Kabirul Islam vs State Of Jharkhand
2021 Latest Caselaw 520 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P (Cr.) No. 233 of 2018
      Kabirul Islam                                     .... .... Petitioner(s).
                                  Versus
      1.    State of Jharkhand
      2.    Director General of Police, Ranchi
      3.    Inspector General of Police, Santhal Pargana, Dumka
      4.    Superintendent of Police, Pakur
      5.    Officer-in-charge,P.S - Maheshpur, Pakur
      6.    Rahibuddin
      7.    Reazuddin
      8.    Quamrul Islam                                .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

THROUGH : VIDEO CONFERENCING

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FOR THE PETITIONER(S) : Mr. Rajeeva Sharma, Sr. Advocate Mr. Sunil Kumar Mahto, Advocate FOR THE RESPONDENT-STATE : Mr. Kaushik Sarkhel, GA-V

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07/04.02.2021 Heard learned counsel for the parties. The lawyers have no objection with regard to the proceeding, which has been held through video conferencing today at 11.00 A.M. They have no complaint in respect to the audio and video clarity and quality.

2. Petitioner has filed the instant petition under Article 226 of the Constitution and has prayed to direct the respondents to register an FIR on the written complaint made by the petitioner.

3. Grievance of the petitioner is that though a cognizable offence is made out from the written report yet the police is not registering FIR, nor even investigating the same.

4. Counsel for the petitioner submits that police could not have denied registering FIR, when it is the mandate of law that when a cognizable offence is made out, FIR has to be registered.

5. Learned G.A-V submits that approaching the Hon'ble High Court by filing application under Article 226 of the Constitution is not an appropriate remedy. He submits that in this type of cases there is remedy under Code of Criminal Procedure. He submits that if an FIR has not been registered, proposed informant should approach before the Magistrate in terms of Code of Criminal Procedure. In support of his contention learned G.A-V refers a judgement in the case of Sakiri Vasu Vrs. State of Uttar Pradesh and Ors reported in (2008) 2 SCC 409.

6. The main grievance of the petitioner is that police officer is not registering an FIR even when from perusal of the complaint/written report which has been submitted before the police, a cognizable offence is made out. In the instant case I am not going into the question as to whether any cognizable offence is made out or not. The proposition of law is quite clear and is well established by judgments of the Hon'ble Supreme Court as reported in Lalita Kumari Vrs. State of Uttar Pradesh. reported in (2014) 2 SCC 1 that when a cognizable offence is made out and the matter is reported to police, the police cannot refuse to register an FIR. Issue here is different. The issue before this Court is what is the remedy available to a person, if the police does not register an FIR even if a cognizable offence is made out.

7. Hon'ble Surpeme Court in the case of Sakiri Vasu Vrs. State of Uttar Pradesh and Ors reported in (2008) 2 SCC 409 especially in paragraph 27 and 28 has 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 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 Cr.P.C and not by filing a writ petition or a petition under Section 482 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."

8. Further Hon'ble Supreme Court in the case of Sudhir Bhaskarrao Tambe Vrs. Hemant Yaswant Dhage & Others reported in (2016) 6 SCC 277 has followed and relied upon the judgment passed in the case of Sakiri Basu Vrs. State of U.P (Supra). In paragraph 2 of the aforesaid judgment the Hon'ble Apex Court has held as under:-

"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 unpder Section 156(3) Cr.PC is made and the Magistrate is, prima face, 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 is 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."

A caution has been put at Paragraph No.3 which read as under:-

"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."

9. This judgment has also been recently relied upon in a judgment delivered by the Hon'ble Supreme Court of India in the case of M. Subramaniam & Anr Vrs. S. Janaki & Anr. reported in (2020) SCC Online SC 341.

10. In view of the judgment passed by the Hon'ble Supreme Court, the issue is now well settled. If police is not registering the FIR, the remedy lies with the complainant to approach the Magistrate in terms of Code of Criminal Procedure. This alternative remedy is available to the complainant.

In view of the aforesaid judgments since an alternative remedy is available to the petitioner/complainant, I am not inclined to entertain this petition.

11. Accordingly, the instant criminal writ petition stands dismissed with a liberty to approach before the Magistrate concerned by invoking the statutory remedy available in the Cr.P.C.

12. It is made clear that I have not gone into the merit of the allegations and it should be considered by the Magistrate concerned as to whether it warrants an order under Section 156(3) Cr.P.C or not.

(ANANDA SEN , J) anjali/ C.P 3