Madhya Pradesh High Court
Nitin Nandecha vs The State Of Madhya Pradesh on 5 March, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 5 th OF MARCH, 2024
WRIT APPEAL No. 1695 of 2023
BETWEEN:-
NITIN NANDECHA S/O SHRI BASANTILAL NANDECHA
OCCUPATION: BUSINESS AND SOCIAL SERVICE R/O
SHRADDHANAND MARG BADNAWAR DISTT.DHAR (MADHYA
PRADESH)
.....APPELLANT
(SHRI ABHINAV DHANODKAR, COUNSEL FOR THE APPELLANT).
AND
1. THE STATE OF MADHYA PRADESH, THROUGH THE CHIEF
SECRETARY SACHIVALAYA, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH, HOME DEPARTMENT,
THROUGH ITS PRINCIPAL SECRETARY, SACHIVALAY
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
3. DIRECTOR GENERAL OF POLICE, JAIL ROAD,
JAHANGIRABAD, BHOPAL (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE, PRAKASH NAGAR,
DISTRICT DHAR (MADHYA PRADESH)
5. STATION HOUSE OFFICER, POLICE STATION BADNAWAR,
KATHODIYA CHHOTA, BADNAWAR DISTRICT DHAR
(MADHYA PRADESH)
6. BANDHAN BANK THROUGH ITS BRANCH MANAGER
BRANCH, DHAR GROUND FLOOR, PLOT B3-B4, INDORE
ROAD DHAR (MADHYA PRADESH)
7. MR. RAJVARDHAN SINGH DATTIGAON, MINISTER,
DEPARTMENT OF INDUSTRIAL POLICY AND INVESTMENT
Signature Not Verified
PROMOTION, SACHIVALAY, VALLABH BHAWAN BHOPAL
Signed by: SREEVIDYA
Signing time: 07-03-
2024 11:22:34
2
(MADHYA PRADESH)
8. MR. SHAFIQ KHAN S/O ANIS KHAN, R/O DEEWAN BAAG
SEHORE (MADHYA PRADESH)
.....RESPONDENTS
T h i s appeal coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard on the question of admission.
T he present writ appeal has been filed under Section 2(1) of Madhya Pradesh
Uchha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by
the order dated 21.09.2023 passed in W.P.No.23315/2023, whereby the learned Single
Judge has dismissed the writ petition.
2. The petitioner had prayed for the following reliefs before the learned Single
Judge which is reproduced below:-
(i) Direct the Respondent No. 1 to Respondent No. 5 that the actions of the
Respondent No. 1 to Respondent No. 5 has to be carried out in a manner consistent
with the right to fair trail, as enshrined under Article 21 of the Constitution of India;
(ii) Direct the Respondent No. 1 to Respondent No. 5 in providing protection of life
and liberty of the Petitioner and his family members while the petitioner is undergoing
all the statutory remedies enshrined under the Code of Criminal Procedure;
(iii) Direct the Respondent No. 1 and Respondent No. 2 to assign this present case to
the designated officer not below the rank of Deputy Inspector General of Police of
Madhya Pradesh so that necessary decisions can be undertaken without any influence
of power and manipulation;
(iv) Direct the Respondent No. 1 to Respondent No. 5 to communicate the result of
preliminary inquiry or scrutiny of the Investigation Officer within a stipulated time
period so that the Petitioner can avail necessary remedies available under the relevant
provisions of the Code of Criminal Procedure;
(v) Direct the Respondent No. 1 to Respondent No. 5 to undertake the task of fair
investigation and without coming under the influence of any person or party; and
(vi) Any other directions that this Hon'ble Court deems fit in the interest of justice.
3 . The learned Single Judge has dismissed the writ petition by passing the
impugned order. The operative portion of the order is reproduced hereunder:
''6] Having considered the rival submissions, and on perusal of the documents filed by
the petitioner on record, this Court is of the considered opinion that elaborate
allegations have been levelled by the petitioner against respondent No.7, and the
dispute appears to be one of personal and commercial in nature, as alleged by the
petitioner, he has also lent Rs.20 Lakhs to the respondent no.7, and various disputed
questions of facts are also involved. This Court also does not find it to be a case where
any threat to the life and liberty of the petitioner, who is also a man of means, is
apprehended, and in such circumstances, this Court is not inclined to entertain this
petition by invoking its extra-ordinary jurisdiction under Article 226 of the
Constitution of India. Accordingly, the petition is liable to be and is hereby dismissed.
However, the petitioner shall be at liberty to take recourse of such remedies as are
available to him under the law.
7] So far as the decision relied upon by the counsel for the petitioner in the case of
Rajendra Singh Pawar (Supra) is concerned, the same relates to an economic offence,
and is distinguishable, and is of no avail to the petitioner.''
4. Learned counsel for the appellant contended that the learned Single Judge
failed to consider that the police is not acting in accordance with law. He has referred to
the Regulation 634 of the Madhya Pradesh Police Regulation Act which refers to the case
diary. Even the judgment relied upon by the learned Single Judge in W.P.No.
18878/2020 (Rajendra Singh Pawar and others vs. State of M.P. and others) has
not been considered properly. On these grounds, prayer has been made for quashment
of the order passed by the learned Single Judge.
5. Heard, learned counsel for the State and perused the record.
6 . Admittedly, appellant has filed a complaint before the concerned
Superintendent of Police and thereafter, FIR has also been registered. Even then, if the
complainant complains regarding improper enquiry, then the appellant is having
alternative remedy of filing a complaint/application before the Magistrate under section
156(3) of the Cr.P.C. as held by Apex Court in various judgments which are as follows:
7. 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 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."
T h e 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.
1 6 . 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).
1 7 . 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
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)
8. 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
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)
9. 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.
10. In view of the legal conspectus on the point in issue, as cited above, the
learned Single Judge has not committed any error in rejecting the writ petition. The
appellant has rushed to this Court without availing the alternative efficacious remedy as
envisaged under the Cr.PC. Accordingly, the writ appeal fails and is hereby dismissed.
However, if the appellant 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) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vidya
