Kishanbihari Sharma @ Satya vs The State Of Madhya Pradesh
2021 Latest Caselaw 1441 MP

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                  HIGH COURT OF MADHYA PRADESH
                              WP.No.2016/2021
(Kishanbihari Sharma Alias Satya Vs. The State of M.P. & Others)

Gwalior, Dated : 09.04.2021

        None for the petitioner even in the second round.

        Shri R.P.Singh, learned Govt. Advocate for the State.

        Shri Prashant Singh Kaurav, learned counsel for the respondent

no.4.

The matter is heard through Video Conferencing.

The present petition under Article 226 of the Constitution of India

is being filed seeking following relief:-

"(1) ;g fd] izR;kFkhZx.k dks vknsf'kr fd;k tkos fd iqfyl Fkkuk iksjlk ftyk eqjSuk ds vijk/k dza- [email protected] dh foospuk ds fy;s ,d SIT dk xBu fd;k tkos vFkok ekeys dh fu"i{k foospuk gsrq izdj.k dks jsQj fd;k tkosA (2) ;g fd] pawfd eqjSuk iqfyl tkucw> dj ;kfpdkdrkZ rFkk mlds ifjtuksa dks >wBs ekeys esa Qalk jgh gS] blfy;s ekeys dh foospuk ftyk eqjSuk ls ckgj fdlh vU; ftys dh iqfyl ls djkbZ tkosA (3) ;g fd] izR;kFkhZx.k dks vknsf'kr fd;k tkos fd mDr vijk/k dh foospuk esa ;kfpdkdrkZ dks Hkh lquk tkos vkSj ;kfpdkdrkZ rFkk mlds lkf{k;ksa ds dFku vafdr dj foospuk esa lfEefyr fd;k tkosA (4) ;g fd] U;k;fgr esa loZFkk mfpr ,oa vko';d gSA

From the perusal of the petition, it is seen that the petition has

been filed stating that the petitioner is peace-loving citizen of the contry

and he has been falsely implicated in this case by the police authorities

and his name has been falsely roped up in the F.I.R. No.881/2020 dated

14.12.2020 registered under Section 08/20 of the NDPS Act. It is

HIGH COURT OF MADHYA PRADESH WP.No.2016/2021 (Kishanbihari Sharma Alias Satya Vs. The State of M.P. & Others)

alleged that on 14.12.2020, the petitioner was at Morena in his

relationship and his father Hariom Tiwari alias Hariom Sharma and his

younger brother Brajbihari alias Krishana Sharma were at home. At that

time, the police authority has seized a Truck containing contraband

articles. Some persons were arrested on the spot and named FIR was

registered against them and also against some unknown 4-5 persons

because some persons have run away. On interrogation with the other

co-accused, they have given the names of the present petitioner and his

family members showing their involvement in commission of offence.

The police authorities came to the house of the petitioner and has given

threatening to them that they will falsely rope up their names in the

aforesaid offence or they will fulfill the illegal demands i.e. an amount

Rs.5,00,000/- from the petitioner and his family members as the demand

of non-fulfillment by them, a false case has been registered against the

present petitioner and his family members. It is alleged that he has

already approached the senior authorities time and again by filing

representations Annexures P/4 and P/5 for redressal of his grievances

and for constitution of SIT or for investigation by some other agencies

like CBI or CID. But is of no consequence. Therefore, the present

petition is being filed. It is alleged that the newspapers cuttings shows

that the father of the petitioner was arrested from the spot on the same

day, however, the investigation shows that they have been arrested after

HIGH COURT OF MADHYA PRADESH WP.No.2016/2021 (Kishanbihari Sharma Alias Satya Vs. The State of M.P. & Others)

35 hours of the incident on 15.12.2020 at 07:00 to 10:00 in the evening.

The aforesaid fact was brought to the notice of the learned trial Court at

the time of hearing of application for bail also. Under these

circumstances, prima facie, a false case appears to have been registered

against the present petitioner and his family members. He has prayed for

fresh investigation by the independent agency.

