Chattisgarh High Court
Jharna Baghel vs State Of Chhattisgarh on 9 February, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 142 of 2022
1. Jharna Baghel W/o Manoj Baghel, aged about 34 years, R/o
Sanjay Gandhi, Ward No. 34, Railway Colony, Jagdalpur,
District Bastar (C.G.).
2. Kalawati Sekiya W/o Purushottam Sekiya, aged about 35
years, R/o Sanjay Gandhi Ward No.34, Railway Colony,
Jagdalpur, District Bastar (C.G.)
3. Barkani Baghel W/o Joshef Baghel, aged about 39 years, R/o
Sanjay Gandhi Ward No.34, Railway Colony, Jagdalpur,
District Bastar (C.G.)
4. Simran Nag W/o Akash Baghel, aged about 21 years, R/o
Sanjay Gandhi Ward No.34, Railway Colony, Jagdalpur,
District Bastar (C.G.)
5. Rajkumari Harijan W/o Tunniram Harijan, aged about 38
years, R/o Sanjay Gandhi Ward No.34, Railway Colony,
Jagdalpur, District Bastar (C.G.)
6. Rajkumari Besra W/o Santosh Besra, aged about 42 years,
R/o Sanjay Gandhi Ward No.34, Railway Colony, Jagdalpur,
District Bastar (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh Through The Principal Secretary, Home
Department, Mantralaya, Mahanadi Bhawan, Atal Nagar Nawa
Raipur, District Raipur, Chhattisgarh.
2. Superintendent of Police, Jagdalpur, District Bastar (C.G.).
3. Station House Officer, P.S. Bodhghat, District Jagdalpur/Bastar
(C.G.)
4. Smt. Komal Sena (ward member) W/o Shri Sujeet Sena, aged
about 34 years, R/o Sanjay Gandhi Ward No.34, Railway
Colony, Jagdalpur, District Bastar (C.G.)
5. Sujeet Sena, aged about 42 years, S/o Late Krishna Sena,
Sanjay Gandhi Ward No.34, Railway Colony, Jagdalpur,
District Bastar (C.G.)
---- Respondents
For Petitioners : Mr. T. K. Jha, Adv.
For State : Mr. Amit Singh Chouhan, P.L.
Hon'ble Smt Justice Rajani Dubey
Proceeding through vide conferencing
Order on Board
09.02.2022
1. Heard.
2. The petitioner has filed the instant petition seeking direction
to the police authorities (respondent Nos. 1 to 3) to register
the offence against respondent No. 4 and 5 for committing
fraud to the tune of Rs.25,000/- each on the pretext of
providing accommodation under the scheme of Atal
Awas/Pradhan Mantri Awas Yojna.
3. The facts projected by the petitioners are that petitioners,
who were in need of accommodation, contacted respondent
Nos. 4 and 5, whom assurance was given by them to provide
the accommodation under Atal Awas/Pradhan Mantri Awas
Yojna and obtained Rs.25,000/- each from the petitioners.
After the passage of time, when the petitioners met with the
respondent Nos. 4 and 5 about the progress of their work,
respondent No.4 and 5 used filthy language and also
assaulted them. Thereafter, the petitioners have made
complaint before the police authority, but the concerned
police authorities are neither lodging FIR nor taking any
action against respondent Nos. 4 and 5.
4. On the basis of this factual matrix, the petitioners have filed
this petition and prayed for following relief:-
10.1. That, this Hon'ble Court may kindly be pleased
to call for the entire records relating to this
case.
10.2 That, this Hon'ble Court may kindly be
pleased to allow the petition and direct the
respondent No.1 to 3 and register F.I.R. in all
the complaints of petitioners.
10.3 That, any other relief, which this Hon'ble Court
may deem fit and proper together with cost of
the petition.
5. On the other hand, learned State counsel opposed the prayer
made through this petition.
6. The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State
of Uttar Pradesh & Others reported in (2008) 2 SCC 409,
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 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."
7. The judgment passed by Hon'ble the Supreme Court in Sakiri
Vasu (Supra) has again come up for consideration before
three judges Bench in case of M. Subramaniam & another
Vs. S. Janaki & another reported in 2020 SCC Online SC
342. 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."
8. 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 petitioners 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.
9. 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.
10. With the aforesaid observations, this petition is finally
disposed of with the aforesaid liberty in favour of the
petitioners, at the admission stage.
Sd/-
(Rajani Dubey)
Judge
pekde
