Uttarakhand High Court
Meena Devi vs State Of Uttarakhand & Others on 22 March, 2023
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Writ Petition No.2208 of 2022
Meena Devi ........Petitioner
Versus
State of Uttarakhand & others ........Respondents
Present:-
Ms. Swati Sharma and Mr. Sharang Dhulia, Advocates for the
petitioner.
Mr. V.S. Rathore, A.G.A. for the State.
Mr. Arvind Vashistha, Senior Advocate assisted by Mr.
Hemant Mehra, Advocate for respondent nos.3 & 7.
Mr. Lalit Sharma, Advocate for the CBI/respondent no.8.
Hon'ble Ravindra Maithani, J. (Oral)
By means of this instant petition, petitioner
seeks the following reliefs:-
"(i) Issue a writ, order in the nature of Mandamus
directing C.B.I. (Central Bureau of Investigation) to
register an F.I.R. and investigate the matter.
(ii) Issue a writ in the nature of Mandamus
directing respondent nos. 3 to 7 not to create any
third party interest in the land situated in Khasra
No.799 of Khasara No.827/828 as stated in the
alleged report of Patwari (Annexure No.12) Ranipur
Haridwar known as Sharda Dham till the disposal
of the case."
2. According to the FIR, the petitioner and others
had executed a sale deed in favour of the informant on
23.09.2015 with regard to a property for
Rs.13,75,00,000/-. Rs.7,79,00,000/- had already been
paid, but the FIR records that the petitioner and others
raised some disputes. Some settlement was done, but
even thereafter, the petitioner and co-accused did not
permit the informant to take possession and when he
reached at the property, he was threatened with lathi,
danda and armed weapons. They opened fire also and
threatened the informant to his life.
3. Heard learned counsel for the parties and
perused the file.
4. This petition was heard on 05.12.2022. Notices
were issued. Respondents were required to file counter
affidavit. On 15.03.2023, when the matter was taken up,
the Court posed the following question:-
"The Court wanted to know, as to how the order for
lodging of an FIR may be passed in a writ petition
particularly in view of provisions of Sections 154
and 156 of the Code of Criminal Procedure, 1973."
5. Today, learned Senior Counsel appearing for
the private respondents would submit that no counter
affidavit may be filed and the matter may be decided on
the basis of oral objections as are being placed. State has
also not filed any counter affidavit.
6. Learned counsel for the petitioner would
submit that petitioner has been harassed by the private
respondents. They have demolished a part of the property
of the petitioner, which was never sold to them. Earlier, it
is argued that in the year 2015, property was sold to the
private respondents, but the cheques, which were given in
consideration, were dishonoured. Therefore, a civil suit for
cancellation of sale deeds was filed by the petitioner,
which is still pending. Complaints under Section 138 of
the Negotiable Instruments Act, 1881 (the Act) were also
filed. They are also pending. Subsequently, in the year
2022, a compromise was entered into, but it is argued
that the private respondents forcibly without any
authority demolished the part of the property of the
petitioner, which was never sold to them; the petitioner
immediately moved the Civil Court, informing violation of
the temporary injunction order, in which notices were
issued; the petitioner also approached the Police
concerned to take action, no action was taken; the
petitioner moved various authorities, but the FIR could
not be lodged. Therefore, it is argued that it is a case, in
which Court should make an interference.
7. On the other hand, learned Senior Counsel
appearing for the private respondents would submit that
by virtue of instant petition, the petitioner is not only
requiring a Court to direct for lodging of FIR, but has also
indicated the agency by which the investigation has to be
carried out. It is argued that the FIR may be lodged under
Section 154 of the Code of Criminal Procedure, 1973 (the
Code). If aggrieved, the remedy under Section 156 (3) of
the Code may be availed. In support of his contention, he
would cite the principle of law, as laid down in the case of
Sakiri Vasu vs. State of Uttar Pradesh & others, (2008) 2
SCC 409. In the case of Sakiri Vasu (Supra), the Hon'ble
Supreme Court has discussed the scope of dealing with
petitions requiring registration of FIR. In para 27 of the
judgment, the Hon'ble Supreme Court has observed as
hereunder:-
"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 CrPC 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 police officers concerned, and if
that is of no avail, under Section 156(3) CrPC before
the Magistrate or by filing a criminal complaint under
Section 200 CrPC and not by filing a writ petition or a
petition under Section 482 CrPC."
8. During the course of hearing, it is also being
argued that although the petitioner had filed an
application under Section 156(3) of the Code, but after
filing of instant petition, that application under Section
156 (3) of the Code was not pressed by the petitioner.
9. Parties are in litigation at various stages in
various forms. There are civil suits pending. There are
criminal complaints which are also pending. Petitioner
claims that a temporary injunction has been granted in
her favour by the court of Competent Jurisdiction.
10. It is also being argued that Police Authorities
did not lodge the FIR. If under Section 154 of the Code,
the FIR has not lodged, the aggrieved person may inform
the Senior Officer of the Police, under Section 154(3) of
the Code. Even if action is not taken, the Magistrate of
Competent Jurisdiction may be approached to seeking
investigation in the matter. There are other provisions
also for filing of complaints etc., but petitions seeking
such relief from this Court, may not be entertained.
11. The second prayer is with regard to restraining
the private respondents from alienating property. This is
basically a kind of perpetual injunction, which is being
sought by means of instant petition. The decision on this
issue requires statements from both the parties; may the
issue relating to survey be involved; inviting objections,
deciding objections; examining factual issues are all
involved in that process. But that is not the scope of a
writ petition under Article 226 of the Constitution of
India.
12. In view of what is stated hereinabove, this
Court is of the view that the reliefs as sought for, the writ
petition cannot be entertained. According, the writ
petition deserves to be dismissed.
13. The writ petition is dismissed.
(Ravindra Maithani, J.)
22.03.2023
AK
