Maganlal Verma vs State Of Chhattisgarh
2021 Latest Caselaw 3343 Chatt

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                                                                        NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                          WPCR No. 771 of 2021
      Maganlal Verma, S/o Late Shri Ramlal Verma, Aged About 55 Years
       R/o Village Saragaon, Police Station Kharora, District Raipur,
       Chhattisgarh.
                                                             ---- Petitioner
                                   Versus
     1. State of Chhattisgarh, Through - Its, Secretary, Department of
        Home Mahanadi Bhavan, Atal Nagar, Mantralaya, Naya Raipur,
        District - Raipur, Chhattisgarh.
     2. Director General of Police Raipur, Directorate Office D.K.S. Bhawan,
        Raipur, District Raipur, Chhattisgarh.
     3. The Inspector General of Police, Range Raipur, Shankar Nagar,
        Raipur, District - Raipur, Chhattisgarh.
     4. Superintendent of Police Raipur, District - Raipur, Chhattisgarh.
     5. Station House Officer, Police Station Kharora, District - Raipur,
        Chhattisgarh.
     6. Gopal Dewangan S/o Shri Govind Ram Dewangan, R/o Village
        Saragaon, Police Station Kharora, District Raipur, Chhattisgarh.
                                                            ---- Respondents

For Petitioner                             :   Mr. A.D. Kuldeep, Adv.
For State/Respondents No. 1 to 5           :   Ms. Reena Singh, P.L.


                    Hon'ble Smt. Justice Rajani Dubey
                              Order on Board

29/11/2021

1. The facts projected by the petitioner are that on 04.06.2019 the petitioner submitted a written complaint to file FIR against the respondent No. 6. It is alleged therein that the respondent No. 6 had made a promise to provide job to the petitioner's son in the Railway Department and received a sum of Rs. 1,000,00/- as advance. According to the promise till December, 2015, respondent No. 6 has not provided job nor returned money. Thereafter, respondent No. 6 made a promise to return the amount in the month of March, 2016. After that, petitioner demanded his money to the respondent No. 6 in the month of June 2016 then, respondent No. 6 said that if he gives Rs. 1,000,00/- more to him, then definitely he will provide job to petitioner's son, therefore, petitioner gave the said amount again, but the respondent No. 6 has not provided the job nor returned petitioner's money, therefore petitioner has made a written complaint before the police station but till date his FIR has not been filed.

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 issue a writ order or directions to respondents No. 1 to 5 to register the FIR on the complaint of the petitioner against the respondent No. 6, in the interest of justice.

10.2. Any other relief may also be granted in favour of the petitioner as may deem fit by the Hon'ble Court as per facts and circumstances of the case.

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