Chattisgarh High Court

Chandrakanti Devi vs State Of Chhattisgarh on 23 August, 2022

                                    1


                                                                    NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                Writ Petition (Criminal) No. 648 of 2022

     Chandrakanti Devi, W/o Govind Singh, aged about 63 years, R/o Qtr.
     No. 1-B52 Vishrampur, Police Station Vishrampur, Tahsil and District
     Surajpur (C.G.)

                                                ---- Petitioner/Complainant

                                   Versus

     1.   State of Chhattisgarh, Through : the Secretary, Department of
     Home Affairs (Police), New Raipur, Mantralaya, New Raipur, Civil
     and Revenue District Raipur (C.G.)

     2.      Director General of Police, Raipur, District Raipur (C.G.)

     3.   Inspector General of Police, Range Ambikapur, District
     Surguja (C.G.)

     4.    Superintendent of Police, Surajpur, Civil & Revenue District
     Surajpur (C.G.)

     5.    District Magistrate, Surajpur, Civil and Revenue District
     Surajpur (C.G.)

     6.    Station House Officer Police Station Vishrampur, District
     Surajpur (C.G.)

     7.    Munmun Singh, S/o late Jay Govind Singh, aged about 41
     years, Occupation - Foreman at Rehar Mines, R/o 2-A-123, SECL
     Colony, Vishrampur, Police Sttion Vishrampur, District Surajpur
     (C.G.) [Accused]

                                                           ----Non-applicant



For Petitioner             :      Mr. Punit Ruparel, Advocate.
For Respondents No. 1 to 6 :      Mr. Wasim Miyan, Panel Lawyer.

Hon'ble Mr. Justice N.K. Chandravanshi

Order On Board 23-08-2022

1. The petitioner has filed instant writ petition under Article 226/227 of the Constitution of India against inaction on the part of the respondent

authorities, as they have not taken any action on the complaint made by petitioner for registration of First Information Report (FIR) against respondent No. 7 despite the fact that the complaint disclosed commission of cognizable offence.

2. Case of the prosecution, in brief, is that petitioner and respondent No. 7 are relatives. Their relative namely Lal Govind Singh was working in the SECL, but due to incapability of performing his job, he left the job. It is alleged that respondent No. 7 is son of Jay Govind Singh, who was brother of late Lal Govind Singh, but respondent No. 7, on the basis of false and fabricated documents, has got compassionate appointment impersonating himself as son of Lal Govind Singh and presently he (respondent No. 7) is working as Foreman at Rehar Mines, Vishrampur, District Surajpur (C.G.), thus, the respondent No. 7 has committed the offence of forgery and cheating, hence, complaint in this regard (Annexure P-2) was made to respondent No. 6 but he did not lodge FIR against respondent No. 7, hence, written complaint (Annexure P-4) was also made to Superintendent of Police, Surajpur, respondent No. 4 herein, but inspite of aforesaid complaints, FIR has not been registered against respondent No. 7, whereas, complaint made against respondent No. 7 disclosed commission of cognizable offence, hence, the petitioner has filed instant writ petition seeking following reliefs :-

(i) That, this Hon'ble Court may kindly be pleased to direct the respondent authority (respondent No. 6) to register an FIR against the respondent No. 7 in the offence punishable under Sections 420, 467, 468, 471 & 120-B of Indian Penal Code.

(ii) That, this Hon'ble Court may kindly be pleased to direct the respondent No. 7 to 9 to take action on the complaint dated 06.11.2020 sent by petitioner against the respondent no. 7.

(iii) That, this Hon'ble Court may kindly be pleased to direct the respondent No. 1 to 6 to take action against the culprit respondent No. 7.

(iv) Cost of petition may also be granted to the petitioner.

(v) Any other relief, which this Hon'ble Court deems fit and proper, may also, kindly be granted to the petitioner in the interest of justice.

