Kholbahra Lahre vs State Of Chhattisgarh
2021 Latest Caselaw 3341 Chatt

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                                                                        NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                             WPCR No. 774 of 2021
      Kholbahra Lahre S/o Late Khushiram Aged About 41 Years, R/o
        Village Gopalbhavna, Police Station And Tahsil Sarangarh, District
        Raigarh, Chhattisgarh.
                                                              ---- Petitioner
                                   Versus
     1. State of Chhattisgarh, Through : The Secretary, Home Police
        Department Mahanadi Bhawan Mantralaya, Nawa Raipur,
        Chhattisgarh.
     2. The Superintendent of Police, District Raigarh, Chhattisgarh.
     3. The Station House Officer, Police Station Sarangarh, District
        Raigarh, Chhattisgarh.
     4. Amrit Ekka, Posted As Branch Manager, State Bank of India, Branch
        Sarangarh, District Raigarh, Chhattisgarh.
     5. Vishnu Murmur, Posted As Cashier, State Bank of India Branch
        Sarangarh, District Raigarh, Chhattisgarh.
                                                           ---- Respondents

For Petitioner : Mr. Santosh Bharat, Adv, on behalf of Mr. Ramakant Pandey, Adv.

For State                          :       Mr. Amit Singh, P.L.


                   Hon'ble Smt. Justice Rajani Dubey
                                Order on Board

29/11/2021

1. The facts projected by the petitioner are that the petitioner is holding bank account No. 32402799973 of State Bank of India, Branch Sarangarh. On 11.12.2020 and on 14.12.2020 the petitioner has deposited Rs. 2,00,000/- and 15,01,000/- respectively, by deposit slip in his aforesaid account, but the said amount was not deposited in his bank account, therefore, the petitioner enquired about the status of the said deposit to the respondent No. 4, who told that do what you want he will not deposit the said amount. Thereafter, the petitioner has made a complaint before the respondent police authorities against the respondents No. 4 and 5 for conducting investigation in the matter, but till date no investigation has been conducted against the respondents No. 4 and 5. Thereby providing shelter to the accused persons, which is contrary to the directions issued by the Government of India as well as the judgment rendered by the Hon'ble Supreme Court in the case of Lalita Kumari.

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 direct respondent police authorities to ensure compliance of directions issued by this Hon'ble Court in Paragraph No. 18 & 19 in the matter of Bhushan Singh Rathiya Vs. State of Chhattisgarh & Others passed in WP(Cr) No. 9/ 2016 and to conduct investigation on the complaint made by the petitioner against accused/culprit/respondents No. 4 and 5, which prima facie discloses the commission of a cognizable offence.

10.2 That any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the cost of the petition may be given.

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 petitioner.

Sd/-

(Rajani Dubey) Judge

H.L. Sahu