Dismissed

M/s G.P. Kedia and Company v. State of Chhattisgarh

Chhattisgarh HC16 Dec 2022WPCR/364/2022

Case brief

AI extract

What is this about?

The Division Bench dismissed a writ petition seeking mandatory direction to the police to register an FIR under Section 154 CrPC. The Court held that grant of such writs floods the High Court and is not maintainable when efficacious statutory remedies, such as approaching a Magistrate under Section 156(3) CrPC, are available.

What did the court decide?

Writ petition dismissed in limine; petitioner given liberty to approach Superintendent of Police or Magistrate for FIR registration.

M/s G.P. Kedia and Company Vs… — Constitutional and Fundamental Rights | Chhattisgarh HC (2022)

WPCR-364-2022

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (Criminal) No. 364 of 20 22

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M/s G.P. Kedia and Company, aged about 72 years, through Proprietor- Gopal Prasad Kedia ( G.P. Kedia), aged about 72 years, S/ o Late Shri Mathura Prasad Kedia, Contractor, R/o A-7, Housing Board Colony, Balco Nagar, Korba, District- Korba (Chhattisgarh), Office Address- M/s G.P. Kedia and Company, Transport Nagar, Korba, Police Station Kotwali, Korba, Tahsil and District- Korba (Chhattisgarh)

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---- Petitioner

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Versus

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State of Chhattisgarh, through Superintendent of Police Korba, District- Korba, (Chhattisgarh)

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Station House Office, Police Station House Kotwali, Korba, District- Korba, (Chhattisgarh)

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---- Respondents

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For Petitioner : Mr. Ashok Verma & Mr. G. Sahu, Advocate For Respondent-State : Mr. Animesh Tiwari, Dy. A.G.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Rakesh Mohan Pandey, JJ

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Order on Board (16/12/2022)

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Sanjay K. Agrawal, J

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1. This writ petition has been filed by the petitioner seeking a direction to the respondents-authorities to register FIR/Offence against one Harshit Gupta and investigate the matter properly.

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WPCR-364-2022

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2. Mr. Ashok Verma, learned counsel appearing for the petitioner would submit that despite complaints having being made by the petitioner to the respondents-authorities vide Annexure-P/1 & P/2 for registration of FIR/offence against one Harshit Gupta, the same has not been registered. By placing reliance on the decision rendered by the Supreme Court in the matter of Lalita Kumari vs. Government of U.P.1 learned counsel would submit that upon receipt of information by a police officer in-charge of a police station disclosing commission of cognizable offence, it is imperative for him to register FIR under Section 154 of CrPC. Hence, present petition be allowed and appropriate direction be issued for registration of FIR by issuance of writ of mandamus .

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3. Per-contra , learned State counsel would submit that if petitioner is aggrieved by non-registration of FIR on the complaints made by him, he has alternative remedy to approach jurisdictional criminal court under Sections 156(3) of CrPC or to file complaint under Section 200 of CrPC, but in the instant writ petition, petitioner is seeking mandamus directing the police to register FIR under Section 154 of CrPC, which is not maintainable and petitioner be relegated to avail remedy of approaching jurisdictional criminal court under Section 156(3) of CrPC or to prefer complaint under Section 200 CrPC.

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4. We have heard learned counsel for the parties considered their

1 (2014) 2 SCC 1

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rival submissions made herein above and went through the record with utmost circumspection.

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5. In the matter of Lalita Kumari (supra) while dealing with a petition filed under Article 32 of the Constitution of Indian seeking issuance of writ of habeas corpus or directions of like nature against the respondents therein for the protection of minor daughter who was kidnapped, the Constitution Bench of the Supreme Court formulated following questions in Para-01 & 06 as under:

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“ 1. The important issue which arises for consideration in the referred matter is whether “a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?

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6. Therefore, the only question before this Constitution Bench relates to the interpretation of Section 154 of the Code and incidentally to consider Sections 156 and 157 also.”

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Thereafter, their Lordships while answering the above-stated questions laid down the principle of law that police has no option but to register the offence in shape of FIR under Section 154 CrPC on receipt of first information regarding commission of cognizable offence without verifying the veracity of the first information and held in Para120 to 120.6 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

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WPCR-364-2022

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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. A careful perusal of the judgment of Lalita Kumar (supra) would

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show that their Lordships of the Supreme Court were considering the

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WPCR-364-2022

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question as to whether registration of FIR is mandatory, in case it discloses commission of a cognizable offence. If the information does not disclose commission of a cognizable offence, it mandates to conduct a preliminary enquiry. But, there is no mandate by their Lordships to issue a mandatory direction for registration of FIR by the Constitutional Court under Article 226 of the Constitution of India.

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7. However, in the matter of Aleque Padamsee and others v. Union of India and others2 , the question was, whether it is within the power and jurisdiction 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 under Section 190 read with Section 200 of the CrPC are to be adopted.

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8. Likewise, in the matter of Sakiri Vasu v. State 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 it was pertinently 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

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2 (2007) 6 SCC 171

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3 (2008) 2 SCC 409

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WPCR-364-2022

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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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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 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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9. 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 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

4 (2016) 6 SCC 277

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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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10. Recently, the Supreme Court (three Judges Bench) in the matter

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of M. Subramaniam and Ors. v. S. Janaki and Ors.5 relying upon its earlier judgment in the matters of Sakiri Vasu (supra), Sudhir Bhaskarrao Tambe (supra) and Mohd. Yousuf v. Afaq Jahan6 set aside the direction of the High Court issued for registration of the FIR and investigation into the matter by the police. It was 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

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5 (2020) 16 SCC 728

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6 2006 (1) SCC 627

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protect their interest.”

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11. This Court also in the matter of R.K. Pandey vs. State of Chhattisgarh and others7 (by one of us, Sanjay K. Agrawal, J) while considering the question involved in the writ petition 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 abovestated 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 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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12. Reverting to the facts of the present case in light of principles of

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law laid down in aforementioned judgments, it is the case of the

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7 WPCR-136-2017, decided on 19.04.2017

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WPCR-364-2022

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petitioner that the complaint discloses the commission of cognizable offence, whereas it is the case of the State/respondent that petitioner has alternative remedies under Sections 156(3) & 200 of CrPC, as such, FIR cannot be registered and, therefore, in this fact-situation, in our considered opinion, the remedy of the petitioner, if any, is to avail the remedy available to him under Sections 154(3), 156(3), 190 read with 200 of CrPC, as such, no direction, as prayed by the petitioner in the instant writ petition, can be issued to register FIR in exercise of extra-ordinary jurisdiction of this Court under Article 226/227 of the Constitution of India.

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13. Accordingly, the writ petition deserves to be and is accordingly dismissed subject to the aforesaid liberty reserved in favour of the petitioner. No order as to cost(s). However, it is made clear that this Court has not expressed any opinion on the merits of the matter. \

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Sd/Sd/- (Sanjay K. Agrawal) (Rakesh Mohan Pandey) Judge Judge

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s@if

M/s G.P. Kedia and Company v. State of Chhattisgarh

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M/s G.P. Kedia and Company v. State of Chhattisgarh

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