Madhya Pradesh High Court
Suresh Kumar Chabra vs The State Of Madhya Pradesh on 15 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 15th OF JANUARY, 2025
WRIT APPEAL No. 2793 of 2024
SURESH KUMAR CHABRA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri S.R. Tamrakar, learned senior counsel with Shri Ghanshyam Barman, learned
counsel for the appellant.
Shri S.S. Chouhan, learned Government Advocate for the respondent/State.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
Heard on the question of admission.
2. In this writ appeal under Section 2(1) of the Madhya Pradesh
Uchchya Nyayalaya [Khand Nyaypeeth Ko Appeal] Adhiniyam, 2005,
challenge has been made to the order dated 12.11.2024 passed in W.P.
No.33862/2024 whereby the writ petition was disposed of with a liberty to
the appellant to prosecute the complaints before the police authorities or if
still aggrieved to take recourse to Section 156(3) of the Code of Criminal
Procedure (Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita).
3. The brief facts of the case are that the appellant had filed the writ
petition praying for the following reliefs:
(i) To direct the respondent No.02 to 04 to take necessary action against the
respondent No.05 and handover the vacant possession of the shop No.03 to the
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petitioner.
(ii) To direct the respondents No. 02 to 04 to decide the complaints so pending
before the respondent authorities made by the petitioner.
(iii) Issue any other writs, order/orders and direction/directions which this Hon'ble
Court deems just and proper in the facts and circumstances of the case.
(iv) Award the cost of the petition to the petitioner.
4. It is the case of the appellant that he is the brother of respondent
No.6 and both the brothers were part of family firm namely M/s Chhabra
Machineries & Auto Stores Damoh. It is the case of the appellant that a lease
deed in respect of shop No.3 was executed vide (Annexure P-1) in the name
of respondent No.6 being real brother of the appellant and member of the
family and representing the family firm.
5. It is the case of the appellant that thereafter there was a family
partition vide (Annexure P-2) and the family business came to the share of
the present appellant. Thereafter despite the business in the said shop let out
to the firm by respondent No.3 in terms of the lease deed (Annexure P-1) not
falling in the share of respondent No.6, the respondent No.6 has been trying
to interfere in the possession of the appellant since a long time. It is
contended that the key of the shop was handed over to respondent No.5 i.e.,
Town Inspector, Police Station Kotwali, District Damoh looking to the
long standing dispute between the family members but the respondent No.1
has unauthorizedly handed over key of the shop to the respondent No.6
and handed over possession of the shop to respondent No.6. It is further
stated that FIR should be registered against the respondent No.6 for tress-
passing into the shop No.3.
6. Learned counsel for the appellant contended that inspite of the
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complaints, the authorities is not registering the FIR. Even the appellant had
approached the Superintendent of Police but to no avail which violates the
provisions of Section 173 Sub Section 4 of the BNSS. Therefore, learned
Single Judge ought to have allowed the writ petition.
7 . Per contra, learned counsel appearing for the respondent/State
contended that the relief prayed in the writ petition cannot be granted to the
appellant in view of the fact that the appellant has an alternative efficacious
remedy of filing the complaint before the Magistrate under Section 156(3) of
the Cr.P.C. Even Section 173(4) of the BNSS provides that in case there is
refusal on the part of an officer in-charge of a police station to record the
information referred to in sub-section (1), may send the substance of such
information, in writing and by post, to the Superintendent of Police
concerned who, if satisfied, shall either investigate the case himself or direct
an investigation to be made by the police officer subordinate to him. If the
Superintendent of Police fails to comply with the aforesaid provisions, the
remedy is available for aggrieved person to make an application to the
Magistrate. In view of the aforesaid, both the provisions of Section 156(3) of
the Cr.P.C. as well as Section 173(4) of the BNSS are pari materia . It is well
settled that no directions can be issued by this Court to lodge FIR or to
conduct investigation without affording the opportunity of alternative
remedy. It is further submitted that the disputed questions of fact cannot be
looked into by this Court in exercising the power under Section 226 of the
Constitution of India. As such, learned Single Judge has not committed any
error in relegating the appellant to avail alternative remedy as provided in
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law.
8. Heard learned counsel for the parties and perused the record.
9 . 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 above mentioned."
The words `as above mentioned obviously refer to Section 156 (1),
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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
Section156(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
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 above mentioned 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 ensuringa 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
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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 482Cr.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 and154(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)
10. 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
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investigating officer, so that a proper investigation is done in the
matter. We have said this in Sakiri Vasucase 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 Section156(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
a s i d e . 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
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)
11. In congruence with the aforesaid well settled position, a Co-
ordinate 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).
12. In view of the legal conspectus on the point in issue, as cited
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above, since the appellant has rushed to this Court without availing the
alternative efficacious remedy as envisaged under the Cr.P.C., the single
Bench has rightly dismissed the writ petition.
13. 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.
14. With the aforesaid liberty, this appeal stands dismissed.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
ak
