Disposed

Chandrapal Yadav v. State of Chhattisgarh

Chhattisgarh HC1 Feb 2021WPCR/67/2021

Case brief

AI extract

What is this about?

The High Court refused to issue a writ of mandamus directing the police to register an FIR against the respondent. Citing Supreme Court precedents like Sakiri Vasu, the court held that the petitioner must first exhaust alternative statutory remedies before approaching the High Court.

What did the court decide?

The writ petition was disposed of; the High Court set aside any expectation of a mandatory direction under Article 226 and granted liberty to file a complaint under Section 156(3) or 200 CrPC.

Chandrapal Yadav Vs State of Chhattisgarh — Civil Procedure and Limitation | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPCR No. 67 of 2021

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Chandrapal Yadav S/o Late Shri Mohitram Ram
Yadav, Aged about 48 years, Up-Sarpanch of Gram
Panchayat Pawani, R/o Ward No. 10 Near Bus Stand
Pawani, Thana and Tahsil Bilaigarh, Civil and
RevenueDistt.Balodabajar-Bhatapara,

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Chhattisgarh.

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 ---Petitioner

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Versus

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1. State of Chhattisgarh, Through Secretary, Home Department Mahanadi Bhawan, Capital Complex, Mantralaya, Naya Raipur, Distt. Raipur, Chhattisgarh.

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2. Superintendent of Police, Balodabajar, Distt. Balodabajar-Bhatapara.

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3. Station House Officer, Police Station Bilaigarh, Distt. Balodabajar-Bhatapara, Chhattisgarh.

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4. Sub Divisional Officer Revenue Bilaigarh, Distt. Balodabajar Bhatapara, Chhattisgarh.

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5. Mahendra Shrivas, Sarpanch of Gram Panchayat Pawani, R/o Village Pawani, Thana And Tahsil Bilaspur, Civil and Revenue Distt. BalodabajarBhatapara, Chhattisgarh.

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 --- Respondents

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For Petitioner :- Mr. Sunil Sahu, Advocate

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For State :- Mr. Sunil Otwani, Addl. A.G.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Order on Board

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01/02/2021

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1. Mr. Sunil Sahu, learned counsel for the

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petitioner, would submit that though cognizable
offence has been committed by respondent No. 5,
but no FIR has been registered against him by
the Police authorities, therefore, appropriate
direction be issued for registration of FIR
against him in light of the decision rendered by
the Supreme Court in the matter of Lalita Kumari

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v. Government of U.P.1

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2.Mr. Sunil Otwani, learned Advocate General
appearing for the State, would submit that the
remedy available to the petitioners is to file
complaint under Section 156(3) or Section 200 of
CrPC.

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3. I have heard learned counsel for the parties, considered their rival submissions and went through the records with utmost circumspection.

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4. The question for consideration would be, whether a writ of mandamus should be issued under Article 226 of the Constitution of India directing the jurisdictional police to register

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1 2014 (2) SCC 1

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an offence under Section 154(1) of the CrPC in a
petition filed stating that despite informing
the police about the commission of offence, FIR
is not being registered against the concerned
person?

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5.At this stage, it is appropriate to notice the
judgment relied upon by learned counsel for the
petitioner i.e. Lalita Kumari(supra) in which
the Supreme Court has 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:

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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
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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6.However, in the matter of Aleque Padamsee and

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others v. Union of India and others2, the

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question was, whether it is within the powers of
the Court to issue a writ directing the police

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to register an FIR? In that case, Their

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2(2007) 6 SCC 171

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Lordships of the Supreme Court have held that in
case the police fails to register an FIR, the
modalities set out under Section 190 read with
Section 200 of the CrPC are to be adopted and
observed.

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7. Likewise, in the matter of Sakiri Vasu v. State

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of U.P.3, 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

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3(2008) 2 SCC 409

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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
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 482 petitions be
entertained when there are so many
alternative remedies?”

