Chattisgarh High Court
Jasminara Khatun vs State Of Chhattisgarh on 15 December, 2022
WPCR-977-2022
Page 1 of 9
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Criminal) No. 977 of 2022
Jasminara Khatun, W/o Mohammad Saroj Jameel, aged about 39
years, R/o Shristi, Plazo B, Block C Wing, Near Akanksha School,
Awanti Vihar, Raipur, District Raipur, (Chhattisgarh)
---- Petitioner
Versus
1. State of Chhattisgarh, Through Principal Secretary, Department of
Home, Mantralaya, Mahandi Bhawan, Atal Nagar, Naya Raipur,
(Chhattisgarh)
2. Director General of Police, Chhattisgarh Police Head Quarter, Atal
Nagar, District- Raipur, (Chhattisgarh)
3. Superintendent of Police, District - Raipur, (Chhattisgarh)
4. Station House Officer, Police Station- Khamhardih, District-
Raipur, (Chhattisgarh)
5. Smt. Apoorva Dhamnani Agrawal, W/o Vivek Agrawal, aged about
28 years, R/o B.3002, Shristi Plazo, Sent Xavier School Road,
Awanti Vihar, Raipur, Tahsil and District - Raipur, (Chhattisgarh)
6. Prabhadevi Dhamnani, R/o B.3002, Shristi Plazo Sent Xavier
School Road, Awanti Vihar, Raipur, Tahsil and District - Raipur,
(Chhattisgarh)
---- Respondents
---------------------------------------------------------------------------------------------
For Petitioner : Mr. Pawan Kesharwani, Advocate
For Respondent-State : Mr. Somya Rai, Panel Lawyer
---------------------------------------------------------------------------------------------
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Rakesh Mohan Pandey, JJ
WPCR-977-2022
Order on Board
(15/12/2022)
Sanjay K. Agrawal, J
1. This writ petition has been filed by the petitioner seeking following
reliefs: (i) direct the respondents-authorities to register FIR against
respondents No.05 & 06 herein; (ii) direct the said respondents No.05 &
06 to return the amount of Rs.11,21,670/- alongwith interest @ 06% to
the petitioner and (iii) direct the investigating authority to investigate into
the present matter and also to take action against the arraying officials.
2. Mr. Pawan Kesharwani, learned counsel appearing for the
petitioner would submit that despite complaints having being made by
the petitioner to the respondents-authorities vide Annexure-P/1 dated
29.10.2022 for registration of FIR against the respondents No.05 & 06,
the same has not been registered. By placing reliance on the decision
rendered by the Supreme Court in the matter of Lalita Kumari vs.
Government of U.P.1 learned counsel would submit that upon receipt
of information by a police officer in-charge of a police station disclosing
commission of cognizable offence, it is imperative for him to register
FIR under Section 154 of CrPC. Hence, present petition be allowed and
appropriate direction be issued for registration of FIR by issuance of
writ of mandamus.
3. Per-contra, learned State counsel would submit that if petitioner is
aggrieved by non-registration of FIR on the complaints made by him, he
1 (2014) 2 SCC 1
WPCR-977-2022
has alternative remedy to approach jurisdictional criminal court under
Sections 156(3) of CrPC or to file complaint under Section 200 of CrPC,
but in the instant writ petition, petitioner is seeking mandamus directing
the police to register FIR under Section 154 of CrPC, which is not
maintainable and petitioner be relegated to avail remedy of
approaching jurisdictional criminal court under Section 156(3) of CrPC
or to prefer complaint under Section 200 CrPC.
4. We have heard learned counsel for the parties considered their
rival submissions made herein above and went through the record with
utmost circumspection.
