Dismissed

Smt. Raeesa Ansari v. State of Chhattisgarh

Chhattisgarh HC6 Feb 2020WPCR/81/2020

Case brief

AI extract

What is this about?

The Single Judge held that the petitioner failed to avail alternative statutory remedies (Sections 154(3), 156(3), 200 CrPC) before filing the writ. Since the police concluded no cognizable offence existed, the writ for FIR registration is dismissed in limine. Petitioner is directed to approach the Magistrate under Sections 156(3) and 200 CrPC.

What did the court decide?

Writ petition dismissed in limine; liberty granted to approach Magistrate under Sections 156(3) and 200 CrPC.

Smt. Raeesa Ansari Vs State of… — Civil Procedure and Limitation | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPCR No. 81 of 2020

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Smt. Raeesa Ansari W/o Late Shri Idrish Ansari,
Aged about 34 years, Residing at House No. 17/385
Shrivas Mohalla, Masanganj Bilaspur, District
Bilaspur, Chhattisgarh.

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--- Petitioner

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 Versus

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1. State Of Chhattisgarh Through The Director General of Police, Police Head Quarter, Raipur, District Raipur, Chhattisgarh.

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2. Inspector General of Police, Bilaspur, District Bilaspur, Chhattisgarh.

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3. Superintendent Of Police Bilaspur, District Bilaspur Chhattisgarh.

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4. Police Station Officer, Women Police Station Bilaspur, District Bilaspur, Chhattisgarh.

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5. Police Station House Officer Civil Lines, Bilaspur District Bilaspur, Chhattisgarh.

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6. Smt. Basiran Ansari, W/o Late Shri Mohammad Hamid Ansari, Aged about 65 years, (Mother-in-law)

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7. Smt. Ishrat Khan, W/o Rashid Khan, Aged about 40 years, (sister-in-law)

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8. Smt. Nikahat Anjum, W/o Shahzada Ali, Aged about 36 years, (sister-in-law) Respondents No. 6 to 8 are R/o House no. 17/385, Shrivas Mohalla, Opposite Nema X-Ray Center, Mahila Thana Road, Masanganj Bilaspur District Bilaspur, Chhattisgarh.

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 --- Respondents

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For Petitioner:-Mr. Ashutosh Shukla, Advocate
For State:-Mr. Akash Pandey, Panel Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

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06/02/2020

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1.This writ petition has been filed by the
petitioner herein seeking direction to the
concerned police authority to register FIR
against respondents No. 6 to 8 stating that
despite of several complaints having been made to
police authorities which discloses commission of
cognizable offence, yet F.I.R. has not been
registered against respondents No. 6 to 8.

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2.Mr. Ashutosh Shukla, learned counsel for the
petitioner would submit that respondents No. 6 to
8 have committed cognizable offence against the
petitioner and for that she made a complaint on
07/01/2019 to the Station House Officer, Bilaspur

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andseveralothercomplaintstothe

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Superintendent of Police, Bilaspur and to the
Women Police Station for registration of FIR
against respondents No. 6 to 8 which has not been
done, therefore, appropriate direction be issued
to the concerned police authority to register FIR
against respondents No. 6 to 8 in light of the

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decision rendered by this Court in the matter of
Bhushan Singh Rathiya v. State of Chhattisgarh

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and Ors.1 decided on 26/08/2016.

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3. I have heard learned counsel for the petitioner at length.

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4.At this stage, it is appropriate to notice the
judgment rendered by the Supreme Court in Lalita
Kumari v. Government of U.P.2 their Lordships have
held that registration of FIR is the mandatory
duty of the police and held as under :-

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“ 120. In view of the aforesaid discussion, we hold: 120.1 Registration of FIR is mandatory under section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

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120.2 If the information received does
not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only
to ascertain whether cognizable offence is
disclosed or not.

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120.3 If the inquiry discloses the
commission of a cognizable offence, the FIR
must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such
closure must be supplied to the first
informant forthwith and not later than one
week. It must disclose reasons in brief
for closing the complaint and not
proceeding further.

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120.4 The police officer cannot avoid
his duty of registering offence if

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1 Writ Petition (Cr.) No. 9 of 2016

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2 (2014) 2 SCC 1

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cognizable offence is disclosed. Action
must be taken against erring officers who
do not register the FIR if information
received by him discloses a cognizable
offence.

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120.5 The scope of preliminary inquiry
is not to verify the veracity or otherwise
of the information received but only to
ascertain whether the information reveals
any cognizable offence.

