Chattisgarh High Court

Smt. Parveen Khan vs State Of Chhattisgarh on 26 November, 2021

                                       1

                                                                        NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                         WPCR No. 773 of 2021
    Smt. Parveen Khan W/o Shri Shek Farukh Aged About 25 Years,
     Through Mohammad Rauf Khan R/o Aadarsh Nagar Ward No. 10
     Thana Sirgitti Tahsil & District Bilaspur, Chhattisgarh.
                                                             ---- Petitioner
                                     Versus
   1. State of Chhattisgarh, Through : The Secretary, Home Department
      Raipur, District : Raipur, Chhattisgarh.
   2. District Magistrate District Bilaspur, Chhattisgarh.
   3. Superintendent of Police District Bilaspur, Chhattisgarh.
   4. Station Incharge Mahila Police Thana, Bilaspur District Bilaspur,
      Chhattisgarh.
   5. Station Incharge Police Thana Sirgitti Bilaspur, District Bilaspur,
      Chhattisgarh.
   6. Shek Faruk S/o Shek Shabir Aged About 30 Years R/o Aawas Para
      Posta Berla Thana Jarhagaon, District Mungeli, Chhattisgarh.
   7. Shek Najim Anshari S/o Shek Vajir Aged About 37 Years R/o
      Residence Budhadev Ward Sirgitti Thana Sirgitti Bilaspur, District
      Bilaspur, Chhattisgarh.
   8. Shek Naseem Anshari S/o Shek Vajeer Aged About 35 Years R/o
      Residence Budhadev Ward Sirgitti Thana Sirgitti Bilaspur, District
      Bilaspur, Chhattisgarh.
   9. Smt. Shahnaj W/o Shek Naseem Aged About 30 Years R/o
      Residence Budhadev Ward Sirgitti Thana Sirgitti Bilaspur District
      Bilaspur Chhattisgarh.
  10.Shek Vajeer S/o Shek Aged About 58 Years, R/o Budhadev Ward
     Sirgitti Thana Sirgitti Bilaspur, District Bilaspur, Chhattisgarh.
  11.Smt. Hamid Begam W/o Shek Vajir Aged About 50 Years R/o
     Budhadev Ward Sirgitti Thana Sirgitti Bilaspur, District Bilaspur,
     Chhattisgarh.
   12. Riyaz Ali S/o Haji Gulam Aged About 42 Years Sadar Lokokholi
       Masjid Residence of Lokokholi Thana Sargitti Bilaspur District
       Bilaspur Chhattisgarh.
   13. Mahmmud S/o Late Abdul Latif Aged About 70 Years Purw Sadar
       Masjid Committee Residence Santosi Mandir Ke Pass Jhopdapara
       Sargitti Bilaspur District Bilaspur Chhattisgarh.
   14. Kadir S/o Mohammad Aged About 56 Years Masjid Committee
       Thakthpur Residence Thakthpur District Bilaspur Chhattisgarh.
   15. Mukim S/o Shek Aged About 49 Years Masjid Committee Thakthpur
       Residence Thakthpur District Bilaspur Chhattisgarh.
   16. Mohammad Jakir S/o Moh. Aged About 50 Years Masjid Committee
       Thakthpur Residence Thakthpur District Bilaspur Chhattisgarh.
                                                           ---- Respondents

For Petitioner                   :         Mr. Abdul Wahab Khan, Adv.
For State/Respondents            :         Mr. Ghanshyam Patel, G.A.


                  Hon'ble Smt. Justice Rajani Dubey


                               Order on Board

26/11/2021

1. The facts projected by the petitioner are that the marriage of petitioner and respondent No. 6 (Shekh Pharuk) was solemnized according to Muslim Customs at Bilaspur. After marriage, respondent No. 6 husband of petitioner used to torture her. On 27.06.2021 at Takhatpur husband of petitioner, other relatives and other respondents No. 07 to 16 of the Muslim Jamaat, all of them got unanimous opinion and forced the petitioner to sit together and forcefully put pressure on the petitioner. Sitting together on the same day, illegally dissolved the marriage of the petitioner, which amounted to giving Tripal Talaq. Similarly, the Respondents and other members of the Jamaat are relentlessly engaged in the act of breaking other people's families and getting illegal divorces. The petitioner had also complained to the police (Annexure-P/1), but even after that no action has been taken against the criminals. Thus, there has been a threat to the life of the petitioner for whose safety the Respondents No. 01 to 03 are accountable.

2. On the basis of this factual matrix, the petitioner has filed this petition and prayed for following reliefs:-

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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.