Chattisgarh High Court
Jawahar Lal Netam vs State Of Chhattisgarh on 19 January, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No.61 of 2022
• Jawahar Lal Netam, S/o Late Nanhu Netam, Aged About 65 Years,
R/o Village Kathakoni, Tehsil Takhatpur, District Bilaspur,
Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh, Through Secretary, Police Department,
District Raipur Chhattisgarh
2. The Superintendent Of Police, Raigarh, District Raigarh
Chhattisgarh
3. The Station House Officer, Police Station Karsiya, District Raigarh
Chhattisgarh
4. Shailendra Shriwas, S/o Late Suduram Shriwas, Aged About 35
Years, R/o Kotra Road, Raigarh, District Raigarh Chhattisgarh
---- Respondents
For Petitioner Mr. Saket Pandey, Advocate
For Respondent-State Mr. Ali Asgar, Dy. AG
Hon'ble Justice Smt. Rajani Dubey
Order On Board
Proceeding through Video Conferencing
19/01/2022
1. The petitioner has preferred the present petition seeking a direction
to the respondent authorities to conduct proper investigation and
prepare a fresh final report and subsequent trial be done
accordingly.
2. The facts projected by the petitioner are that the daughter of the
petitioner married to respondent No.4 on 01.01.2009 and she is
being harassed by her husband for many years. On 16.06.2021, the
respondent No.4 with an intent to cause an accident hit a goat, as a
result of which the daughter of the petitioner sitting in backseat got
injured grievously and during treatment she died in the hospital. The
report was lodged of accident under Section 304 of IPC and
investigation was carried out by the Investigating Officer. Thereafter
the final report was prepared, but the said report is not accurate, as
the charges framed are under Section 304 of IPC, instead it should
have been under Section 302 of IPC. The petitioner preferred
various representations for proper investigation relating to the death
and murder of her daughter, 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
1 (2008) 2 SCC 409
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 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
2 (2020) SCC Online SC 341
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
