Shiv Kailash vs State Of Chhattisgarh
2022 Latest Caselaw 4797 Chatt

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                                                                            NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                                 WPCR No. 613 of 2022
     • Shiv Kailash S/o Late Sunder Yadav Aged About 58 Years R/o
       Village Kaskela, P.S. Bhatgaon, District Surajpur Chhattisgarh
                                                                      ---- Petitioner
                                       Versus
     1. State Of Chhattisgarh Through Secretary, Department Of Home
        (Police), Mahanadi Bhawan, Naya Raipur, Revenue And Civil
        District Raipur Chhattisgarh
     2. Inspector General Of Police Sarguja Range, District Sarguja
        Chhattisgarh
     3. Superintendent         Of    Police      Surajpur,      District    Surajpur
        Chhattisgarh
     4. Station House Officer Bhatgaon, District Surajpur Chhattisgarh
     5. Collector Surajpur District Surajpur Chhattisgarh
                                                                 ---- Respondents
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For Petitioner : Shri Surfaraj Khan, Advocate For respondents/State : Shri Ajay Kumarani, Panel Lawyer

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Hon'ble Shri Justice N.K. Chandravanshi Order On Board 27.7.2022

1. The petitioner has filed this writ petition under Article 226 of the Constitution of India against inaction on the part of the respondent authorities, whereby they have not taken any action on the complaint filed by the petitioner for registration of First Information Report (FIR) against the offenders despite the fact that the complaint disclosed commission of cognizable offence.

2. Case, as projected by the petitioner, is that the petitioner is permanent resident of village Kaskela and the persons against whom the complaint has been made are the then office bearers of village panchayat Kaskela. It is alleged that being Sarpanch, Upsarpanch, Secretary and Data Entry Operator, the alleged offenders, without completing various works in the aforesaid

village, have embezzled more than Rs. 12 lakh by way of using forged documents, thus, they committed the offence of cheating. Even in enquiry report, which was conducted by a team of various government officials, it has been reported that the alleged offenders have committed irregularities in construction works and they have fabricated false vouchers, therefore, the amount embezzled by them is liable to be recovered from them and FIR may be lodged against them. It is further alleged that despite complaint made to the respondent authorities, they did not register FIR, hence, the petitioner has filed instant writ petition seeking following relief:-

10.1 That, this Hon'ble Court may kindly be pleased to issue a writ (s), order (s), direction (s) by directing the respondent authorities, particularly Station House Officer Bhatgaon (Respondent No.4) to comply with the directions and procedure as mandated against the offender (s) as mentioned in written complaint and to comply with the Inquiry report (Annexure-P/1), as per Section 154 of the CrPC and the guidelines issued by the Hon'ble Supreme Court of India in the case Lalita Kumar Vs. Government of Uttar Pradesh & Others, in the interest of justice.

10.2 That, this Hon'ble Court may kindly be pleased to call for the records of the matter. As an alternative relief, the petitioner pray that, the matter may kindly be referred to an independent investigation agency for investigating the entire matter.

10.3 Any other relief(s) in form of order or orders and/or direction (s) as your lordships may deem fit and proper.

3. Learned counsel for the petitioner submits that earlier the complainant had filed complaint to the police of Police Station Bhatgaon, but acknowledgment of said complaint was not given to the petitioner and the police did not take any action, hence, he

filed written complaint before respondents 3 & 5. Despite that no action has been taken against the alleged offenders, whereas the complaint which is well supported by enquiry report, clearly indicates that the persons named in the complaint have embezzled huge amount causing loss to public exchequer, that too, without completing prescribed work, misappropriated more than Rs.12 lakh by making false and forged documents. Thus, the aforesaid act of the offenders clearly discloses cognizable offnece against them. Despite that the respondent authorities have not taken any action in this regard, whereas the Hon'ble Supreme Court in the matter of Lalita Kumari vs. Govt. of UP & Ors. reported in (2014) 2 SCC 1 clearly held that if the information discloses commission of cognizable offence, then it is mandatory for the police to register FIR under Section 154 of CrPC. It has also been observed that in a given type of cases, preliminary enquiry may also be conducted. Dictum given by the Hon'ble Supreme Court in Lalita Kumari case (supra) has also been reiterated by this Court in the matter of Bhushan Singh Rathiya vs. State of Chhattisgrh & Ors. (WPCR No.09/2016). Hence, it is prayed that relief, as sought, may be granted to the petitioner.

