Jharkhand High Court
Babita Devi Aged About 44 Years vs The State Of Jharkhand Through ... on 2 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 202 of 2021
Babita Devi aged about 44 years, W/o Late Chhakkan Bhuiyan,
R/o PS-Chouparan, Machla, P.O. Brindawan, District-Hazaribagh.
..... ... Petitioner
Versus
1. The State of Jharkhand through Director General of Police,
P.O.+P.S.-Dhurwa, District-Ranchi.
2. Superintendent of Police, P.O. + P.S.+District-Hazaribagh
3. Deputy Superintendent of Police, P.O. + P.S.-Barhi,
District-Hazaribagh. ..... ...Respondents.
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Anup Kumar Agrawal, Advocate
For the State : Mr. Ashish Kumar, A.C. to S.C. (Mines)-III.
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04/ 02.09.2021 Heard Mr. Anup Kumar Agrawal, learned counsel appearing
for the petitioner and Mr. Ashish Kumar, A.C. to S.C. (Mines)-III, learned
counsel appearing for the State.
2. This petition has been heard through Video Conferencing in
view of the guidelines of the High Court taking into account the situation
arising due to COVID-19 pandemic. None of the parties have complained
about any technical snag of audio-video and with their consent this matter
has been heard.
3. This writ petition has been filed under Article 226 of the
Constitution of India for proper investigation and also for registration of
the FIR.
4. Mr. Anup Kumar Agrawal, learned counsel appearing for the
petitioner submits that incident of assaulting occurred on 29.4.2021 and in
spite of that the FIR has not been registered.
5. Petitioner has directly filed this petition under Article-226 of
the Constitution of India and approached this Court, which is not an
appropriate remedy. If an FIR has not been registered, the concerned
person may approach the Magistrate in terms of the provisions of the
Cr.P.C.
6. Reference in this regard has been made to the judgment of
Hon'ble Supreme Court in the case of Sakiri Vasu Versus State of U.P. &
Ors., reported in (2008) 2 SCC 409, wherein the Hon'ble Supreme Court
in paragraphs-10, 11, 27 and 28 has held as follows:-
"10. It has been held by this Court in CBI v. Rajesh Gandhi
(vide para 8) that no one can insist that an offence be
investigated by a particular agency. We fully agree with the view
in the aforesaid decision. An aggrieved person can only claim
that the offence he alleges be investigated properly, but he has
no right to claim that it be investigated by any particular agency
of his choice.
11. In this connection we would like to state that if a person
has a grievance that the police station is not registering his
FIR under Section 154 CrPC, then he can approach the
Superintendent of Police under Section 154(3) CrPC by an
application in writing. Even if that does not yield any
satisfactory result in the sense that either the FIR is still not
registered, or that even after registering it no proper
investigation is held, it is open to the aggrieved person to
file an application under Section 156(3) CrPC before the
learned Magistrate concerned. If such an application under
Section 156(3) is filed before the Magistrate, the
Magistrate can direct the FIR to be registered and also can
direct a proper investigation to be made, in a case where,
according to the aggrieved person, no proper investigation
was made. The Magistrate can also under the same
provision monitor the investigation to ensure a proper
investigation.
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."
7. Further the Hon'ble Supreme Court in the case of Sudhir
Bhaskarrao Tambe Versus Hemant Yashwant Dhage & Ors., reported in
(2016) 6 SCC 277 has followed the judgment passed in the case of Sakiri
Vasu's case (supra). Paragraph-2 of the said judgment reads as follows:-
"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."
8. The caution has been put at paragraph-3, which reads as
under:-
"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."
9. This judgment has recently been followed in the case of M.
Subramaniam & Anr. Versus S. Janaki & Anr. reported in (2020) SCC
Online SC 341.
10. In the light of the judgments of the Hon'ble Supreme Court,
the issue is well settled now, if the police is not registering the case,
remedy is left with the complainant / petitioner to approach the concerned
Magistrate in terms of the Cr.P.C.
11. In view of the fact that an alternative remedy is available to
the petitioner, this writ petition is dismissed with the liberty to the
petitioner to approach before the concerned Magistrate by invoking
statutory remedy available under the Cr.P.C.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
