Chattisgarh High Court

Girja Shankar Yadav vs State Of Chhattisgarh on 11 February, 2022

                                       1

                                                                      NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                          WPCR No. 161 of 2022
      Girja Shankar Yadav S/o Shri Raja Ram Yadav, aged about 44 years,
        R/o Naya Para (Ishwari Prasad Durandhar Ward Bhatapara), Krishna
        City House No.2, Police Station- Bhatapara, Urban District
        Balodabazar, Bhatapara, Chhattisgarh.
                                                             ---- Petitioner
                                   Versus
     1. State of Chhattisgarh, Through: The Secretary, Department of
        Home Affairs, Atal Nagar, Naya Raipur, District-Raipur,
        Chhattisgarh.
     2. The Director General of Police, Police headquarter, Raipur, District-
        Raipur, Chhattisgarh.
     3. The Superintendent of Police, Raipur, District- Raipur, Chhattisgarh.
     4. The Station House Officer, Police Station Golebazar, Raipur,
        District-Raipur, Chhattisgarh.
     5. Rakesh Ahir S/o Late Rameshchand Ahir, age about 45 years, R/o
        Ahirwada, Opposite to Hotel Vinayak, Golebazar, Raipur, District-
        Raipur, Chhattisgarh.
     6. Kanhaiyya Ahir S/o Late Rameshchand Ahir, Aged about 37 years,
        R/o Ahirwada, Opposite to Hotel Vinayak, Golebazar, Raipur,
        District-Raipur, Chhattisgarh.
                                                          ---- Respondents

For Petitioner              :      Mr. Akath Kumar Yadav, Adv.
For State                   :      Mr. Ravipal Maheswari, P.L.


                    Hon'ble Smt. Justice Rajani Dubey
                                Order on Board

11/02/2022


        Proceeding through video conferencing.

        Heard.

1. This writ petition is filed by the petitioner seeking appropriate direction to the respondent authorities to register an FIR against the respondents No. 5 & 6 and investigate the alleged criminal act of the aforesaid respondents involving into the cognizable offence.

2. The facts projected by the petitioner are that the marriage of the petitioner was solemnized on 31.05.2010 with Smt. Yashoda Yadav and out of wedlock two female children were born. On 13.10.2021 the wife of the petitioner took five lakh rupees and had left the house with her brother. Thereafter, the petitioner along with his children went to his

father-in-law's house to take back his wife, but at the time of conversation between husband and wife, younger and elder brother-in-law of the petitioner rushed and made quarrel with him and said that their sister will never go back with him and used filthy language. After that the petitioner went to the police station Golebazar to lodge a written complaint but the police has not registered the F.I.R. and said that this is the case of non- interference of police so that police has issued notice dated 02.11.2021 and 16.12.2021, which are annexed herewith as Annexure-P/2 and P/3. On 02.11.2021 oral complaint has been submitted before the police station Golebazar, Raipur, District Raipur against the respondents No. 5 and 6 to take appropriate action against the respondents No. 5 and 6 but the FIR has not been registered.

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 call for entire records pertaining to the case of the petitioner.

10.2. That this Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus directing the respondent No. 4 police station Golebazar to register the First Information Report against the respondents No. 5 and 6.

10.3. That this Hon'ble Court may further be pleased to pass any other order in favour of petitioner as it may deem fit and proper under the facts and circumstances of the case with cost.

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.