Laxman Sahu vs State Of Chhattisgarh
2022 Latest Caselaw 206 Chatt

Citation : 2022 Latest Caselaw 206 Chatt
Judgement Date : 12 January, 2022

Chattisgarh High Court

Laxman Sahu vs State Of Chhattisgarh on 12 January, 2022

                                                                       NAFR

              HIGH COURT OF CHHATTISGARH, BILASPUR

                           WPCR No.43 of 2022

     • Laxman Sahu, S/o Shivkumar, Aged About 29 Years, R/o Village
       Jhal, Tahsil Nawagarh, District Bemetara, Chhattisgarh

                                                               ---- Petitioner

                                   Versus

     1. State Of Chhattisgarh, Through The Secretary, Home (Police)
        Department, Mahanadi Bhawan, Mantralaya, Nawa Raipur, Atal
        Nagar, District - Raipur, Chhattisgarh

     2. The Superintendent Of Police, District - Bemetara, Chhattisgarh

     3. Station House Officer, Police Station, Nawagarh, District - Bemetara
        Chhattisgarh

     4. Pardeshi Ram Rajak, Aged About 40 Years, R/o Ward No.11,
        Shankar Nagar, Nawagarh, Nawagarh, District - Bemetara
        Chhattisgarh

                                                           ---- Respondents

For Petitioner                    Mr. C. K. Sahu, Advocate
For Respondent-State              Mr. Akash Pandey, PL


                    Hon'ble Justice Smt. Rajani Dubey

                              Order On Board

                 Proceeding through Video Conferencing

12/01/2022

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

to the respondent authorities to conduct an enquiry into the written

complaint filed by the petitioner against respondent No.4.

2. The facts projected by the petitioner are that the respondent No.4

executed an agreement for sale with the petitioner in respect of land

bearing Khasra No.678/2, admeasuring area 0.04 hectare situated

at Village Nawagarh, P. H. No.12, Tahsil Nawagarh, District Bemetara. According to the said agreement, the sale deed was to

be executed till May, 2022. However, without cancelling the

agreement to sale executed in favour of the petitioner, the

respondent No.4 sold out the said land to one Dilip Kumar

Maheshwar behind the back of the petitioner without refunding the

advance amount of Rs.14 Lakhs, thereby he committed cheating

and fraud with the petitioner. Thereafter, the petitioner approached

the respondent authorities making several complaints against

respondent No.4, but till date no action has been taken.

3. 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."

4. 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 1 (2008) 2 SCC 409 2 (2020) SCC Online SC 341 judgment has held in para 7 & 9 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 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.

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.