Jugal Kishore Tiwari vs State Of Chhattisgarh
2021 Latest Caselaw 344 Chatt

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                                                                   NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                         WPCR No. 337 of 2021

Jugal Kishore Tiwari, S/o Late Ganesh Prasad Tiwari, Aged About 45
Years, R/o House No 295, Street No 04, Near Gayatri Mandir, Model
Town Bhilai, District- Durg (C.G.)
                                                          ---- Petitioner
                                  Versus
1.    State of Chhattisgarh, through Secretary, Home Department,
      Mahanadi Bhawan, Naya Mantralaya, Naya Raipur (C.g.)
2.    Superintendent of Police Durg, District- Durg (C.G.)
3.    State of Chhattisgarh through the S.H.O Supela Bhilai, District-
      Durg (C.G.)
4.    Nandita Kaur Gill, W/o Sarjeet Gill @ Cau Paji, Aged About 38
      Years, R/o Block- A, Quarter No 79, Old Din Dayal Colony,
      Junwani Bhilai, District- Durg (C.G.)
5.    Sarjeet Gill @ Cau Paji, S/o Late Ratan Singh, Aged About 45
      Years, R/o Block- A, Quarter No 79, Old Din Dayal Colony,
      Junwani Bhilai, District (C.G.)
                                                       ---- Respondents

For Petitioner : Mr. B.P. Singh, Advocate. For State/respondent No. 1 to 3 : Mr. Gurudev I. Sharan, G.A.

Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 16.06.2021

1. The petitioner has filed this writ petition under Article 226 of the Constitution of India mainly contending that the petitioner is a builder and doing business of selling and purchasing of houses. During said course of business, respondent No. 5 came in contact with the petitioner and developed family friendship. Husband of respondent No. 4 is not doing any work or business, therefore, respondent No. 4 has made conspiracy against the petitioner to grab money. Respondent No. 4 & 5 called them for Baisakhi festival in the year 2018 where they have provided drinks with narcotic substance. Taking advantage of his drunken stage, respondent No. 4 has taken some obscene photographs

of the petitioner in her mobile, which was forwarded to respondent No. 5. They are misusing these photographs and they had started blackmailing the petitioner. Respondent No. 4 & 5 grab money from the petitioner, therefore he has filed complaint on 01.06.2021 to the Superintendent of Police, Durg, for registration of offence against respondent No. 4 & 5 and again submitted complaint on 07.06.2021, but no action has been taken, therefore, he has filed the present writ petition.

2. On above factual matrix, the petitioner has filed present writ petition and prayed for following reliefs :-

"10.1 That this Hon'ble Court may kindly be pleased to direct the respondent No. 1 - 3 to take the matter in cognizance against the Respondent No. 4 & 5.

10.2 (ii) That this Hon'ble Court may kindly be pleased to direct the respondent authorities to protect the life and liberty of the petitioner and safeguard his private properties."

3. From perusal of reliefs sought, it is quite clear that the petitioner wants that on the basis of complaint, FIR should be registered against the persons namely Nandita Kaur Gill & Sarjeet Gill @ Cau Paji.

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

5. Learned counsel for the State would submit that from prayer clause, it is quite clear that the petitioner has filed the present petition for registration of FIR against respondent No. 4- Nandita Kaur Gill & respondent No. 5- Sarjeet Gill @ Cau Paji. 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 direction to the police to investigate on the complaint for registration of offence. The petitioner has 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.

6. 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.

7. 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 & others1, 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 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."

1 (2008) 2 SCC 409

8. 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 & another2. 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 Dhage3, 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 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

2 (2020) 16 SCC 728 3 (2016) 6 SCC 277

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."

9. 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 jurisdiction over the place of offence if 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.

10. Considering the facts and materials on record and in view of the law laid down by the Hon'ble Supreme Court, the present writ petition filed under Article 226 of the Constitution of India, is disposed of with liberty as aforesaid granted in favour of the petitioner.

Sd/-

(Narendra Kumar Vyas) Judge

Arun