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8.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

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Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage

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and others4 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

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4(2016) 6 SCC 277

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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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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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9.Very recently, in the matter of M. Subramanian

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and Anr. v. S. Janaki and Anr.5 decided on
20/03/2020, Their Lordships of the Supreme
Court, in a similar situation, have held that
High Court could not have directed the
registration of an FIR with a direction to the
police to investigate and file the final report.
Paragraph 5 of the report states as under :-

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“5. While it is not possible to accept the
contention of the appellants on the
question of locus standi, we are inclined
to accept the contention that the High
Court could not have directed the
registration of an FIR with a direction to
the police to investigate and file the
final report in view of the judgment of
this Court in Sakiri Vasu v. State Of Uttar

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5 2020 SCC Online SC 342

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Pradesh And Others6 in which it has been
inter alia held as under:

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“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
CrPC, then he can approach the
Superintendent of Police under Section
154(3) CrPC 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) CrPC
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.

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12. Thus in Mohd. Yousuf v. Afaq Jahan
this Court observed: (SCC p. 631, para
11)

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 “11. The clear position therefore is
that any Judicial Magistrate, before
taking cognizance of the offence, can
order investigation under Section 156(3)
of the Code. If he does so, he is not to
examine the complainant on oath because
he was not taking cognizance of any
offence therein. For the purpose of
enablingthepolicetostart
investigation it is open to the
Magistrate to direct the police to
register an FIR. There is nothing
illegal in doing so. After all
registration of an FIR involves only the
process of entering the substance of the
information relating to the commission
of the cognizable offence in a book kept

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6 2008 2 SCC 409

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by the officer in charge of the police
station as indicated in Section 154 of
the Code. Even if a Magistrate does not
say in so many words while directing
investigation under Section 156(3) of
the Code that an FIR should be
registered, it is the duty of the
officer in charge of the police station
to register the FIR regarding the
cognizable offence disclosed by the
complainant because that police officer
could take further steps contemplated in
Chapter XII of the Code only
thereafter.”

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13. The same view was taken by this Court
in Dilawar Singh v. State of Delhi (JT
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) CrPC, and if the Magistrate is
satisfied he can order a proper
investigation and take other suitable
steps and pass such order(s) as he thinks
necessaryforensuringaproper
investigation. All these powers a
Magistrate enjoys under Section 156(3)
CrPC.

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14. Section 156(3) states:

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“156. (3) Any Magistrate empowered
under Section 190 may order such an
investigation as abovementioned.”

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The words “as abovementioned” obviously
refer to Section 156(1), which
contemplates investigation by the
officer in charge of the police
station.

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15. Section 156(3) provides for a check
by the Magistrate on the police
performing its duties under Chapter XII
CrPC. In cases where the Magistrate finds
that the police has not done its duty of
investigating the case at all, or has not

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done it satisfactorily, he can issue a
direction to the police to do the
investigation properly, and can monitor
the same.

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16. 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 reopening of the investigation even
after the police submits the final
report, vide State of Bihar v. J.A.C.
Saldanha(SCC : AIR para 19).

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17. In our opinion Section 156(3) CrPC 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 FIR 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) CrPC, 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.

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18. It is well settled that when a power
is given to an authority to do something
it includes such incidental or implied
powers which would ensure the proper
doing of that thing. In other words, when
any power is expressly granted by the
statute, there is impliedly included in
the grant, even without special mention,
every power and every control the denial
of which would render the grant itself
ineffective. Thus where an Act confers
jurisdiction it impliedly also grants the
power of doing all such acts or employ
such means as are essentially necessary
for its execution.”

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In Paragraph 8 of the report, Their Lordships
set aside the order of the High Court directing
registration of FIR and held as under :-

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“8.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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10.Reverting to the facts of the present case in
light of the aforesaid principle of law laid
down by their Lordships of the Supreme Court, no
direction can be issued to the State authorities
to register FIR against respondent No. 5.
However, the alternate remedy available to the
petitioner is to approach to the competent
forum, and therefore, in this factual situation,
petitioner is at liberty to file complaint
before the jurisdictional criminal Court under
Sections 156(3) or 200 of CrPC. It is made clear
that this Court has not expressed any opinion on
the merits of the matter.

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11. Accordingly, this writ petition stands disposed

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of with the aforesaid liberty reserved in favour

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of the petitioner. No cost(s).

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Sd/-

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(Sanjay K. Agrawal)
Judge

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Harneet

Chandrapal Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Chandrapal Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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