Chattisgarh High Court
Vishnu Koshle vs State Of Chhattisgarh on 14 December, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 827 of 2021
1. Vishnu Koshle S/o Late Alen Koshle Aged About 55 Years
Upsarpanch R/o Ward No. 6, Village Panchayat Kunra,
District Bemetara, Chhattisgarh.
2. Jhaduram Kosle S/o Late Shyam Koshle Aged About 60
Years R/o Ward No. 6, Village Panchayat Kunra, District
Bemetara, Chhattisgarh.
3. Koduram Yadav S/o Late Shriram Yadav Aged About 58
Years R/o Ward No. 6, Village Panchayat Kunra, District
Bemetara, Chhattisgarh.
4. Smt. Mugeshiya Bai W/o Koduram Yadav Aged About 53
Years R/o Ward No. 6, Village Panchayat Kunra, District
Bemetara, Chhattisgarh.
---- Petitioners
Versus
1. State Of Chhattisgarh Through The Secretary,
Department Of Homes, D.K.S. Bhawan, Raipur
Chhattisgarh.
2. Director General Of Police Police Head Quarter, Atal
Nagar, Raipur, District Raipur Chhattisgarh.
3. Inspector General Of Police, Durg Range, District Durg
Chhattisgarh.
4. Superintendent Of Police District Bemetara Chhattisgarh.
5. Station Hose Office, Police Station Nandghat, District
Bemetara Chhattisgarh.
6. Smt. Sntoshi Baghel W/o Shri Satyasukrit Bashel
Sarpanch Of Village Panchayat Kunra, Tahsil Navagarh,
District Bemetara Chhattisgarh.
7. Poonam Chandra Jangde D/o Shri Ramkishun Jangde
Secretary Of Village Panchayat Kunra, Tahsil Navagarh,
District Bemetara Chhattisgarh.
8. Basant Gayakwad S/o Late Kamal Gayakwad, Rojgar
Sahayak Of Village Panchayat Kunra, Tahsil Navagarh,
District Bemetara Chhattisgarh.
---- Respondents
For Petitioners : Mr. R.K. Pali, Advocate
For State/respondents: Mr. Ayaz Naved, G.A.
Hon'ble Smt. Justice Rajani Dubey
Order on Board
14/12/2021
1. The facts projected by the petitioners are that the
petitioners made a written report before police Nandghat to
lodge F.I.R. against respondent Nos. 6 to 8 alleging therein
that during their tenure as Up-Sarpanch and Panch they
embezzled the government fund on the pretext of pond
deepening under the Mahatma Gandhi Rojgar Guarantee
Yojana and also prepared forged and fabricated muster roll but
the respondent Nos. 1 to 5 have not taken any action
regarding investigation in to the matter.
2. On the basis of this factual matrix, the petitioner has
filed this petition and prayed for following reliefs:-
10.1 That this Hon'ble Court may kindly be pleased
to call the records pertaining to case of the petitioner.
10.2 That, this Hon'ble Court may kindly be pleased
to direct the respondents authority to register the
crime against the respondent Nos. 6 to 8 on the basis
of written report.
10.3 The Hon'ble Court may kindly be pleased to
grant any other ancillary relief, as it may deem fit and
proper in the facts and circumstances of the case.
10.4 Cost of the petition.
3. The Hon'ble Supreme Court in case of Sakiri Vasu Vs.
State of Uttar Pradesh & others 1, has examined the issue
in paragraphs 27 and 28 and held as under:-
"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 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 Section 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 Cr.P.C.
"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."
4. The judgment passed by Hon'ble the Supreme Court in
Sakiri Vasu (Supra) has again come up for consideration
before three judges (2008) 2 SCC 409 Bench in case of M.
Subramaniam & another Vs. S. Janaki & another 2. The
Supreme Court after considering the same judgment has held
at para 7 & 9 which are as under:-
"7. The said ratio has been followed in Sudhir
Bhaskarrao Tambe v. Hemant Yashwant Dhage, in
which it is observed: (SCC p. 278, paras 2-4) "2. This
Court has held in Sakiri Vasu V. State of U.P., that if a
person has a grievance that his FIR has not been
registered by the police, or having been registered,
proper investigation is not being done, then the
remedy of the aggrieved person is not to go to the
High Court under Article 226 of the Constitution of
India, but to approach the Magistrate concerned
under Section 156 (3) CrPC. If such an application
under Section 156 (3) CrPC is made and the
Magistrate is, prima facie, satisfied, he can direct the
FIR to be registered, or if it has already been
registered, he can direct proper investigation to be
done which includes in his discretion, if he deems it
necessary, recommending change of the
investigating officer, so that a proper investigation is
done in the matter. We have said this in Sakiri Vasu
case because what we have found in this country is
that the High Courts have been flooded with writ
petitions praying for registration of the first
information report or praying for a proper
investigation."
"9. 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 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."
5. From analysis of the above legal provisions, it is crystal
clear that the writ petition under Article 226 of the
Constitution of India is not maintainable before the High Court.
However, it is open to the petitioner to approach the court of
Judicial Magistrate First Class having territorial jurisdiction
over the place of offence if it deemed appropriate and
necessary for filing of complaint under Section 156(3) of Cr.P.C
or Section 200 of Cr.P.C. and in-turn Magistrate will follow the
procedure prescribed under the provisions of the Cr.P.C. It is
made clear that this Court has not expressed any opinion on
merits of the case whether the averments made in the
petition discloses any criminal offence or not, it is for the
concerning Magistrate to decide the case on merits of the
case without being influenced by any of the observations
made by this Court.
6. Considering the facts and materials on record and in
view of the law laid down by the Hon'ble Supreme Court, this
Court is of the view that this writ petition is not maintainable.
7. With the aforesaid observations, the writ petition
(criminal) is finally disposed of with the aforesaid liberty in
favour of the petitioners.
Sd/-
(Rajani Dubey)
Judge
pkd