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120.6 As to what type and in which
cases preliminary inquiry is to be
conducted will depend on the facts and
circumstances of each case. The category
of cases in which preliminary inquiry may
be made are as under:

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a) Matrimonial disputes/family disputes

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b) Commercial offences

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c) Medical negligence cases

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d) Corruption cases

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e) Cases where there is abnormal
delay/laches in initiating criminal
prosecution, for example, over 3 months
delay in reporting the matter without
satisfactorily explaining the reasons for
delay.

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The aforesaid are only illustrations
and not exhaustive of all conditions
which may warrant preliminary inquiry.”

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5.However, in the matter of Aleque Padamsee and

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others v. Union of India and others3, the question

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was, whether it is within the powers of the Court
to issue a writ directing the police to register
an FIR? In that case, Their Lordships of the
Supreme Court have held that in case the police
fails to register an FIR, the modalities set out

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3(2007) 6 SCC 171

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under Section 190 read with Section 200 of the
CrPC are to be adopted and observed.

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6.Likewise, in the matter of Sakiri Vasu v. State
of U.P.4, the Supreme Court has categorically held
that if a person is aggrieved that his FIR has
not been registered by the police or having been
registered, proper investigation is not done, the
remedy available to the aggrieved person lies to
approach the Judicial Magistrate under Section
156(3) of the CrPC, and observed as under :-

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“25.We have elaborated on the above matter
because we often find that when someone
has a grievance that his FIR has not been
registered at the police station and/ or a
proper investigation is not being done by
the police, he rushes to the High Court to
file a writ petition or a petition under
section 482, Criminal Procedure Code. We
are of the opinion that the High Court
should not encourage this practice and
should ordinarily refuse to interfere in
such matters, and relegate the petitioner
to his alternating remedy, firstly under
section 154(3) and section 36, Criminal
Procedure Code before the concerned police
officers, and if that is of no avail, by
approaching the concerned Magistrate under
section 156(3).

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26.If a person has a grievance that his
FIR has not been registered by the police
station his first remedy is to approach
the Superintendent of Police under section
154(3), Criminal Procedure Code or other
police officer referred to in section 36,
Criminal Procedure Code. If despite
approaching the Superintendent of Police
or the officer referred to in section 36
his grievance still persists, then he can
approach a Magistrate under section

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4(2008) 2 SCC 409

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156(3), Criminal Procedure Code instead of
rushing to the High Court by way of a writ
petition or a petition under section 482,
Criminal Procedure Code. Moreover he has a
further remedy of filing a criminal
complaint under section 200, Criminal
Procedure Code. Why then should writ
petitions or section 482petitions be
entertained when there are so many
alternative remedies?”

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7.The principle of law laid down in Sakiri Vasu
(supra) was followed with approval by Their
Lordships of the Supreme Court in the matter of
Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage

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and others5 in which it was held as under : -

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“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.

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5(2016) 6 SCC 277

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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. ”

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8.This Court considering the decisions rendered in

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Sakiri Vasu(supra) and Aleque Padamsee(supra),
in W.P.(Cr.)No.136/2017 (R.K. Pandey v. State of
Chhattisgarh and others), decided on 19-4-2017,
held as under :-

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“(8) Thus, the petitioner has the efficacious statutory alternative remedy of approaching first before the Superintendent of Police under Section 154(3) of the CrPC or other officer mentioned in Section 36 of the CrPC. Despite approaching the Superintendent of Police or other officer as mentioned in Section 36 of the CrPC, the petitioner is entitled to make an application to the Magistrate under Section 156(3) of the CrPC and also has a further remedy of filing complaint under Section 200 of the CrPC. The Supreme Court in like situation has deprecated the practice of directly entertaining writ petition or petition under Section 482 of the CrPC by this Court and emphasized that the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation in Sakiri Vasu (supra), and followed by this Court also in above-stated case.

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(9)In view of the above, the petitioner has not properly approached the above stated forums as rendered in Sakiri Vasu (supra). I do not find any case of issuance of a writ to the police authorities to register FIR on the report made by

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the petitioner and the writ petition is liable to be dismissed and it is accordingly dismissed in limine but without imposition of cost(s). However, the petitioner shall be at liberty to avail other appropriate remedies, in accordance with law for registration of FIR is concerned as indicated by the Supreme Court in Sakiri Vasu (supra) and also at liberty to bring to the notice of said authorities the decision rendered by the Supreme Court in Lalita Kumari (supra).”

