Shankar Lal Dayalani vs State Of Chhattisgarh
2022 Latest Caselaw 381 Chatt

Citation : 2022 Latest Caselaw 381 Chatt
Judgement Date : 24 January, 2022

Chattisgarh High Court

Shankar Lal Dayalani vs State Of Chhattisgarh on 24 January, 2022

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                                                                          NAFR


       HIGH COURT OF CHHATTISGARH, BILASPUR
                        WPCR No. 83 of 2022
    Shankar Lal Dayalani S/o Late Shri B.R. Dayalani, Aged About
     50 Years R/o- Sindhi Colony, Jarhabhata, P.S.-Civil Lines,
     Tahsil- Bilaspur, District- Bilaspur, Chhattisgarh.
                                                               ---- Petitioner
                                   Versus
   1. State Of Chhattisgarh Through Secretary Department Of
      Home Affairs (Police), Mahanadi Bhawan, Naya Raipur,
      District- Raipur, Chhattisgarh.
   2. Director, General       Of       Police,   Raipur,    District-    Raipur,
      Chhattisgarh.
   3. Inspector General Of Police, Bilaspur Range, District- Bilaspur,
      Chhattisgarh.
   4. Superintendent     Of    Police,       Bilaspur,     District-    Bilaspur,
      Chhattisgarh.
   5. Station House Officer, Police Station Civil Lines, Bilaspur,
      District- Bilaspur, Chhattisgarh.
                                                           ---- Respondents

For Petitioner : Mr. Surfaraj Khan and Ms. Deepali Dubey, Adv.

For State                          :        Mr. Ali Asgar, Dy. A.G.

                  Hon'ble Smt Justice Rajani Dubey
                          Order on Board
24.01.2022

   1. Heard.

2. The present petition has been filed by the petitioner being

aggrieved by the inaction of the police authorities whereby

despite registration of FIR on 28.07.2020 vide FIR No.

534/2020 against the accused persons, 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 against the

respondent authorities, particularly respondent No. 5

by commanding the police authorities to fairly

investigate the matter as per the procedure and to

submit the final report (Charge-sheet) as per the law,

within the time bound, in the Court having jurisdiction

to try the same.

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.