Chattisgarh High Court

Smt. Sulochana Sahu vs State Of Chhattisgarh on 11 January, 2022

                                                                        NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                             WPCR No.39 of 2022

     • Smt. Sulochana Sahu, W/o Yogendra Kumar Sahu, Aged About 55
       Years, R/o MIG-191, HUDCO Sector, Bhilai Nagar, Dist. Durg,
       Chhattisgarh.

                                                                ---- Petitioner

                                    Versus

     1. State of Chhattisgarh Through The Secretary, Home Department,
        Mahanadi Bhawan, New Raipur Chhattisgarh.

     2. Superintendent Of Police, Durg, Chhattisgarh

     3. Town Inspector, Kotwali, Bhilai Nagar, District Durg, Chhattisgarh

     4. Ajay Kumar, S/o Late Shri Abhijeet Kole, Aged About 35 Years, R/o
        House No.13, Sunflower Colony, Chakarbhata, Bilaspur,
        Chhattisgarh

     5. Smt. Manisha Sahu, W/o Ajay Kumar, Aged About 32 Years, R/o
        House No.13, Sunflower Colony, Chakarbhata, Bilaspur,
        Chhattisgarh

                                                            ---- Respondents

For Petitioner              Mr. T. K. Tiwari, Advocate
For Respondent-State        Mr. Ghanshyam Patel, GA


                     Hon'ble Justice Smt. Rajani Dubey

                               Order on Board

                  Proceeding through Video Conferencing

11/01/2022

1. The petitioner has preferred the present petition seeking a direction

to the respondent authorities to initiate investigation against

respondent Nos.4 & 5, as the report has already been lodged against

them by the husband of the petitioner.

2. The facts projected by the petitioner are that the respondent No.5,

the daughter of the petitioner, married to respondent No.4 and out of their wedlock, a baby girl was born. After the birth of the child, the

respondent No.5 stayed at her matrimonial house for about 3 months

and thereafter the respondent No.4 and respondent No.5 were

residing at Dhamtari. After some time, the relationship between them

got discontinued. In the year 2020, the husband of the petitioner

retired from the service from the Department of Bhilai Steel Plant and

he received approximately Rs.90 Lakhs as retirement dues. When

the respondent No.4 & 5 knew about this fact, they again united with

each other and started living together. The respondent No.5

expressed her desire to visit the matrimonial house, which was

happily accepted by the petitioner and her family members. In the

month of August, 2021, the respondent No.5 along with her daughter

came there for staying. After some time, the respondent No.5 started

demanding 50% of the retirement dues, which was turned down by

the petitioner and her husband, as a result of which a heated

conversation took place between them, upon which the son of the

petitioner Yogesh Sahu came there, intervened and warned

respondent No.5 not to demand the said amount. The respondent

No.5 stayed there for about 15 days and thereafter she along with

her daughter went to Bilaspur and started residing with her husband.

After one month, a false report was lodged by the respondent No.5

against the son of the petitioner Yogesh Sahu of committing rape

with her, thereafter an FIR was registered and Yogesh Sahu was

arrested. The petitioner and her husband appeared before the

respondent Nos.2 & 3 and submitted a written report against the

respondent Nos.4 & 5 on 10.12.2021, but till date no action has been

taken.

3. On the basis of the aforesaid factual matrix, the petitioner has filed

this petition and prayed for following reliefs:-

"10.1 The Hon'ble Court may be pleased to issue a writ of mandamus commanding respondent Nos.2 & 3 to initiate an enquiry on the basis of the complaint lodged by the petitioner's husband dated 10.12.2021 (Annexure- P/6) and proceed further in accordance with the provision of law.

10.2 Any other relief, which this Hon'ble Court may deef mit and proper looking to the facts and circumstances of the case, may also be awarded to the petitioner including the cost and expenses of this petition."

4. The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of

Uttar Pradesh & others1 has examined the issue and has held in

paragraphs 27 & 28 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."

5. The judgment passed by the 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

& another2. 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

1 (2008) 2 SCC 409 2 (2020) SCC Online SC 341 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."

6. 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 for the

petitioner to approach the Court of Judicial Magistrate First Class

having territorial jurisdiction over the place of offence if he deems it

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, the Magistrate

will follow the procedure prescribed under the provisions of the

Cr.P.C.

7. 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.