Chattisgarh High Court

Brijbhan Singh Rajput vs State Of Chhattisgarh on 24 January, 2022

                                           1

                                                                                 NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                            WPCR No. 86 of 2022
      Brijbhan Singh Rajput S/o Late Shri Bhagwan Singh Rajput, Aged
       About 61 Years R/o Bachhalikhurd, Gram Panchayat, Bhaisajhar,
       Police Station - Ratanpur, Block - Kota, District - Bilaspur,
       Chhattisgarh.
                                                                      ---- Petitioner
                                       Versus
     1. State of Chhattisgarh, Through : The Secretary, Home (Police)
        Department, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District -
        Raipur, Chhattisgarh.
     2. The Collector, Bilaspur, District - Bilaspur Chhattisgarh.
     3. The Superintendent        of    Police,      Bilaspur,   District   -   Bilaspur
        Chhattisgarh.
     4. The Sub - Divisional Officer Police, Kota, District - Bilaspur,
        Chhattisgarh.
     5. The Station House Officer, Police Station, Ratanpur, District -
        Bilaspur, Chhattisgarh.
     6. Harvinder Singh, Posted As Inspector, Police Station, Ratanpur,
        District - Bilaspur, Chhattisgarh.
     7. Smt. Alka Raj W/o Sahdev Raj, Sarpanch, Gram Panchayat,
        Bhaisajhar, Police Station - Ratanpur, Block - Kota, District -
        Bilaspur, Chhattisgarh.
                                                                   ---- Respondents

For Petitioner              :          Mr. Goutam Khetrapal, Adv.
For State                   :          Mr. Ghanshyam Patel, G.A.


                    Hon'ble Smt. Justice Rajani Dubey
                                 Order on Board

24/01/2022


        Proceeding through video conferencing.

        Heard.

1. This writ petition is filed by the petitioner seeking appropriate direction to the respondent authorities to register an FIR against the culprits, who have prepared forged and fabricated bills and on the basis of same, the culprits have embezzled the government money.

2. The facts projected by the petitioner are that the petitioner and other villagers of Gram Panchayat, Bachhalikhurd have made complaint regarding preparation of forged and fabricated documents and embezzlement of government money and on the basis of said complaint,

the respondent No. 4 has conducted preliminary enquiry and recorded the statement of the witnesses and also inspected the relevant documents and after preliminary enquiry, the respondent No. 4 has concluded that the culprits have prepared forged and fabricated bills and embezzled the government money, therefore the respondent No. 4 has directed the respondent No. 6 to lodge FIR against the culprits and submit compliance report within two days. In spite of the said direction, till date the respondents No. 5 and 6 have not registered the offence against the culprits and providing shelter to the culprits. The conduct of the respondent No. 6 indicated that he is hand-in-glove with the culprits and due to which, he is providing shelter to the culprits by not complying with the direction fo the respondent No. 4 dated 18.11.2021. The petitioner has made complaint before the respondent No. 3 against the conduct of respondent No. 6 of not registering the offence against the culprits and providing shelter to the culprits, but till date the respondent No. 3 has not taken any action on the complaint of the petitioner.

2. On the basis of this factual matrix, the petitioner has filed this petition and prayed for following reliefs:-

10.1. That this Hon'ble Court may kindly be pleased to call the entire records pertaining to case of petitioner.

10.2. That this Hon'ble Court may kindly be pleased to issue an appropriate writ, thereby directing the respondent No. 5 to register the offence against the culprits and conduct enquiry in accordance with law, as per direction dated 18.11.2021.

10.3. That any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.

3. The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of Uttar Pradesh & others 1, 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, 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 Hon'ble the Supreme Court in Sakiri Vasu (Supra) has again come up for consideration before three judges (2008) 2 SCC 409 Bench in case of M. Subramaniam & another Vs. S. Janaki & another 2. 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 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.

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.