suspicious about her death. He submits that though the complaint made out a cognizable offence, but the police did not register a case, for which she had sent a representation on 02.12.2025 to the S.P., Kendrapara that the IIC, Rajnagar Police Station be directed to register her written complaint as an FIR and supply a free copy of the same to her. As this is not produced any result, she has approached this Court.

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Mr. G. K. Tripathy, learned counsel for the petitioner relies on the decisions of the Supreme Court in the case of Sakiri Basu vs. State of UP and others reported in (2008) 2 SCC 409 and the case of Lalita Kumari vs. Govt. of UP reported in (2014) 2 SCC 1 , to submit that where a complaint makes out a cognizable offence, the police has no option but to register a case and carry out investigation.

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5. Mr. A.K. Apat, learned Additional Government Advocate

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for the State relying on the instructions received by him, submits that the materials on record clearly disclose that the death of the deceased was accidental in nature and the FIR in Rajnagar PS Case No. 397 of 2025 on 09.11.2025 also discloses this. FIR was registered against the offending vehicle and the inquest report dated 10.11.2025 mentioned the cause of death to be due to a vehicular accident as reported by the family members of the deceased. The petitioner herself, along with others had signed the inquest report and the opinion regarding the cause of death was duly recorded in the presence of witnesses. He further submits that no material has been produced earlier to substantiate the allegation of dowry demand and the subsequent allegations raised by the petitioner appear to be an after thought and made without any basis and due to dispute about sharing of the compensation amount.

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JUDICIAL PRONOUNCEMENT

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6. In the case of Sakiri Basu vs. State of UP and others reported in (2008) 2 SCC 409 , this Court has held as follows;

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“24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded,

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there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.

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25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).

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27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ

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petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

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28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.

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29. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate).

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30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned

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police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11 ), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna (supra).”

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In the case of Lalita Kumari vs. Govt. of UP reported in

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(2014) 2 SCC 1 , this Court has held as follows;

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“111) In view of the aforesaid discussion, we hold:

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i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

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ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

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iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

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iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

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v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

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vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.

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The category of cases in which preliminary inquiry may be made are as under:

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a) Matrimonial disputes/ family disputes

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b) Commercial offences

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c) Medical negligence cases

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d) Corruption cases

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e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

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The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

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vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The

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fact of such delay and the causes of it must be reflected in the General Diary entry.

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viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

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In the case of Sudhir Bhaskarrao Tambe vs. Hemant

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Yashwant Dhage and Others; 2016 (6) SCC 277, the Supreme Court has held as follows:

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“ 3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will d ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

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4. In view of the settled position in Sakiri Vasu case, the impugned judgment¹ of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure

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proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.”

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ANALYSIS AND CONCLUSION

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7. In view of the decisions of the Supreme Court in the case of

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Sakiri Basu (supra) and Lalita Kumari (supra) it is not in dispute that where a cognizable offence is made out, the police is duty bound to register a case. In view of the decision in the case of Sudhir Bhaskarrao Tambe (supra) , it is not in dispute that the petitioner has alternative remedy of approaching the jurisdictional Magistrate in case of inaction by the police and in all cases where there is allegations of inaction by the police or improper investigation, the High Court is not required to interfere.

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8. There is no quarrel over this proposition of law that where a report/complaint discloses commission of a cognizable offence, the police should register a case and carry out investigation. It is not

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permissible to the police to first conduct an enquiry before registering the case when the allegation relates to a serious / heinous offence.

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9. Perused the instructions dated 21.01.2026 and 28.01.2026 of

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the IIC, Rajnagar Police Station produced by Mr. A.K. Apat, learned Additional Government Advocate where it is stated that after return from the Capital Hospital, the petitioner had not attended the funeral ceremony and dispute had arisen between the petitioner and in-laws of his daughter regarding benefit of insurance claim. Though, the matter was discussed amicably in presence of village gentries of the two Panchayats, namely, Ramesh Mistry, Basu Mandal, Sudarshan Rout, Ramesh Mandal and Keshab Baidya, who stated that the petitioner demanded cash of Rs. 5 lakhs accidental benefit as advance from the in-laws of her daughter. As they were not in a condition to

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pay the same, the matter could not been solved, for which the petitioner has filed the complaint.

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10. In the present case, investigation regarding death of the daughter of the petitioner is already pending in Rajnagar P.S. Case No. 397 of 2025 where it has been alleged that death was due to a motor vehicle accident.

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11. The petitioner has subsequently made allegations that the deceased - her daughter, died under suspicious circumstances, and the cause of death of the deceased was given the colour of an accident, when in reality she had been killed by her in-laws.

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12 . As Rajnagar PS Case No. 397 of 2025 is still under investigation, I am therefore of the view that direction is not required to be issued for registering a separate case on the complaint of the petitioner. As the complaint of the petitioner relates to suspicious death of daughter of the petitioner who was in an advanced stage of pregnancy and the petitioner has complained about dowry torture, the I.O, while investigating into the case should also enquire into the allegations made by the petitioner.

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13 . As the allegations of the petitioner relate dowry torture and murder of her daughter, the Superintendent of Police, Kendrapara , is directed to assign a senior officer to supervise investigation of the case . A separate FIR need not be registered.

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14. Needless to say, if the petitioner is aggrieved by the result of

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the investigation, it is open to her to challenge the same in the appropriate forum.

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15. With the above observation, the CRLMP is disposed of.

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