5. In the matter of Lalita Kumari (supra) while dealing with a
petition filed under Article 32 of the Constitution of Indian seeking
issuance of writ of habeas corpus or directions of like nature against the
respondents therein for the protection of minor daughter who was
kidnapped, the Constitution Bench of the Supreme Court formulated
following questions in Para-01 & 06 as under:
"1. The important issue which arises for consideration in the
referred matter is whether "a police officer is bound to register a
First Information Report (FIR) upon receiving any information
relating to commission of a cognizable offence under Section 154
of the Code of Criminal Procedure, 1973 (in short 'the Code') or
the police officer has the power to conduct a "preliminary inquiry"
in order to test the veracity of such information before registering
the same?
6. Therefore, the only question before this Constitution Bench
relates to the interpretation of Section 154 of the Code and
incidentally to consider Sections 156 and 157 also."
WPCR-977-2022
Thereafter, their Lordships while answering the above-stated
questions laid down the principle of law that police has no option but to
register the offence in shape of FIR under Section 154 CrPC on receipt
of first information regarding commission of cognizable offence without
verifying the veracity of the first information and held in Para-120 to
120.6 as under:
"120. In view of the aforesaid discussion, we hold:
120.1 Registration of FIR is mandatory under section 154 of the
Code, if the information discloses commission of a cognizable
offence and no preliminary inquiry is permissible in such a
situation.
120.2 If the information received does not disclose a cognizable
offence but indicates the necessity for an inquiry, a preliminary
inquiry may be conducted only to ascertain whether cognizable
offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of such
closure must be supplied to the first informant forthwith and not
later than one week. It must disclose reasons in brief for closing
the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering
offence if cognizable offence is disclosed. Action must be taken
against erring officers who do not register the FIR if information
received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity
or otherwise of the information received but only to ascertain
whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to
be conducted will depend on the facts and circumstances of each
case. The category of cases in which preliminary inquiry may be
made are as under:
a) Matrimonial disputes/family disputes
b) Commercial offences
WPCR-977-2022
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in
reporting the matter without satisfactorily explaining the reasons
for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry."
6. A careful perusal of the judgment of Lalita Kumar (supra) would
show that their Lordships of the Supreme Court were considering the
question as to whether registration of FIR is mandatory, in case it
discloses commission of a cognizable offence. If the information does
not disclose commission of a cognizable offence, it mandates to
conduct a preliminary enquiry. But, there is no mandate by their
Lordships to issue a mandatory direction for registration of FIR by the
Constitutional Court under Article 226 of the Constitution of India.
7. However, in the matter of Aleque Padamsee and others v.
Union of India and others2, the question was, whether it is within the
power and jurisdiction of the Court to issue a writ directing the police to
register an FIR? In that case, Their Lordships of the Supreme Court
have held that in case the police fails to register an FIR, the modalities
set out under Section 190 read with Section 200 of the CrPC are to be
adopted.
8. Likewise, in the matter of Sakiri Vasu v. State of U.P.3, the
2 (2007) 6 SCC 171
3 (2008) 2 SCC 409
WPCR-977-2022
Supreme Court has categorically held that if a person is aggrieved that
his FIR has not been registered by the police or having been registered,
proper investigation is not done, the remedy available to the aggrieved
person lies to approach the Judicial Magistrate under Section 156(3) of
the CrPC, and it was pertinently observed as under:
"25. We have elaborated on the above matter because we often
find that when someone has a grievance that his FIR has not been
registered at the police station and/ or a proper investigation is not
being done by the police, he rushes to the High Court to file a writ
petition or a petition under section 482, Criminal Procedure Code.
We are of the opinion that the High Court should not encourage
this practice and should ordinarily refuse to interfere in such
matters, and relegate the petitioner to his alternating remedy,
firstly under section 154(3) and section 36, Criminal Procedure
Code before the concerned police officers, and if that is of no
avail, by approaching the concerned Magistrate under section
156(3).
