Chattisgarh High Court
Saradhu Koreti vs State Of Chhattisgarh on 14 March, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 615 of 2019
1. Saradhu Koreti S/o Nirig Sai Aged About 40 Years President,
Adivasi Khadan Shramik Kalyan Sahakari Samiti Maryadit
Pallemadi Khadgaon, R/o Post Khadgaon Tahsil Manpur,
District Rajnandgaon, Chhattisgarh.
2. Dhaniram Patel S/o Firtu Ram, Village Khadgaon, Post
Khadgaon, Tahsil Manpur, District Rajnandgaon, Chhattisgarh.
---- Appellants
Versus
1. State of Chhattisgarh Through The Secretary, Home
Department, Mantralaya Mahanadi Bhawan, Capital Complex
New Raipur, District Raipur, Chhattisgarh
2. The Superintendent of Police Rajnandgaon, office of
Superintendent of Police Rajnandgaon, District Rajnandgaon,
Chhattisgarh
3. Station House Officer Police Station Khadgaon, Tahsil Manpur,
District Rajnandgaon, Chhattisgarh.
4. Smt. Khagesh Thakur W/o Uttam Kumar Aged About 37 Years
Authorised Person By Adivasi Khadan Sharmik Kalyan Sahakari
Samiti Maryadit Pallemadi Khadgaon, R/o Village Metepar, Post
Kaudikasa Kharsia, Thana And Tahsil Ambagarh Chowki,
District Rajnandgaon, Chhattisgarh. (Petitioner No. 3)
---- Respondents
(Cause-title taken from Case Information System)
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For Appellants : Mr. N.K. Malviya, Adv.
For Respondents No. 1 to 3 : Mrs. Meena Shashtri, Addl. Adv. General.
Reserved on 14-2-2022
Judgment delivered on 14-3-2022
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Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. N.K. Chandravanshi, Judge
CAV JUDGMENT
Per N.K. Chandravanshi, J.
1. This writ appeal has been preferred against the order dated
7-3-2019 passed by the learned Single Judge in WPCR No. 668/2018,
whereby the writ petition filed by the appellants/petitioners (hereinafter
referred to as "petitioners") for direction to the respondents for registering FIR
has been dismissed.
2. Facts of the case, as projected by the petitioners, are that in
District Rajnandgaon, two Iron ore mines i.e. M/s Sarda Energy and Mineral
Ltd. and M/s. Godawari Power and Ispat Limited were functioning. Due to
Naxalite activities, in the year 2008, these mines were closed and 362
labourers including petitioners were removed from service fraudulently. From
13-4-2010 to 10-8-2010 and from 23-3-2012 to 1-7-2012, and finally since
22-2-2014, above mines were re-opened, but services of petitioners and other
workers were not restored, despite being approached by them. Therefore, on
an agitation being launched, an Inquiry Committee was constituted by the
Collector and complaints were also given to the Station House Officer,
Khadgaon, District Rajnandgaon and Superintendent of Police, Rajnandgaon
for lodging FIR. Despite that, no action was taken by the police. Thereafter,
the petitioners filed the Writ Petition (Cr) before this Court.
3. Learned Single Judge, after hearing both the sides, passed the
following order :-
"1. Heard.
2. The present petition is for lodging the FIR against
the persons who committed offence as per the complaint
dated 25.05.2018.
3. Learned counsel for the petitioner submits that
without lodging the FIR the police cannot come to
conclusion that no cognizable offence is committed. He
placed his reliance in the order passed by this Court in
WPCR No.9 of 2016 dated 26.08.2016.
4. Perused the documents and report of the Station
House Officer, Police Station Khadgaon, Tahsil Manpur,
District Rajnandgaon which shows that the complaint was
made against the M/s Sarda Energy and Minerals Limited
that they opened mining at Pallemadi village, District
Rajnandgaon and they conducted the mining in the year
2008. The company was closed down and the resignation
letters of the labourers were obtained, which do not bear
the signatures of the labourers, therefore, that should be
enquired into. Perusal of the report further shows that after
the complaint was received, the enquiry was made by the
police and the complainant was also asked to submit the
list of the workers but no such list was ever furnished. It
further reveals that the company had not engaged the
labourers directly and the labourers were engaged through
contractors. Further report reveals that the case of the
labourers and the contractor is pending before the Court
and it would be appropriate to wait for the decision of the
Court and after enquiry no cognizable offence was ever
found to have been committed. In view of such document
prima facie it appears that the dispute inter se is about
service jurisprudence and certain proceedings are pending
before the Labour Court or Tribunal. If the cognizable
offence is not been committed then in such case the Court
cannot make it cognizable by the order. If the petitioner is
so aggrieved, he can file complaint before the competent
court.
5. The petition has no merit. It is accordingly
dismissed."
4. Learned counsel for the petitioners submits that the petitioners
belong to Scheduled Tribe category, they have been removed by the
company on the basis of forged document, as their signatures were obtained
in blank papers, which were fabricated as their resignation, by the company,
thereby, officers of the company cheated them. Since, they were tribal people,
therefore, they were demeaned and exploited also. It is further submitted that
petitioners have never approached any Court of law, especially, Labour Court,
to raise their dispute, therefore, the question of the dispute being of service
jurisprudence, as observed by learned Single Judge, does not arise. Reports
of the Inquiry Committee and Police have been prepared without affording
due opportunity of hearing to the petitioners, and the inquiry report submitted
by the Station House Officer, PS Khadgaon, Distt. Rajnandgaon to the
Superintendent of Police, Rajnandgaon is against Rule 7 of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for
short "SCST Rules"), because, as provided in the aforesaid Rule, it has not
been prepared by the Dy. Superintendent of Police or by the officer of higher
in rank. It is further submitted that petitioners, who belong to tribal community
have been cheated, exploited and deprived of their livelihood by fabricating
their false resignation documents. Officers of the company have committed
crime under the various provisions of Scheduled Caste and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and IPC also, which constitutes
cognizable offence, despite that, no FIR has been registered against those
persons, which is also violative of constitutional right of the petitioner, but the
same has not been taken into proper consideration by learned Single Judge.
