Bindu Vishwakarma vs State Of Chhattisgarh

The petitioner has preferred the present petition seeking a direction to the respondent authorities to register an FIR against the respondent No.4.

The facts projected by the petitioner are that the petitioner and respondent No.4 were having acquaintance with each other and out of this familiar

relationship between them, respondent No.4 used to take monetary help from the petitioner. The outstanding amount of Rs.4,50,000/- was to be paid

by the respondent No.4 to the petitioner, but the said amount had not been paid for the last 2 years. Whenever the petitioner demanded the said

amount from the respondent No.4 through mobile phone or personally, the respondent No.4 used to give false assurances that he would pay the

amount. On 20.12.2021 at 11 pm, Smt. Neha Nair, wife of respondent No.4 called the petitioner to her house for repayment of the aforesaid amount,

then the respondent No.4 in an inebriated condition tried to outrage the modesty of the petitioner and also used filthy language against her. On raising

alarm, the petitioner escaped from the clutches of the respondent No.4 by the help of her husband. Immediately thereafter, on the same condition the

petitioner approached before the respondent No.3, but the respondent No.3 did not even bother to get her medically examined, in turn she was advised

to come on the next day. On the next day also, the report was not lodged. On 22.12.2021, the respondent No.3 refused to register a complaint for

cognizable offence, whereas a complaint under Section 155 of CrPC bearing Report No.89/2021 dated 22.12.2021 was lodged against the respondent

No.4 saying that the dispute is of simple money transaction and she was also advised to take shelter of the Court. Being aggrieved by the conduct of

the respondent No.3, the petitioner submitted a written report before the respondent No.1 on the same date vide Annexure-P/2 and thereafter before

the respondent No.2 also vide Annexure-P/3, however, no action has been taken till date.

On the basis of the aforesaid factual matrix, the petitioner has filed this petition and prayed for following reliefs:-

“10.1 That, this Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner from the office of

respondent Nos.1, 2, 3 by issuing a writ of certiorari and after perusal of record may kindly be pleased to direct the respondent No.1, 2, 3 commanding

them to register FIR against the respondent No.4 by issuing a writ of mandamus.

10.2 Any appropriate writ, direction or order may also kindly be passed which this Hon'ble Court deems fit and appropriate in the circumstances of the

case, in the interest of justice.â€​

The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of Uttar Pradesh & others (2008) 2 SCC 409 has examined the issue and has held in

paragraphs 27 & 28 as under:-

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

“28. 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.

The judgment passed by the 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 & another  (2020) SCC Online SC 341. The Supreme Court after considering the same judgment

has held at para 7 & 9 which are as under:-

The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, in which it is observed: (SCC p. 278, paras 2-4) ""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.â€​

“9. 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.â€​

From analysis of the above legal provisions, it is crystal clear that the writ petition under Article 226 of the Constitution of India is not maintainable

before the High Court. However, it is open for the petitioner to approach the Court of Judicial Magistrate First Class having territorial jurisdiction over

the place of offence if he deems it appropriate and necessary for filing of complaint under Section 156(3) of Cr.P.C or Section 200 of Cr.P.C. and in-

turn, the Magistrate will follow the procedure prescribed under the provisions of the Cr.P.C.

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

writ petition is not maintainable.

With the aforesaid observations, the writ petition (criminal) is finally disposed of with the aforesaid liberty in favour of the petitioner.

It is made clear that this Court has not expressed any opinion on merits of the case and whether the averments made in the petition disclose any

criminal offence or not, it is for the concerning Magistrate to decide the case on merits of the case without being influenced by any of the observations

made by this Court.