Per contra, learned counsel appearing for the State as well as the

respondents no. 4 has opposed the petition and has submitted that the

involvement of the petitioner and his family members was clearly stated

by the other co-accused who have been arrested in the matter. It is

further submitted that the investigation is over in the matter and the

charge sheet has been filed. Even from the perusal of the complaints

made by the petitioner to the senior authorities which are Annexures P/4

and P/5 does not reflect that any illegal demands were made by the

police authorities. This is clearly goes to show that this is an after

thought by the petitioner and has tried to falsely implicate. The charge

sheet has been filed on 26.02.2021. The investigation is complete in the

matter. The filing of the petition is clearly after thought of the petitioner

levelling false allegations by the police authorities. Even otherwise there

is no provision under the law that the petitioner can claim fair

investigation by the independent agency at own will. The petitioner is

having a remedy under the law. He could have filed the application

HIGH COURT OF MADHYA PRADESH WP.No.2016/2021 (Kishanbihari Sharma Alias Satya Vs. The State of M.P. & Others)

under Section 156 (3) of Cr.PC. pending investigation before the

concerning Magistrate to get the fair investigation or investigation

monitored by the Magistrate as under the Section 156 (3) of Cr.P.C. the

Magistrate is having ample powers to monitor the investigation even

otherwise other option available to the petitioner is to file a separate

complaint under Section 200 of Cr.P.C. for redressal of his grievances.

The petitioner can also file an application under Section 173 (8) of

Cr.P.C. for further investigation into the matter before the concerning

Magistrate. In such circumstances, no relief could be extended to the

petitioner. The investigation by the independent agencies like CBI or

CID is to be done in the some rare cases and exceptional circumstances

and it cannot be done as a matter of routine. They have prayed for

dismissal of the petition.

Heard the matter.

From the perusal of the FI.R., it is clearly reflected that the

involvement of the petitioner and his family members is shown by the

police authorities. Annexures P/4 and P/5 are complaints made by the

petitioner to the superior authorities does not disclose that any illegal

demand was being made by the police authorities from the petitioner or

his family members. If the petitioners are falsely implicated in the case

they were having a remedy of getting themselves bailed out by filing an

anticipatory bail before the trial Court or under Section 439 of Cr.P.C. if

HIGH COURT OF MADHYA PRADESH WP.No.2016/2021 (Kishanbihari Sharma Alias Satya Vs. The State of M.P. & Others)

they are arrested. The petitioner is further having a remedy available

under the law of getting the free and fair investigation or monitoring

done by the concerning Magistrate by filing an application under

Section 156 (3) of Cr.P.C. or by filing a private complaint if he is not

satisfied the manner in which the investigation is carried out by the

police authorities.

The Hon'ble Supreme Court in the case of Sudhir Bhaskar Rao

Tambe vs. Hemant Yashwant Dhage and Others reported in (2016) 6

SCC 277 has considered the law laid down by the Hon'ble Supreme

Court in the case of Sakri Vasu v. State of UP reported in (2008) 2

SCC 409 and has held as under:-

"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

HIGH COURT OF MADHYA PRADESH WP.No.2016/2021 (Kishanbihari Sharma Alias Satya Vs. The State of M.P. & Others)

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.

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) 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.

4. In view of the settled position in Sakiri Vasu case, 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) Cr.P.C. 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

HIGH COURT OF MADHYA PRADESH WP.No.2016/2021 (Kishanbihari Sharma Alias Satya Vs. The State of M.P. & Others)

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."

The same view has been reiterated by the Hon'ble Supreme Court

recently in the case of M. Subramaniyam and Others Vs. S. Janki

and Others in Cr.Appeal No.102/2011.

Considering the aforesaid law laid down by the Hon'ble Supreme

Court in the aforesaid cases, the remedy available to the petitioners is

before concerning Magistrate under Section 200 Cr.P.C. or u/s. 156 (3)

of Cr.P.C.

In such circumstances, no relief can be extended to the petitioner .

The petition sans merits and is hereby dismissed.

E-copy of this order be provided to the petitioner and E-copy of

this order be sent to the trial Court concerned for compliance. It is made

clear that E-copy of this order shall be treated as certified copy for

practical purposes in respect of this order.

                                                   (Vishal Mishra)
AK/-                                                   Judge
        ANAND KUMAR
        2021.04.12
        16:43:27 +05'30'