Chattisgarh High Court
Ku. Veena Sai vs State Of Chhattisgarh on 12 January, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No.47 of 2022
• Ku. Veena Sai, D/o Bisram Sai, Aged About 39 Years, R/o Tapkara
Road, Near Bus Stand, Kunkuri, District Jashpur Nagar (C.G.),
Present Address H. No.E49, Parshuram Nagar, Near Udyog Bhavan,
Telibanda, P.S. New Rajendra Nagar, Raipur (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Department of Home,
Mahanadi Bhawan, Atal Nagar, District- Raipur (C.G.)
2. Director General of Police, Police Head Quarter Raipur, District
Raipur (C.G.)
3. Inspector General Of Police, Raipur (C.G.)
4. Superintendent Of Police, Raipur (C.G.)
5. Rajesh Devdas, S.H.O. Police Station New Rajendra Nagar, Raipur
(C.G.)
6. Manisha Singh, D/o Madhav Singh, Aged About 31 Years, R/o
Madhav Nagar Colony, Sanjay Nagar, Police Station Madhav Nagar,
Katni, District Katni (M.P.)
---- Respondents
For Petitioner Mr. Amit Xalxo, Advocate
For Respondent-State Mr. Ayaz Naved, GA
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 register an FIR against respondent
No.6 and also to take disciplinary action against respondent Nos.4 &
5.
2. The facts projected by the petitioner are that on 07.12.2021 at about
3 pm, the respondent No.6 along with three unknown male persons
forcefully entered into the house of the petitioner and took mobile
phone of the petitioner. The two persons caught hold of the petitioner
and tried to outrage her modesty and another male accused person
was recording the whole incident on his mobile phone. Thereafter,
the respondent No.6 entered into the bedroom of the petitioner and
took jewellary of the petitioner from the almirah. On raising alarm, the
neighbors of the petitioner came there, then the respondent No.6
along with other accused persons threatened the petitioner of the
serious consequences and fled away from the house of the
petitioner. After enquiry, the petitioner came to know that the
respondent No.6 was the wife of landlord of the petitioner and is
presently residing in Katni after separation with her husband.
Thereafter, the petitioner approached the concerned police station
and narrated the whole incident to the respondent No.5, but he
refused to lodge a report and did not even take written complaint of
the petitioner. Being aggrieved by the inaction of the respondent
No.5, the petitioner made a written complaint to the 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
1 (2008) 2 SCC 409
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
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
2 (2020) SCC Online SC 341
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.
7. With the aforesaid observations, the writ petition (criminal) is finally
disposed of with the aforesaid liberty in favour of the petitioner.
8. It is made clear that this Court has not expressed any opinion on
merits of the case and whether the averments made in the petition
disclose 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.
Sd/-
(Rajani Dubey)
Judge
Nirala
