Madhya Pradesh High Court
Narayan Khatarkar vs The State Of Madhya Pradesh on 2 December, 2022
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 2 nd OF DECEMBER, 2022
WRIT PETITION No. 27350 of 2022
BETWEEN:-
NARAYAN KHATARKAR S/O SHRI CHANDUJI
KHATARKAR, AGED ABOUT 55 YEARS, OCCUPATION:
FARMER / LABOUR CASTE MAHAR GUJARMAL TEHSIL
ATHNER DISTRICT BETUL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SURDEEP KHAMPARIYA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY HOME DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. THE DIRECTOR GENERAL OF POLICE POLICE
HEADQUARTERS BHOPAL (MADHYA PRADESH)
3. THE SUPERINTENDANT OF POLICE BHOPAL
DISTRICT BHOPAL (MADHYA PRADESH)
4. THE STATION HOUSE OFFICER POLICE STATION
MULTAI DISTRICT BETUL (MADHYA PRADESH)
5. SMT. BABITA W/O ASHOK JHARBADE R/O
SAIKHEDA POLICE STATION AND TEHSIL
MULTAI DISTRICT BETUL (MADHYA PRADESH)
6. KRISHNA S/O CHANDU KHATARKAR R/O
MANDIDEEP DISTRICT RAISEN (MADHYA
PRADESH)
7. GAJANAND S/O HARIRAM JITPURE R/O
GUNKHED TEHSIL ATHNER DISTRICT BETUL
(MADHYA PRADESH)
8. MAHADEV S/O GODHAN PATIL R/O GUNKHED
TEHSIL ATHNER DISTRICT BETUL (MADHYA
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2
PRADESH)
9. HARIRAM JITPURE S/O NOT KNOWN R/O
GUNKHED TEHSIL ATHNER DISTRICT BETUL
(MADHYA PRADESH)
10. MANIKRAO S/O SHESHRAO KANATHE R/O
GUNKHED TEHSIL ATHNER DISTRICT BETUL
(MADHYA PRADESH)
11. ANJANI W/O CHANDU KHATARKAR R/O
SAIKHEDA POLICE STATION AND TEHSIL
MULTAI DISTRICT BETUL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DHEERAJ TIWARI - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition, under Article 226 of the Constitution of India has
been preferred by the petitioner seeking the following reliefs:-
"(A) It is, therefore, prayed that this Hon'ble Court may kindly
be pleased to direct the Respondents to register the FIR against the
Respondent No.5-11 a forthwith proceed against them in accordance
with law and conduct the fair and proper enquiry from the
independent agency.
(B) It is, therefore, prayed that this Hon'ble Court may kindly
be pleased to direct the Respondents to decide the representation of
the petitioner and take the action immediately.
(C) It is, therefore, prayed that this Hon'ble Court may kindly
be pleased to direct the Respondents to arrest the accused/
responsible respondent No.5-11 as soon as possible.
(D) Any other relief as deemed fit and proper in the
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circumstances of this case, along with the cost of this writ petition be
also awarded."
2. It is mentioned in the petition that the petitioner is aggrieved by
inaction of the respondents No.1 to 4 in not registering the FIR against the
respondent Nos.5 to 11. In this regard, petitioner has preferred representations
for registering the FIR against the respondent Nos.5 to 11; but, no action
whatsoever has been taken thereupon. As such, the instant petition has been
filed.
3. Per contra learned Panel Lawyer 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.
4. Heard the learned counsel for the parties.
5. 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 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
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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
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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, W.P. No.5676/2016 5 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 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 very briefly 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
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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).
6. 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),
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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
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
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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).
7. 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. and others (2017 (1) MPLJ (Cri) 338)).
8. 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.
9. 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.
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(S. A. DHARMADHIKARI)
JUDGE
TG /-
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