Ashok Makhija vs State Of M.P. & Others

S.A.Dharmadhikari, J

Heard on the question of admission and interim relief.

The present petition, under Article 226 of the Constitution of India has been preferred by the petitioner seeking the following reliefs:-

“(i) That, the respondents be directed to conduct fair and proper investigation/enquiry in pursuance of FIR (P/1) registered by the petitioner against

the accused persons in a specified time frame.

(ii) That, the respondent's police authority be further directed not to harass the petitioner and his family members based on the frivolous allegation

made by the accused persons against them and restrain themselves from leaking false news to the press against the petitioner and his family

members.

(iii) That, the other relief doing justice including cost of awarded†Brief facts leading to filing of this petition are that on 16/2/2021 the petitioner

lodged an FIR against the accused persons namely Babita and Gagandeep, his tenants, alleging commission of theft of cash and gold jewelry. Based

thereupon, Crime has been registered against the accused persons at Crime No.74/21 for the offences punishable under sections 380 and 454 of the

IPC. After registration of FIR, accused Babita has been arrested and recovery of part of stolen articles has been made from her. However, the co-

accused is still absconding.

Learned counsel for the petitioner submits that after arrest of accused Babita, the police Authorities have now started harassing the petitioner and his

family members based on false statement given by Babita who is trying to divert the whole matter by managing and misguiding the police Authorities

saying that the petitioner and his family members are involved in flesh trade. The police Authorities are not only trying to divert the whole matter in a

new direction but without conducting a proper investigation and cross-checking the statement of the accused are sharing the information of the case

with the media which is causing irreparable injury and loss of reputation to the petitioner. Accordingly, it is prayed that direction may be issued to

conduct fair and proper investigation/enquiry in pursuance of FIR (Ex.P/1) and respondents/Police Authority may be directed not to harass the

petitioner and his family members based on frivolous allegations.

Per contra learned Panel Lawyer contends that the relief prayed in this petition cannot be granted to the petitioner in view of the fact that petitioner is

having an alternative efficacious remedy of filing complaint before the Magistrate under section 156(3) of the Cr.P.C. He further submits that it is well

settled that disputed questions of fact cannot be looked into by this Court in Article 226 of the Constitution of India. As such, the present petition is

liable to dismissed at the threshold.

Heard, learned counsel for the parties.

In the case of Sakiri Vasu vs State Of U.P. And Others ((2008)2 SCC 409) has held as under:-

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

Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. 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) Cr.P.C. 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.

The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585 (vide para 17)W. e 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) Cr.P.C., and if the Magistrate is satisfied he can order a

proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these

powers a Magistrate enjoys under Section 156(3) Cr.P.C.

Section 156 (3) states:

“Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.â€​

The words `as abovementioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.

Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the

Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the

police to do the investigation properly, and can monitor the same.

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 re-opening

of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).

In our opinion Section 156(3) Cr.P.C. 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 F.I.R. 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) Cr.P.C., 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.

In view of the abovementioned legal position, we are of the view that although Section 156(3) is verybriefly 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.

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

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.

(Emphasis supplied)

Recently the Apex Court in the case of M.Subramaniam Vs. S. Janaki (Cr.A. No.102 of 2011) decided on 20/3/2020, has held as under:-

The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others ((2016)6 SCC 277), in which it is observed.

“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.

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.

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 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.â€​

(Emphasis supplied)

In congruence with the aforesaid well settled position, a Division Bench of this Court has taken a similar view in the case of Shweta Bhadoriya Vs.

State of M.P. & others (2017 (1) MPLJ (Cri) 338)).

In view of the legal conspectus on the point in issue, as cited above, since the petitioner has rushed to this Court without availing the alternative

efficacious remedy as envisaged under the Cr.P.C., this writ petition cannot be entertained and is, accordingly, dismissed.

However, if the petitioner approaches the Magistrate concerned under the provisions of the Code of Criminal Procedure, the Magistrate concerned

shall proceed in accordance with law including the precedents enumerated hereinabove.