5. Hence, it is prayed that the writ appeal as well as the writ petition
be allowed and the reliefs, as prayed for, be granted.
6. Learned counsel for the petitioner placed reliance on Lalita
Kumari -v- Govt. of UP and others [(2014) 2 SCC 1], and Prathvi Raj
Chauhan -v- Union of India and others [2020(4) SCC 727].
7. Learned Addl. Advocate General appearing for the State, while
referring to the preliminary reply submitted on behalf of respondents No. 1 to
3, submits that the matter has been inquired by the Inquiry Committee
constituted by the Collector and also by the police, but no cognizable offence
has been found to be made against alleged accused persons. It is further
submitted that the labourers were engaged by contractor and they have filed
a case before the Industrial Tribunal - cum - Labour Court (Central),
Jabalpur /Dy Chief Labour Commissioner (Central), Raipur, therefore, learned
Single Judge, considering entirety of facts of the case, has dismissed the case
of petitioners, which does not call for any interference by this Court.
8. We have heard learned counsel for both the sides and perused
the materials available on record.
9. Facts of the case show that it is a case of removal of workers
from services of the company. The documents available on record also show
that many labourers are still working in the mines and labourers were also
engaged in mines through contractors, and many have raised their disputes
before Labour Court/Dy. Chief Labour Commissioner.
10. Main grievance of the petitioners seems to be that the petitioners
and many other labourers, who are said to be tribal people, have been
removed from their services on the basis of alleged fabricated resignations,
and have not been taken back, and thereby, they have been cheated by the
officers of the company as mentioned in complaint dated 25-5-2018, which
constitutes cognizable offence. Therefore, police ought to have registered FIR
against those persons, as stated in the complaint dated 25-5-2018. Thus, the
petitioners want indulgence of this Court for direction of registering of FIR.
11. Indulgence of the High Court by using discretionary power under
Article 226 of the Constitution of India for direction of registration of FIR or for
investigation, has been considered by Hon'ble Supreme Court in various
cases. In the case of Divine Retreat Centre v. State of Kerala [(2008) 3
SCC 542], in paras 41 and 42, their Lordships have observed that :-
"41. It is altogether a different matter that the High Court in
exercise of its power under Article 226 of the Constitution
of India can always issue appropriate directions at the
instance of an aggrieved person if the High Court is
convinced that the power of investigation has been
exercised by an investigating officer mala fide. That power
is to be exercised in the rarest of the rare case where a
clear case of abuse of power and non-compliance with the
provisions falling under Chapter XII of the Code is clearly
made out requiring the interference of the High Court. But
even in such cases, the High Court cannot direct the police
as to how the investigation is to be conducted but can
always insist for the observance of process as provided for
in the Code.
42. Even in cases where no action is taken by the police
on the information given to them, the informant's remedy
lies under Sections 190, 200 CrPC, but a writ petition in
such a case is not to be entertained. This Court in
Gangadhar Janardan Mhatre v. State of Maharashtra
[(2004) 7 SCC 768] held:
"13. When the information is laid with the police, but
no action in that behalf is taken, the complainant is
given power under Section 190 read with Section
200 of the Code to lay the complaint before the
Magistrate having jurisdiction to take cognizance of
the offence and the Magistrate is required to enquire
into the complaint as provided in Chapter XV of the
Code. In case the Magistrate after recording
evidence finds a prima facie case, instead of issuing
process to the accused, he is empowered to direct
the police concerned to investigate into offence
under Chapter XII of the Code and to submit a
report. If he finds that the complaint does not
disclose any offence to take further action, he is
empowered to dismiss the complaint under Section
203 of the Code. In case he finds that the
complaint/evidence recorded prima facie discloses
an offence, he is empowered to take cognizance of
the offence and would issue process to the accused.
These aspects have been highlighted by this Court
in All India Institute of Medical Sciences Employees'
Union (Regd.) v. Union of India [(1996) 11 SCC
582 : 1997 SCC (Cri) 303] . It was specifically
observed that a writ petition in such cases is not to
be entertained."
12. In the case of Sakiri Vasu -v- State of UP and others [(2008(2)
SCC 409], Hon'ble Supreme Court in paras 27 and 28 has observed that :-
"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."
13. The judgment passed 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 [(2020) 16 SCC 728] 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 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."
14. After considering the above legal propositions, we are not
impressed by the contentions put forth before us by the learned counsel for
the petitioner, as, it is apparent from above proposition of law, 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 used 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 petitioner 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. The
learned Single Judge has rightly observed that, if the petitioner is aggrieved,
he can file complaint before the competent Court. In the event of filing of
such complaint, the Magistrate will follow the prescribed procedure under the
provisions of law to decide the case on its own merit, without being influenced
by any of the observations made hereinabove.
15. Considering the entirety of the case and material available on
record and also in view of the law laid down by Hon'ble Supreme Court in
above referred cases, we do not find any substance in this writ appeal to
interfere with the order passed by learned Single Judge.
16. Consequently, the writ appeal filed by the appellants/petitioners is
dismissed. No costs.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K. Chandravanshi)
Chief Justice Judge
Pathak/-