4. On the other hand, learned counsel for the State appearing for the respondents would submit that if the police authorities/ respondents are reluctant to take any action with regard to registration of FIR against the alleged offenders, then the petitioner has alternative remedy by filing compliant before the concerned Judicial Magistrate First Class under Section 200 CrPC or they may also file application under Section 156 (3) of the CrPC. But in the instant case, the petitioner has not availed such remedy and has directly filed writ petition under Article 226 of the Constitution of India, invoking writ jurisdiction of this Court, which is not permissible under the law as has been reiterated in various judgments passed by the Hon'ble Apex Court like Sakiri Vasu vs. State of UP and Ors. reported in 2008(2) SCC 409.

Hence, the petitioner is not entitled to get any relief in this petition.

5. I have heard learned counsel for the parties and perused the material available on record.

6. Perusal of the relief sought by the petitioner in this petition would go to show that he has sought that the respondents, particularly respondent No.4 be directed to comply with directions and procedures as has been mandated by the Hon'ble Supreme Court in Lalita Kumari case (supra) in respect of complaint made by the petitioner and comply with the enquiry report. Although the petitioner has not stated directly that the respondent No.4 be directed to register FIR against the alleged offenders, but crux of the relief sought for by the petitioner is for the registration of the FIR against the alleged offenders.

7. In the case of Sakiri Vasu (supra) their Lordships of the Supreme Court has examined the issue in paragraphs 26 to 28, which read thus :-

" 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

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 CrPC 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 Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.

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."

8. The judgment delivered by Hon'ble Supreme Court in Sakiri Vasu (supra) has again come up for consideration in the case of N. Subramaniam and another -v- S. Janaki and another 1 and Hon'ble Supreme Court after considering the said judgment, has held in paras 7 and 9 as under :-

"7. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 : (2016) 2 SCC (Cri) 549] , in which it is observed :

"2. This Court has held in Sakiri Vasu v.

State of U.P.(supra), 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

1 (2020) 16 SCC 728

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 (supra) 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.

3. 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.

4. In view of the settled position in Sakiri Vasu case (supra), the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned

is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court."

9. In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18-9-2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the Court of the Metropolitan Magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest."

9. Thus, applying the ratio of law laid down by the Supreme Court in the afore-cited cases to the facts of the case at hand, it would appear that writ petition under Article 226 of the Constitution of India is not maintainable before this Court and that discretionary power under Article 226 of the Constitution of India for direction for registration of FIR or direction for investigation may be very rarely exercised by the High Court, that too, in those cases where failure of justice/miscarriage of justice is apparent, because, for such grievance, it is open for the petitioners to

approach the Court of Judicial Magistrate having territorial jurisdiction over the place of offence, if it deems proper and necessary for filing of complaint under Section 156(3) or Section 200 of the Criminal Procedure Code, 1973.

10. In view of the aforesaid discussion and also in view of the decision rendered by Hon'ble Supreme Court in the cases referred herein above, present petition filed under Article 226 of the constitution of India stands disposed of with liberty in favour of the petitioner to file complaint under Section 200 or 156(3) of the CrPC before the Court of Judicial Magistrate First Class, having jurisdiction over the place of offence. If such complaint is filed, the Magistrate will follow the procedure under the provisions of law to decide the case on its own merits, without being influenced by any of the observations made by this Court.

11. It will not be out of place to mention here that if such complaint is filed, then the learned Magistrate is also expected to follow the guidelines given by the Hon'ble Supreme Court in the case of Priyanka Shrivastva vs. State of UP. reported in (2015) 6 SCC 287.

12. In view of the above, instant writ petition (Criminal) stands disposed of with the aforesaid liberty granted in favour of the petitioner.

Sd/-

(N.K. Chandravanshi) JUDGE Bini