Devendra Parihar vs The State Of Madhya Pradesh
2022 Latest Caselaw 12633 MP

Citation : 2022 Latest Caselaw 12633 MP
Judgement Date : 21 September, 2022

Madhya Pradesh High Court

Devendra Parihar vs The State Of Madhya Pradesh on 21 September, 2022

Author: Gurpal Singh Ahluwalia

                            1

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
             ON THE 21st OF SEPTEMBER, 2022

             WRIT PETITION No. 20832 of 2022

      BETWEEN:-

      DEVENDRA      PARIHAR,   S/O
      PAHALWAN    SINGH   PARIHAR,
      AGE : 30 YEARS, R/O VILLAGE
      MAHAL MOHALLA, SHADORA,
      DISTRICT         ASHOKNAGAR
      (MADHYA PRADESH)
                                          .....PETITIONER

      (BY SHRI SHIVAM SAVITA- ADVOCATE)

      AND

1.    STATE OF MADHYA PRADESH
      THROUGH      ITS  PRINCIPAL
      SECRETARY DEPARTMENT OF
      HOME,    VALLABH   BHAWAN,
      BHOPAL (MADHYA PRADESH)
2.    DIRECTOR GENERAL OF POLICE,
      BHOPAL,    BHOPAL  (MADHYA
      PRADESH)
3.    INSPECTOR GENERAL OF POLICE,
      DIVISION GWALIOR, GWALIOR
      (MADHYA PRADESH)
4.    SUPERINTENDENT OF POLICE
      ASHOKNAGAR,        DISTRICT
      ASHOKNAGAR         (MADHYA
      PRADESH)
5.    SUB    DIVISIONAL   OFFICER
                                            2

       (POLICE),    SUB     DIVISION
       ASHOKNAGAR,          DISTRICT
       ASHOKNAGAR           (MADHYA
       PRADESH)
6.     STATION HOUSE OFFICER (S.H.O.),
       POLICE    STATION   KACHNAR,
       DISTRICT         ASHOKNAGAR
       (MADHYA PRADESH)

                                                           ........RESPONDENTS

        (SHRI SANJAY KUMAR SHARMA - GOVERNMENT
ADVOCATE FOR STATE)
----------------------------------------------------------------------------------------

       This petition coming on for hearing this day, the Court passed the

following:

                                      ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following reliefs :

i. That, the respondent authorities may kindly be directed to properly conduct the investigation of Crime No.191/2022 of Police Station Kachnar, District Ashoknagar, M.P. by considering all the medical aspect and scientific aspects of the present case.

ii. That, the respondent authorities may kindly be directed to enhance the charges under section 307 of IPC, in the investigation of Crime No.191/2022 of Police Station Kachnar, District Ashoknagar, M.P. by considering all the medical aspect and scientific aspects of the present case. iii. That, the respondent no. 02 may kindly be directed to file the affidavit in respect of fair measure taken in conduct of investigation of crime no. 191/2022 of Police Station Kachnar, District Ashoknagar, M.P. by considering all the medical aspect and scientific aspects of the present case. iv. That, the respondent be directed to speedily complete

the investigation and file the report under the relevant provision before the competent Court.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case same may kindly be granted to the petitioner.

It is submitted by counsel for petitioner that he has not prayed for arrest of accused but one and a half months have passed but nothing has been done which clearly indicates that proper investigation is not being done and, therefore, he has approached this Court for fair investigation.

Per contra, the petition is vehemently opposed by counsel for State. It is submitted that the petitioner has an efficacious remedy under Section 156(3) of Cr.P.C and he can approach the jurisdictional Magistrate for a direction of fair and free investigation.

Heard learned counsel for the parties. The Supreme Court in the case of Sakiri Vasu Vs. State of U.P. reported in (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 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.

The Supreme Court in the case of Sudhir Bhaskarrao Tambe v.

Hemant Yashwant Dhage, reported in (2016) 6 SCC 277 has held as under :

2. This Court has held in Sakiri Vasu v. State of U.P. [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 : AIR 2008 SC 907] , 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 [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 : AIR 2008 SC 907] 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 [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 : AIR 2008 SC 907] , the impugned judgment [Hemant Yashwant Dhage v. S.T. Mohite, 2009

SCC OnLine Bom 2251] 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. Thus, the petitioner has an efficacious remedy of approaching the judicial Magistrate by filing an application under Section 156(3) of Cr.P.C for a direction to the Investigating Officer to investigate the matter in a free and fair manner.