Brajesh Sharma vs State Of M.P. & Ors

Vishal Mishra, J

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by

the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being

represented by the respective counsel through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

Present petition has been filed under Article 226 of the Constitution of India seeking a writ or direction to the respondent authorities for conducting fair

and impartial investigation in to the matter.

It is submitted by counsel for the petitioner that on on complaint being made by the petitioner against the accused persons, offence has been registered

under Sections 323, 294, 506 and 34 of IPC at Crime No.386 of 2020 at PS Mehgaon district Bhind. But the police authorities are not conducting the

investigation fairly and not arresting the accused till date. Petitioner approached them time and again, but since nothing is being done, this petition has

been filed before this court for a direction as stated herein above.

Heard learned counsel for the petitioner and perused the record.

The Hon'ble Supreme Court in the case of Sudhir Bhaskar Rao Tambe vs. Hemant Yashwant Dhage and Others reported in (2016) 6 SCC 277 has

considered the law laid down by the Hon'ble Supreme Court in the case of Sakri Vasu v. State of UP reported in (2008) 2 SCC 409 and has held as

under:-

“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€​

The same view has been reiterated by Hon'ble Supreme Court recently in the case of M.Subramaniyam and Others Vs. S.Janki and Others in

Cr.Appeal No.102 of 2011. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid cases this court is not inclined to entertain

the petition as the remedy is available to the petitioner before concerning Magistrate u/s. 156 (3) of Cr.P.C..

Accordingly, this petition is disposed of with liberty to the petitioner to approach the concerning Magistrate by way of filing application u/s. 156 (3) of

Cr.P.C, if so advised raising all the grievance pertaining to the fact that the respondents/authorities are not taking any action on the complaint being

submitted by the petitioner and if such an application is filed within 15 days from today, the concerning Magistrate is directed to look into the matter

and decide it expeditiously in accordance with law.

CC as per rules.