Sunil Kumar Ekka vs State Of Chhattisgarh
2022 Latest Caselaw 5 Chatt

Citation : 2022 Latest Caselaw 5 Chatt
Judgement Date : 3 January, 2022

Chattisgarh High Court

Sunil Kumar Ekka vs State Of Chhattisgarh on 3 January, 2022

                                       1

                                                                           NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                          WPCR No. 865 of 2021

      Sunil Kumar Ekka, S/o Late Jadubir Ekka, Aged About 42
       Years, R/o Ward No. 8 Balrampur, Tahsil & Police Station
       Balrampur, District - Balrampur - Ramanujganj Chhattisgarh.

                                                                 ---- Petitioner

                                    Versus

     1. State of Chhattisgarh, Through - Secretory of Home Ministry
        Mahanadi    Bhawan,      Mantralaya,         Capital    Complex,   Naya
        Raipur, District Raipur Chhattisgarh.

     2. The    Director   General     of   Police,     Police    Head   Quarter,
        Chhattisgarh, Raipur, District - Raipur Chhattisgarh

     3. The Inspector General of Police, Ambikapur Surguja Range,
        District - Surguja Chhattisgarh

     4. The Supereintendent of Police, Balrampur District - Balrampur
        - Ramanujganj Chhattisgarh

     5. The Station House Officer, Police Station Balrampur, District -
        Balrampur - Ramanujganj Chhattisgarh

     6. Rustam Ansari S/o Late Abdul Gaphur Ansari Aged About 60
        Years R/o Village - Dahejwar, Tahsil & Police Station -
        Balrampur, District - Balrampur - Ramanujganj Chhattisgarh.

                                                               ---- Respondents

For Petitioner             :        Mr. A.K. Yadav, Adv.
For State                  :        Mr. Sushil Sahu, P.L.



                  Hon'ble Smt. Justice Rajani Dubey
                               Order on Board
03/01/2022

1. The facts projected by the petitioner are that respondent No. 6 has committed forgery in Government revenue documents and

sold the Government land to some of the villagers. On 17.11.2018, Upper Collector, Balrampur enquired the case and found that respondent No. 6 has committed forgery, thereafter on the basis of complaint made by the petitioner, Collector cancelled lease of respondent No. 6 on 21.12.2018 and further directed for registering the FIR against respondent No. 6. On 13.09.2021, a written complaint has been submitted by the petitioner before the Collector Balrampur, District- Balrampur-Ramanujganj against respondent No. 6 and requested the Collector for inquiry and taking appropriate action against respondent No. 6 but FIR has not been registered. Petitioner has filed this petition for seeking direction to respondent No. 5 to register FIR against respondent No. 6. Hence, this petition.

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

a. The Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner.

b. The Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus directing the respondent No. 5 to register FIR against respondent No.6.

c. The Hon'ble Court may kindly be pleased to grant any other relief as it deems fit and proper in the facts and circumstances of the case.

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 the 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.