Purnima Dagor vs State Of Chhattisgarh
2022 Latest Caselaw 504 Chatt

Citation : 2022 Latest Caselaw 504 Chatt
Judgement Date : 28 January, 2022

Chattisgarh High Court

Purnima Dagor vs State Of Chhattisgarh on 28 January, 2022

                                      1

                                                                  NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                           WPCR No. 109 of 2022
      Purnima Dagor W/o Late Subhash Dagor Aged About 34 Years
       R/o Ward No. 9, Nagar Panchayat- Sargaon, Dist- Mungeli,
       Chhattisgarh.
                                                         ---- Petitioner
                                   Versus
     1. State of Chhattisgarh, Through- Its Secretary, Department of
        Home And Police Affairs, Secretariat, Mahanadi Bhawan, New
        Raipur, P.S. And Post Rakhi, District- Raipur, (C.G.)
     2. Director General of Police, Police Head Quarter, Mahanadi
        Bhawan, New Raipur, P.S. And Post Rakhi, District- Raipur,
        Chhattisgarh.
     3. Inspector General of Police Tahsil Bilaspur, Dist.- Bilaspur,
        (C.G.).
     4. Superintendent of Police, District- Mungeli, (C.G.).
     5. Police Station Through- Officer In-charge Sargaon, Dist.-
        Mungeli, (C.G.).
     6. The Chief Executive Officer Nagar Panchayat Sargaon, Dist.-
        Mungeli, (C.G.).
                                                      ---- Respondents

For Petitioner              :      Mr. Badruddin Khan, Adv.
For State                   :      Mr. Ravipal Maheshwari, P.L.


                  Hon'ble Smt. Justice Rajani Dubey
                                Order on Board
28/01/2022


        Proceeding through video conferencing.

        Heard.

1. This writ petition is filed by the petitioner seeking appropriate direction to the respondent authorities to investigate the alleged criminal act of the culprits involving into the cognizable offence.

2. The facts projected by the petitioner are that husband of the petitioner was posted as sweeper in Nagar Panchayat, Sargaon and the petitioner was sent to the village- Bharrakona for cleaning the septic tank without giving safety instrument. The petitioner went to village- Bharrakona for cleaning the septic tank and he died during

the cleaning of the tank due to suffocation, police lodged marg intimation without lodging the FIR. The petitioner made a complaint before the police authorities for taking action against the culprit employee of the Nagar Panchayat, Sargaon as well as the respondent No. 5 wrote a letter to the respondent No. 4 for taking action. The respondent authorities have not taken any action against the culprit employee/officer of the Nagar Panchayat, Sargaon.

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 for the entire records pertaining to the case of petitioner, if it is available.

10.2. That the Hon'ble Court may kindly be pleased to direct the respondent authorities to register FIR and complete investigation and arrest the culprit in the interest of justice.

10.3. That the Hon'ble Court may kindly be pleaded to pass any order in nature of the case.

10.4. Cost of the petition may also be granted.

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) Cr.P.C. If such an application under Section 156 (3) Cr.P.C. 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) Cr.P.C. 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.