3. Contention of learned counsel for the petitioner is that respondent No. 7 has got compassionate appointment impersonating himself as son of late Lal Govind Singh, who was working in the SECL and left his job, whereas, respondent No. 7 is not a son of Lal Govind Singh, but he is son of Jai Govind Singh, who was brother of Lal Govind Singh. It is further submitted that to secure aforesaid job, respondent No. 7 has manipulated /fabricated false educational documents and, thus, he has committed offence of forgery and cheating and caused huge loss to SECL, which discloses cognizable offence against him, despite making complaint in this regard to respondents No. 4 & 6/respondents police authorities, FIR has not been registered against respondent No. 7. While referring the judgment passed by Supreme Court in the matter of Lalita Kumari v. Govt. of UP & Ors. reported in (2014) 2 SCC 1 and the order passed by this Court in Writ Petition (Cr.) No. 9 of 2016 (Bhushan Singh Rathiya v. State of Chhattisgarh & others), it is submitted that in aforesaid judgments, it has clearly mandated that if complaint discloses commission of cognizable offence, then police authority is bound to register the FIR and if the same is not done, then it would be a matter of contempt. It is next submitted by learned counsel for the petitioner that in respect of non- compliance of order passed in W.P. (Cr.) No. 9/2016, contempt proceedings was initiated against the concerned police officer vide order dated 7.7.2017 passed by this Court in Writ Appeal No. 140 of 2017, hence, it is prayed that direction may be issued to the respondents police authorities to take appropriate action and lodged FIR on the complaint made against the respondent No. 7.

4. Per contra, learned counsel appearing for the State while opposing the submissions made by learned counsel for the petitioner would submit that according to the petitioner, despite alleged complaints made against respondent No. 7, FIR has not been lodged but in such a situation there is an alternative remedy available to him by filing complaint case before the concerned Judicial Magistrate, First Class under Section 200 of the Cr.P.C.

or they may also file application under Section 156 (3) of the Cr.P.C.. It is further submitted that Hon'ble Apex Court has held in catena of judgments that if alternative remedy is available, then extraordinary power under Article 226 of the Constitution of India should not be exercised. It is further submitted that in the instant case, the petitioner has not availed aforesaid alternative remedy and has directly invoked extraordinary power of this Court by filing writ petition, which is not permissible under the law. Hence, the petitioner is not entitled to get any relief in this petition.

5. I have heard learned counsel appearing for the parties and perused the material available on record.

6. Grievance of the petitioner in this case is that the respondent No. 7 has secured job in SECL on the basis of false and fabricated documents and wrongly impersonating himself as son of Lal Govind Singh, whereas, he is the son of Jay Govind Singh. Thus, he has committed offence of forgery and cheating, which is cognizable offence and the complaint in this regard was made, despite that respondent police authorities have not complied with the mandate given by Hon'ble Supreme Court in case of Lalita Kumari (supra) and the judgments passed by this Court.

7. It is trite law that if alternative remedy is available, then extraordinary power of the High Court should be exercised very rarely and, that too, in those cases where failure of justice / miscarriage of justice is apparent.

8. In the case of Sakiri Vasu -v- State of UP and others 1, their Lordships of the Supreme Court has examined the issue in paragraphs 26 to 28, which read thus :-

" 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can

1 2008 (2) SCC 409

approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

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 CrPC 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 Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.

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 delivered by Hon'ble Supreme Court in Sakiri Vasu (supra) has again come up for consideration in the case of N. Subramaniam and another -v- S. Janaki and another 2 and Hon'ble Supreme Court after considering the said judgment, has held in paras 7 and 9 as under :-

2 (2020) 16 SCC 728

"7. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 : (2016) 2 SCC (Cri) 549] , in which it is observed :

"2. This Court has held in Sakiri Vasu v. State of U.P.(supra), 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 (supra) 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 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 (supra), 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 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 18-9-2008 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. Thus, applying the ratio of law laid down by the Supreme Court in the afore-cited cases to the facts of the case at hand, it would appear that writ petition under Article 226/227 of the Constitution of India is not maintainable before this Court and that discretionary power under Article 226 of the Constitution of India for direction for registration of FIR or direction for investigation may be very rarely / sparingly exercised by the High Court, that too, in those cases where failure of justice/miscarriage of justice is apparent, because, for such grievance, it is open for the petitioner to approach the Court of Judicial Magistrate having territorial jurisdiction over the place of offence, if it deems proper and necessary for filing of complaint under Section 156(3) or Section 200 of the Criminal Procedure Code, 1973.

11. In view of the foregoing discussions and also in view of the decision rendered by the Supreme Court in the afore-cited cases, the instant writ petition filed under Article 226/227 of the Constitution of India stands disposed of with liberty in favour of the petitioner to file complaint under Section 200 or 156 (3) of the Cr.P.C. before the court of Judicial Magistrate First Class having jurisdiction over the place of offence. In the event of filing of such complaint, the Magistrate will follow the prescribed procedure under the provisions of law to decide the case on its own merit, without being influenced by any of the observations made by this Court.

12. It will not be out of place to mention here that if such complaint is filed, then the learned Magistrate is also expected to follow the guidelines given by the Hon'ble Supreme Court in the case of Priyanka Shrivastava v. State of UP , reported in (2015) 6 SCC 287 .