Sayyed Abdul Shahid vs State Of Chhattisgarh
2021 Latest Caselaw 234 Chatt

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                                                                       NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                       WPCR No. 257 of 2021
    Sayyed Abdul Shahid S/o Late Sayyed Abdul Hamid Aged About
     62 Years R/o Yadunandan Nagar, Tifra, District Bilaspur
     Chhattisgarh
                                                          ---- Petitioner
                                   Versus
   1. State Of Chhattisgarh Through The Secretary, Department Of
      Home, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur
      District Raipur Chhattisgarh
   2. Inspector General       Of    Police   Bilaspur   District     Bilaspur
      Chhattisgarh
   3. Superintendent Of Police Bilaspur District Bilaspur Chhattisgarh
   4. Station House Officer Sakri District Bilaspur Chhattisgarh
   5. Chhabi Saxena D/o Late Madhav Saxena Aged About 31 Years
      Bablupara, Ambikapur District Surguja Chhattisgarh
   6. Durga Saxena W/o Late Madhav Saxena Aged About 63 Years
      Bablupara, Ambikapur District Surguja Chhattisgarh
   7. Nikita Shrivastav D/o Ramnarayan Aged About 26 Years
      Bablupara, Ambikapur District Surguja Chhattisgarh
                                                        ---- Respondents

For Petitioner : Shri Sumit Singh Rathore, Advocate For State : Shri Gurudev I. Sharan, Govt. Advocate

Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

10.06.2021

1. The petitioner has filed this writ petition (Cr) under Article 226 of the Constitution of India for registration of an FIR against respondents No. 5 and 6.

2. The brief facts as projected by the petitioner is that the petitioner has purchased land bearing Khasra No. 22/2, Patwari Halka No. 24/23 Rakba 0.78 Acre (0.316 Ha.) from respondents No. 5 and 6 in lieu of Rs. 10,00,000/- vide sale deed dated 28.01.2013 executed between them. On the basis of the registered sale

deed the petitioner has done plotting of the land in 17 parts and thereafter, sold to different persons. Respondent No. 7 whose land is adjacent to the petitioner had applied for demarcation of the land. She had sent notice for demarcation. The Panchnama report was prepared in which it has been found that some portion of the land which has been purchased by the petitioner is belonging to other person whose Khasra No. is 21 but the same is in possession of the petitioner and also maintained in the name of the petitioner in the land records. It is revealed to him that other persons are co-owners of the said land and this fact has been hidden by respondents No. 5 and 6 from the petitioner and sold the portion of the co-owner's land to the petitioner without giving any information either to the petitioner or the co- owner. As such, respondents No. 5 and 6 have committed offence of fraud. The petitioner on the basis of aforesaid documents has filed complaint on 06.08.2018 to the Thana Incharge, Police Station Sakri, District - Bilaspur. He submitted another complaint on 03.02.2021 but no action has been taken by the concerned Thana In-charge. Therefore, he has filed the present writ petition (criminal).

3. On the above factual matrix of the case, the petitioner has prayed for the following reliefs :-

"10.1 That, the Hon'ble Court may kindly be pleased to direct the police authority particularly to conduct a detailed/independent enquiry in the complaint filed by the petitioner.

10.2 That, this Hon'ble Court may kindly direct the respondent police authority to register an FIR against the respondents No. 5 to 6."

4. From perusal of reliefs sought, it is quite clear that petitioner wants that on the basis of complaint, FIR should be registered against respondents No. 5 and 6.

5. I have heard learned counsel for the parties and perused the records annexed with the petition.

6. Learned counsel for the State would submit that from prayer clause, it is quite clear that the petitioner has filed the present

petition for a direction to the police to register FIR against respondents No. 5 and 6. The Hon'ble Supreme Court time and again deprecated filing of writ petition before High Court under Article 226 of the Constitution of India and directed that the complainant should file complaint under Section 200 of the Cr.P.C. for issuing a direction to the police to investigate on the complaint for registration of offence. The petitioner has the alternate remedy of filing complaint under Section 200 of the Cr.P.C. before Judicial Magistrate First Class, therefore, this writ petition is not maintainable before the High Court.

7. From perusal of Section 156 of the Cr.P.C., it is clear that the Magistrate may order for such investigation, if police officer is not investigating the cognizable offence. The Magistrate First Class, who is empowered under Section 190 of the Cr.P.C. can take cognizance of offence upon receiving a complaint, upon a police report of such facts or upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Section 200 of the Cr.P.C. provides for examination of complainant.

8. Since, the petitioner has remedy of filing the complaint under Section 156 (3) of the Cr.P.C. before the concerned Magistrate, the present writ petition is not maintainable. 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, which are 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 1 (2008) 2 SCC 409

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 2000 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."

9. The judgment passed by Hon'ble the Supreme Court in Sakiri Vasu (Supra) has again come up for consideration before three judges 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.

3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions 2 (2020) 16 SCC 728

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.

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

9. In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18-09-2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest."

10. 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, 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 complaint discloses any criminal offence or not.

11. 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.

12. Consequently, the writ petition being devoid of any substance is liable to be and is hereby dismissed with liberty as aforesaid granted in favour of the petitioner.

Sd-

(Narendra Kumar Vyas) Judge kishore