Chattisgarh High Court
Md Abdul Wahab Azad vs State Of Chhattisgarh on 17 January, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 844 of 2021
Md Abdul Wahab Azad S/o Shri Sheikh Goush Ali Aged About
40 Years R/o Cb - 4 A. Camp - 1, Steel Nagar, Bhilai, Post
Supela, District Durg Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through Secretary, Department Of
Home Mantralaya, Mahanadi Bhawan, Raipur Chhattisgarh.
2. Director General Of Police Chhattisgarh, Police Head Quarter,
Raipur, District Raipur Chhattisgarh.
3. Inspector General Of Police Raipur Chhattisgarh.
4. Superintendent Of Police Bilaspur Chhattisgarh.
5. Station House Officer Police Station Sakri, District Bilaspur
Chhattisgarh.
6. Pradip Kumar Yadav Security Guard At Composite Hospital
Crpf Bilaspur Chhattisgarh.
---- Respondents
For Petitioner : Mr. Rahil Arun Kochar, Adv.
For State : Mr. Anurag Verma, PL
Hon'ble Smt Justice Rajani Dubey
Order on Board
17.01.2022
1. Heard.
2. The present petition has been filed by the petitioner being
aggrieved by the inaction of the police authorities whereby
despite complaint made by the petitioner against respondent
No. 6, the police authorities are not investigating this matter
with fair manner.
3. On the basis of this factual matrix, the petitioner has filed this
petition and prayed for following relief:-
10.1. That this Hon'ble Court may kindly be pleased to issue
a writ in the nature of mandamus directing concerned police
authorities to lodge the FIR accordance with law.
4. Learned State counsel opposed the prayer made through this
petition.
5. 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."
6. 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."
7. 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.
8. 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.
9. With the aforesaid observations, this petition is finally
disposed of with the aforesaid liberty in favour of the
petitioner.
Sd/-
(Rajani Dubey)
Judge
v/-
