Ashok Kumar and Another Vs State of Hp and Others

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2026:HHC:28002

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No. 610 of 2026

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Reserved on: 23.6.2026 Date of Decision: 10.7.2026.

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Ashok Kumar & anr. ….Petitioners Versus State of HP & ors. ….Respondents Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No. For the Petitioners : Mr Ajay Sharma, Senior Advocate, with Mr Atharv Sharma, Advocate. For Respondents No.1 to 4-State : Mr Ajit Sharma, Deputy Advocate General.

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Rakesh Kainthla, Judge

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The petitioners have filed the present petition for the registration of the FIR and the investigation of the allegations made against the private respondents. It has been asserted that the petitioners had purchased the land bearing Khasra No. 50/1/1 (old) and 1101 (new) from Joginder Singh in the years 2019 and 2023, vide two separate registered Sale Deeds. A demarcation was conducted, which was finalised on 31.08.2024. The petitioners

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2026:HHC:28002

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harvested the wheat crop grown on Khasra No. 1101 on 21.04.2026 and kept the bundles of the crop in their fields. The private respondents took away the bundles at about 10 p.m. The petitioners made a complaint to the SHO, Police Station, Sadar, Una, regarding the theft. The police recovered the bundles of wheat from the tube well of Ram Kumar. However, the police did not register the FIR or investigate the matter. The police filed a kalandra before the learned SDM, Una, under Section 126, 164 and 169 of Bharatiya Nagarik Sarakshah Sanhita (BNSS). The complaint made by the petitioner disclosed the commission of a cognizable offence, and the police were bound to register the FIR. Hence, it was prayed that the direction be issued to register the FIR and investigate the matter.

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I have heard Mr Ajay Sharma, learned Senior Counsel, assisted by Mr Atharv Sharma, learned counsel for the petitioners and Mr Ajit Sharma, learned Deputy Advocate General, for respondents No.1 to 4/State.

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Mr Ajay Sharma, learned Senior Counsel, assisted by Mr Atharv Sharma, learned counsel for the petitioners, submitted that the complaint made by the petitioners disclosed the commission of a cognizable offence. The police were bound

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2026:HHC:28002

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to register the FIR and carry out the investigation. However, the police failed to do so despite the recovery of the bundles of wheat. Therefore, he prayed that the present petition be allowed, the FIR be registered, and the action be taken against the private respondents as per the law.

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Mr Ajit Sharma, learned Deputy Advocate General for the respondents/State, submitted that the jurisdiction vested in this Court under Section 528 of the BNSS is extraordinary and should not be exercised when an alternative remedy is available. The petitioner has an alternative remedy of approaching the learned Magistrate. Therefore, he prayed that the present petition be dismissed.

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I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

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It is apparent from the petition that the grievance of the petitioners is that they had made a complaint to the police disclosing the commission of a cognizable offence, but the police failed to register the FIR and investigate the matter. The police recovered the stolen property and filed a kalandra before the

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2026:HHC:28002

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Executive Magistrate. Therefore, a prayer has been made for the registration of FIR.

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It was held by Kerala High Court in Vasanthi Devi versus S.I. of Police and anr., 2008 SCC online Kerala 47 that the Magistrate has the power to order the registration of the FIR and monitor the investigation under Section 156(3) of Cr.P.C.; therefore, the petition under Section 482 of Cr.P.C. for such directions is not maintainable. It was observed:

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“11. Later, after adverting to the principle that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such a grant effective, the learned Judges construed the power under Section 156(3) Cr. P.C. to include an implied power to direct a proper investigation. In para.24, the principle is stated with precision in the following words: "In view of the above-mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the magistrate under Section 156(3) Cr. P.C to order registration of a criminal offence and/or to direct the officer-in-charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation, including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr. P.C., we are of the opinion that they are implied in the above provision."

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The learned Judges elaborated on the above matter with a specific purpose. Their Lordships were aware of the practice of persons rushing to the High Court with Writ Petitions or petitions under Section 482 Cr.P.C. The

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learned Judges want to make it clear that ordinarily such a practice should not be encouraged, and the High Courts must refuse to interfere with such matters. In para.25, the following lines appear.

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"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 Cr.P.C. 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 alternative remedy."

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To dispel any impression that the Magistrate does not have powers to ensure a proper investigation, their Lordships proceeded further and stated so in para.27 in the following words.

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"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 his 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 Sections 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 200 Cr. P.C, and not by

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2026:HHC:28002

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filing a writ petition or a petition under Section 482 Cr.P.C."

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After observing that such an alternate remedy is available to such a petitioner, the learned Judges in para.28 stated thus:

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"It is true that an 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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Having said so, it has to be considered as to whether this writ petition filed by the petitioner deserves to be entertained. Even following the decision in Sakiri Vasu, as already noted in paragraph 25, the mandate is only that this court should not encourage the practice and should ordinarily refuse to interfere when applications are filed under Section 482 Cr. P.C and Article 226 of the Constitution complaining about the inadequate quality of the investigation. Jurisdiction is not taken away. The question is not one of lack of jurisdictional competence. The challenge is only one of identifying the fit case where, notwithstanding the existence of powers for the Magistrate under Section 156(3) Cr.P.C, this court should invoke the powers under Section 482 Cr. P.C and Article 226 of the Constitution.

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Having considered all the relevant aspects in this case, I am certainly of the view that this is a fit case where the petitioner must be left to seek appropriate directions from the learned Magistrate under Section 156(3) Cr.P.C. She must air her grievance that a proper investigation is not being conducted before the learned Magistrate concerned. The learned Magistrate, needless to say, must pass appropriate orders.”

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This judgment is based upon the judgment of the

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Hon’ble Supreme Court; therefore, there is a force in the

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2026:HHC:28002

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submission of Mr Ajit Sharma, learned Deputy Advocate General, that this Court should not exercise its jurisdiction under section 482 of Cr.P.C. and the remedy of the petitioner is to approach the concerned Magistrate.

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Therefore, the directions sought to be issued cannot be issued in view of the binding precedent of the Hon’ble Supreme Court.

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Consequently, the present petition fails, and the same is dismissed.

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The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the merits of the case.

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(Rakesh Kainthla) Judge

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10th July, 2026 (Chander)

Ashok Kumar and Another v. State of Hp and Others

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Ashok Kumar and Another v. State of Hp and Others

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