Dismissed

Rajmani Singh v. State of Chhattisgarh

Chhattisgarh HC14 Jun 2021CRMP/489/2021

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed a petition seeking registration of an FIR. Relying on Supreme Court precedents, the court held that the petitioner must approach the Magistrate under Section 156 (3) Cr.P.C. rather than filing a writ, deeming the petition not maintainable.

What did the court decide?

Petition dismissed on the ground of non-maintainability due to availability of alternative remedies under Section 156(3) Cr.P.C.

Rajmani Singh Vs State of Chhattisgarh — Civil Procedure and Limitation | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 489 of 2021

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Rajmani Singh, W/o Vijay Pratap Singh, Aged About 40 Years, R/o Village- Amhar, Police Station- Patna, Tehsil- Baikuntpur, DistrictKorea (C.G.)

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---- Petitioner

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Versus

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State of ,Chhattisgarh through the Secretary, Department of Home, Mahanadi Bhawan, Mantralaya, Atal Nagar, Raipur, District- Raipur (C.G.)

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Superintendent of Police Korea, District-Korea (C.G.)

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Officer in Charge of P.S.- Patna, P.S.- Patna, Tehsil- Baikuntpur, District- Korea (C.G.)

---- Respondents

For Petitioner

For State

: Mr. Shobhit Koshta, Advocate.

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: Mr. Gurudev I. Sharan, Govt. Advocate.

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Hon'ble Shri Justice Narendra Kumar Vyas

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Order On Board

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14.06.2021

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The petitioner has filed this petition mainly contending that on 04.02.2021, the prospective accused namely Aman Kushwaha tried to abduct petitioner's son namely Kailash, aged about 3 years and daughter namely Jayanti, aged about 4 years, by taking them in motor-cycle. When neighbours saw the prospective accused, they objected it and in this situation, Aman Kushwaha fell down from motor-cycle, which caused injury to the children. The accused took the petitioner's children to their house and started assaulting the children. When petitioner objected the same, the prospective accused collectively used caste based abusive words and threaten the petitioner. The petitioner has filed a complaint on 01.03.2021 before Superintendent of Police Baikunthpur, District- Korea (C.G.). He

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also made a complaint on 12.03.2021 to Inspector General of Police, Range- Surguja (C.G.), but no action has been taken by the concerned police authorities.

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The petitioner has invoked Section 154 of the Cr.P.C. sending complaint to respondent No. 2 with a request to take action and prayed for registration of FIR against prospective accused, but no action has been taken on the said complaints.

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On above factual matrix, the petitioner has filed present petition and prayed for following reliefs :-

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“It is therefore, humbly prayed that the Hon'ble Court may kindly be pleased to direct the respondent No. 2 to decide the petitioner application under Section 154 (3) of Cr.P.C. within such outer limit as the Hon'ble Court may deem fit in the light of facts and circumstances of the case and also direct the respondent authorities to register the FIR against the accused person in the interest of justice.”

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From perusal of reliefs sought, it is quite vivid that the petitioner wants that on the basis of complaint, FIR should be registered against illegality committed by the prospective accuse.

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I have heard learned counsel for the parties and perused the records annexed with the petition.

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Learned counsel for the State would submit that from prayer clause, it is quite clear that the petitioner has filed the present petition for registration of FIR against prospective accused. There is remedy of filing complaint under Section 200 of the Cr.P.C. for issuing direction to the police to investigate on the complaint for registration of FIR. The petitioner has alternate remedy of filing complaint under Section 200 of the Cr.P.C. before Judicial Magistrate First Class, therefore, this petition is not maintainable before the High Court.

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From perusal of Section 156 of the Cr.P.C., it is clear that the Magistrate may order for such investigation, if police officer is not investigating the cognizable offence. The Magistrate First Class,

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who is empowered under Section 190 of the Cr.P.C. can take cognizance of offence upon receiving a complaint, upon a police report of such facts or upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Section 200 of the Cr.P.C. provides for examination of complainant.

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Since, the petitioner has remedy of filing the complaint under Section 156 (3) of the Cr.P.C. before the concerned Magistrate, the present petition is not maintainable. The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of Uttar Pradesh & others¹ , has examined the issue in paragraphs 27 and 28, which are as under:-

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“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 Section 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 2000 Cr.P.C. and not by filing a writ petition or a petition under Section Cr.P.C.

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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.”

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The judgment passed by Hon'ble the Supreme Court in Sakiri Vasu (Supra) has again come up for consideration before three judges bench in case of M. Subramaniam & another Vs. S. Janaki & another² . The Supreme Court after considering the same judgment has held at para 7 & 9 which are as under:-

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1 (2008) 2 SCC 409

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2 (2020) 16 SCC 728

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“7. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage³ , in which it is observed: (SCC p. 278, paras 2-4)

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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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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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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

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3 (2016) 6 SCC 277

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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.”

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In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18-09-2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest.”

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From analysis of the above legal provisions, it is crystal clear that this petition is not maintainable before the High Court. However, it is open to the petitioner to approach the court of Judicial Magistrate First Class having jurisdiction over the place of offence if deemed appropriate and necessary for filing of complaint and in-turn Magistrate will follow the procedure prescribed under the provisions of the Cr.P.C. It is made clear that this Court has not expressed any opinion on merits of the case whether the complaint discloses any criminal offence or not.

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Considering the facts and materials on record and in view of the law laid down by the Hon'ble Supreme Court, this Court is of the view that this petition is not maintainable.

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Consequently, the petition being devoid of any substance is

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liable to be and is hereby dismissed with liberty as aforesaid granted in favour of the petitioner.

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Sd/(Narendra Kumar Vyas) Judge

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Arun

Rajmani Singh v. State of Chhattisgarh

Case brief

What is this about?

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Rajmani Singh v. State of Chhattisgarh

Case brief

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