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), Criminal
Procedure Code or other police officer referred to in section 36,
Criminal Procedure Code. If despite approaching the
Superintendent of Police or the officer referred to in section 36 his
grievance still persists, then he can approach a Magistrate under
section 156(3), Criminal Procedure Code instead of rushing to the
High Court by way of a writ petition or a petition under section
482, Criminal Procedure Code. Moreover he has a further remedy
of filing a criminal complaint under section 200, Criminal
Procedure Code. Why then should writ petitions or section 482
petitions be entertained when there are so many alternative
remedies?"
9. The principle of law laid down in Sakiri Vasu (supra) was
followed with approval by Their Lordships of the Supreme Court in the
matter of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage
WPCR-977-2022
and others4 in which it was held as under: -
"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
report and also ensure a proper investigation in the matter, and he
can also monitor the investigation. "
10. Recently, the Supreme Court (three Judges Bench) in the matter
of M. Subramaniam and Ors. v. S. Janaki and Ors. 5 relying upon its
earlier judgment in the matters of Sakiri Vasu (supra), Sudhir
Bhaskarrao Tambe (supra) and Mohd. Yousuf v. Afaq Jahan6 set
aside the direction of the High Court issued for registration of the FIR
and investigation into the matter by the police. It was held as under:-
4 (2016) 6 SCC 277
5 (2020) 16 SCC 728
6 2006 (1) SCC 627
WPCR-977-2022
"8. 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."
11. This Court also in the matter of R.K. Pandey vs. State of
Chhattisgarh and others7 (by one of us- Sanjay K. Agrawal, J) while
considering the question involved in the writ petition held as under:
"(8) Thus, the petitioner has the efficacious statutory alternative
remedy of approaching first before the Superintendent of Police
under Section 154(3) of the CrPC or other officer mentioned in
Section 36 of the CrPC. Despite approaching the Superintendent
of Police or other officer as mentioned in Section 36 of the CrPC,
the petitioner is entitled to make an application to the Magistrate
under Section 156(3) of the CrPC and also has a further remedy
of filing complaint under Section 200 of the CrPC. The Supreme
Court in like situation has deprecated the practice of directly
entertaining writ petition or petition under Section 482 of the CrPC
by this Court and emphasized that the Magistrate has very wide
powers to direct registration of an FIR and to ensure a proper
investigation in Sakiri Vasu (supra), and followed by this Court
also in above-stated case.
(9) In view of the above, the petitioner has not properly
approached the above stated forums as rendered in Sakiri Vasu
(supra). I do not find any case of issuance of a writ to the police
authorities to register FIR on the report made by the petitioner and
the writ petition is liable to be dismissed and it is accordingly
dismissed in limine but without imposition of cost(s). However, the
7 WPCR-136-2017, decided on 19.04.2017
WPCR-977-2022
petitioner shall be at liberty to avail other appropriate remedies, in
accordance with law for registration of FIR is concerned as
indicated by the Supreme Court in Sakiri Vasu (supra) and also at
liberty to bring to the notice of said authorities the decision
rendered by the Supreme Court in Lalita Kumari (supra)."
12. Reverting to the facts of the present case in light of principles of
law laid down in aforementioned judgments, it is the case of the
petitioner that the complaint discloses the commission of cognizable
offence, whereas it is the case of the State/respondent that petitioner
has alternative remedies under Sections 156(3) & 200 of CrPC, as
such, FIR cannot be registered and, therefore, in this fact-situation, in
our considered opinion, the remedy of the petitioner, if any, is to avail
the remedy available to him under Sections 154(3), 156(3), 190 read
with 200 of CrPC, as such, no direction can be issued to register FIR
against respondents No.05 & 06 herein in exercise of extra-ordinary
jurisdiction of this Court under Article 226/227 of the Constitution of
India.
13. Accordingly, the writ petition deserves to be and is accordingly
dismissed subject to the aforesaid liberty reserved in favour of the
petitioner. No order as to cost(s). However, it is made clear that this
Court has not expressed any opinion on the merits of the matter.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
[email protected]
