Hariom Sharma vs The State Of Madhya Pradesh
2021 Latest Caselaw 2991 MP

            HIGH COURT OF MADHYA PRADESH,
                  BENCH AT GWALIOR
                          W.P. No.11460/2021
     (Hariom Sharma Vs. The State of Madhya Pradesh & Ors.)
                                      (1)

Gwalior, dated : 06.07.2021

       Heard through Video Conferencing.

       Shri Mohit Bhadoriya, Advocate for the petitioner.

       Shri Abhishek Mishra, Government Advocate for the

respondent/State.

I.A. No.7534/2021, an application for urgent hearing is

disposed of.

Heard on the question of admission and interim relief.

The present petition, under Article 226 of the Constitution of

India has been preferred by the petitioner seeking the following

reliefs:-

";kfpdkdrkZ izkFkZuk djrk gS fd ;kfpdkdrkZ dh ;kfpdk Lohdkj dh fd;k tkdj izfr;kfpdkdrkZx.k dz-5 o 6 dks funsZf'kr fd;k tkos fd os lacaf/kr cPps ds bZykt dk iz.kZ fjdksZM ysdj ekuuh; U;k;ky; esa is'k djs rFkk izfr;kfpdkdrkZ dzekad 5 o 6 fo:) dBksj ls dBksj dk;Zokgh dj ;kfpdkdrkZ o mlds cPps dks U;k; fnyk;k tkos rFkk izfr;kfpdkdrkZx.k dzekad 1 yxk;r 4 ds dk;Zokgh uk djus ij izfr;kfpdkdrkZ ds fo:) ekuuh; U;k;ky; }kjk mfpd dk;Zokgh djus dk funsZf'kr fn;s tkus dk vkns'k nsus dh d`ik djs rFkk ;kfpdkdrkZ dks lqj{kk iznku djsA vU; lgk;rk tks ekuuh; U;k;ky; mfpr le>s ;kfpdkdrkZx.k dks fnykbZ tkosA"

Brief facts leading to filing of this case are that on 13.06.2021,

the petitioner admitted his son aged about 2 years in J.A. Hospital,

Gwalior, where he was diagnosed with jaundice. On 14.06.2021, one

unit blood of B+ blood group was transfused to him, due to

deficiency of blood in his body. Thereafter, on 15.06.2021, the son of

the petitioner was admitted in the hospital of respondent No.5, where HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P. No.11460/2021 (Hariom Sharma Vs. The State of Madhya Pradesh & Ors.)

he was tested COVID-19 positive on which the doctors were asked

for transfusion of one unit blood and one unit plasma. On the same

day, one unit blood and one unit plasma was transfused to the

petitioner's son. After the blood and plasma was transfused, suddenly

the son of the petitioner became serious and red spots were raised on

his body. Thereafter, it was found that blood of wrong blood Group

was transfused to his son by respondents No.5 and 6. On the basis of

the aforesaid, a complainant was made to the Superintendent of

Police, Gwalior and also at Police Station- Padav, District Gwalior

but no action whatsoever has been taken thereupon. As such, the

instant petition has been filed.

Per contra learned Government Advocate for the

respondents/State contends that the relief prayed in this petition

cannot be granted to the petitioner in view of the fact that petitioner

is having an alternative efficacious remedy of filing complaint before

the Magistrate under section 156(3) of the Cr.P.C. He further submits

that it is well settled that disputed questions of fact cannot be looked

into by this Court in Article 226 of the Constitution of India. As

such, the present petition is liable to dismissed at the threshold.

Heard, learned counsel for the parties.

In the case of Sakiri Vasu vs State Of U.P. And Others

((2008)2 SCC 409) has held as under:-

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 Cr.P.C., then he can HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P. No.11460/2021 (Hariom Sharma Vs. The State of Madhya Pradesh & Ors.)

approach the Superintendent of Police under Section 154(3) Cr.P.C. 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) Cr.P.C. 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.

13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585 (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.

14. Section 156 (3) states:

"Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

The words `as abovementioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P. No.11460/2021 (Hariom Sharma Vs. The State of Madhya Pradesh & Ors.)

police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is verybriefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.

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 concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. 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.

(Emphasis supplied)

Recently the Apex Court in the case of M.Subramaniam Vs. S.

Janaki (Cr.A. No.102 of 2011) decided on 20/3/2020, has held as

under:-

6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hent Dhage mant Yashwaand Others ((2016)6 SCC 277), in which it is observed.

"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 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P. No.11460/2021 (Hariom Sharma Vs. The State of Madhya Pradesh & Ors.)

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.

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, 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."

(Emphasis supplied)

In congruence with the aforesaid well settled position, a

Division Bench of this Court has taken a similar view in the case of

Shweta Bhadoriya Vs. State of M.P. & others (2017 (1) MPLJ

(Cri) 338)).

In view of the legal conspectus on the point in issue, as cited

above, since the petitioner has rushed to this Court without availing

the alternative efficacious remedy as envisaged under the Cr.P.C.,

this writ petition cannot be entertained and is, accordingly,

dismissed.

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P. No.11460/2021 (Hariom Sharma Vs. The State of Madhya Pradesh & Ors.)

So far as medical negligence against respondents No.5 and 6 is

concerned, the petitioner is free to avail alternative remedy as

available under the law. However, if the petitioner approaches the

Magistrate concerned under the provisions of the Code of Criminal

Procedure, the Magistrate concerned shall proceed in accordance

with law including the precedents enumerated hereinabove.

(S.A.Dharmadhikari) Judge Shanu Digitally signed by SHANU RAIKWAR Date: 2021.07.06 18:14:04 +05'30'