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9. The order of this Court in R.K. Pandey (supra)

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was assailed before this Court in W.A.No.231/2017
(R.K. Pandey v. State of Chhattisgarh and others)

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in which the Division Bench of this Court
considered the matter and dismissed the appeal by
observing as under :-

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“5. While Lalita Kumari v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1 is authority for the position that the police officers have statutory duty to act upon the complaint in the manner delineated therein, the fact of the matter remains that the learned Single Judge, has through the impugned order, only refused to entertain the writ petition noticing that the Petitioner has adequate efficacious alternative statutory remedy in view of Sections 156(3) and 200 of the CrPC, for which, the preposition that there can be no dispute for the precedents in Sakiri Basu (supra) and Aleque Padamsee (supra) . Hence, we do not find our way to hold that the exercise of discretionary jurisdiction by the learned Single Judge can be faulted to any ground to place this intra-Court appeal to the Division Bench in proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006. Hence, this appeal fails.”

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10.Apart from this, a Division Bench of the M.P.

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High Court in the matter of Shweta Bhadoria v.

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State of M.P. and others6 has held that if FIR is
not registered on the basis of complaint which
discloses a cognizable offence, remedy available
to the aggrieved person is to take recourse to
the provisions under Sections 154(3), 156(3), 190
and 200 of the CrPC, and observed as under: -

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“6.Before parting the conclusion arrived
at based on the above discussion and
analysis is delineated below for ready
reference and convenience :-

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(1) Writ of mandamus to compel the police to
perform its statutory duty u/s 154 Cr.P.C.
can be denied to the informant/victim for
non-availing of alternative remedy u/Ss.
154(3), 156 (3), 190 and 200 Cr.P.C., unless
the four exceptions enumerated in decision
of Apex Court in the case of Whirlpool
Corporation v. Registrar of Trade Marks,
Mumbai and Ors., (1998) 8 SCC 1, come to
rescue of the informant/victim.

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(2) The verdict of Apex Court in the case of
Lalita Kumari v. Government of U.P. & Ors.
reported in (2014) 2 SCC 1 does not pertain
to issue of entitlement to writ of mandamus
for compelling the police to perform
statutory duty under Section 154 Cr.P.C.
without availing alternative remedy under
Sections 154(3), 156(3), 190 and 200 Cr.P.C.

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(3)Subjectto(1)suprathe
informant/victim after furnishing first
information regarding cognizable offence
does not become functus officio for seeking
writ of mandamus for compelling the police
authorities to perform their statutory duty
under Section 154 Cr.P.C. in case the FIR is
not lodged.

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(4) Subject to (1) supra the proposed
accused against whom the first information
of commission of cognizable offence is made,
is not a necessary party to be impleaded in

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6 2017 (I) MPJR 247

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a petition under Article 226 of the
Constitution of India seeking issuance of
writ of mandamus to compel the police to
perform their statutory duty under Section
154 Cr.P.C.”

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11.The principle of law laid down in Shweta Bhadoria
(supra) was subsequently followed by another
Division Bench of that Court in the matter of
Dharmendra Sonkar v. State of M.P. and others7 and
in that case, the Division Bench speaking through
Hemant Gupta, CJ, (as then His Lordship was)
clearly held that in Lalita Kumari(supra), there
is no mandate that writ Court under Article 226
of the Constitution of India, should issue a
direction for registration of FIR and observed as

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under: -

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“7. The Constitution Bench in Lalita Kumari (supra) was considering the question as to whether registration of an FIR is mandatory, in case it discloses a cognizable offence. If the information does not disclose a cognizable offence, it mandates to conduct a preliminary enquiry. But, there is no mandate in the aforesaid judgment that this Court under Article 226 of the Constitution of India should issue a direction for registration of an FIR. Such a question has been specifically answered in Aleque Padamsee and others (supra), Sakiri Vasu (supra) and Sudhir Bhaskar Rao Tambe (supra).”

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12.Reverting to the facts of the present case in
light of the principle of law laid in the above-

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stated judgments, it appears from the perusal of
7 2018(1) M.P.L.J. 716

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the record that upon inquiry, Police has clearly
come to the conclusion on 22/12/2019 that no
cognizable offence is said to have been committed
by respondents No. 6 to 8 and they declined to
register FIR against them and considering the
nature of the dispute, this writ petition cannot
be entertained directing the Station House
Officer of the concerned police station to
register F.I.R against respondents No. 6 to 8.
However, petitioner is at liberty to approach the
jurisdictional criminal Court under Section
156(3) and Section 200 of the Cr.P.C in
accordance with law.

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13.With the aforesaid liberty reserved in favour of
the petitioner, this writ petition stands
disposed of. No cost(s).

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Smt. Raeesa Ansari v. State of Chhattisgarh

Case brief

What is this about?

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Smt. Raeesa Ansari v. State of Chhattisgarh

Case brief

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