Chattisgarh High Court
Sher Singh vs State Of Chhattisgarh on 11 February, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 246 of 2022
Sher Singh S/o Mohan Singh, Aged About 45 Years, R/o Qr. No.
H-1-H/C.A.F. Sakri Batallion Bilaspur, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Home
Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, New
Raipur Chhattisgarh.
2. Director General of Police, Atal Nagar, New Raipur District
Raipur Chhattisgarh.
3. Superintendent of Police, Bilaspur Near District Court
Campus, Bilaspur Chhattisgarh.
4. The Station House Office, Police Station Sakri, Bilaspur,
District Bilaspur Chhattisgarh.
5. The Station House Officer, Police Statin Fulbagdi Sukma,
District Sukma Chhattisgarh.
6. The Commandant Officer of The Commandant Sakri, Second
Battalion (C.A.F.) Sakri, Bilaspur, District Bilaspur
Chhattisgarh.
---- Respondents
For Petitioner : Mr. Anil Kumar Trivedi, Adv.,
from the help desk
For State : Mr. Ali Asgar, Dy. A.G.
Hon'ble Smt Justice Rajani Dubey
Order on Board
11.02.2022
1. Heard.
2. The present petition has been filed by the petitioner being
aggrieved by the inaction of the respondent parties whereby
despite making complaint, police authorities are not lodging FIR
against his wife.
3. Petitioner had filed an application to the concerned police
authorities as well as Superintendent of Police for lodging an FIR
against her wife alleging that she always used to talk to someone
else over telephone and also she would go outside with that person
and thus, she committed cheating with the petitioner.
4. Through this petitioner learned counsel for the petitioner
prayed for a direction to the respondents to register the complaint
case of the petitioner against his wife.
5. 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
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.
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 petitioner.
Sd/-
(Rajani Dubey)
Judge
v/-
