Hanumandas vs State Of Madhya Pradesh & Ors

Heard.

This petition has been filed under Section 482 of the Code of Criminal Procedure for directing respondents No.1 to 4 for taking action against

respondents No.5 to 7.

Learned counsel for the applicant submitted that land survey No.212/1k, 211/1 total area 3.642 hectares situated at Amarkantak is a Government

Land and belongs to Forest Department. Applicant no. 7 in connivance with non applicant no.5 and 6 wants to grab the said land and non applicant no.

5 and 6 are going to alote said land in favour of non applicant no.7. In this regard applicant lodged a complaint before respondents No.1 to 4 to

prosecute the non applicant no 5 to 7. But they did not take any action against non applicant no 5 to 7. So non applicant No.4 be directed to take action

against non applicant No.5 to 7 on the basis of applicant’s complainant in the light of judgements passed by Apex court in the case of Lalita

Kumari V/s. State of U.P. & Others AIR 2014 SC 187. In this regard learned counsel also placed reliance on the judgements passed by this Court in

Giridhari Lal Kanak v. State of M.P. & Ors., reported in 2002 (1) MPLJ 596 and Smt. Laxmi Sharma v. State of M.P. & Ors. reported in 2007 (III)

MPJR 226.

Learned counsel for the respondent/State opposed the prayer and submitted that if applicant is aggrieved from non-registration of FIR, he is free to file

private complaint before the competent court and prays for rejection.

This court has gone through the record and arguments put forth by both the parties. From the averment of the petition and the document filed by the

applicant it appears that applicant wants the court to direct the Superintendent of Police to take action on that complaint and register the crime against

the non applicant No.5 to 7.

According to provisions of section 154 to 156 Cr.P.C. where a person has approached the Police Station under Section 154 of the Code, but the Police

does not register FIR as contemplated under law, he has a right to make a complaint to the Superintendent of Police concerned in terms of Section

154(3) of the Code and such Superintendent of Police concerned exercising the powers of an officer in charge of a police station would investigate the

matter himself or direct the investigation to be conducted by another police officer subordinate to him. If there is inaction on the part of the Station

House Officer and the Superintendent of Police, the complainant is at liberty to move the jurisdictional Magistrate under Section 156(3) Cr.P.C.

The Apex Court in the case of Lalita Kumari V/s. State of U.P. & Others reported in 2014 (2) SCC 1, relied by the learned counsel of the applicant

while dealing with the exercise of power under Section 156(3) Cr.P.C. by the Magistrate, held that,

“The registration of First Information Report is mandatory in Cognizable offences and action will be taken against the police officer for his failure

to register a First Information Report on the complaint of a cognizable offence.

If action is not taken by the superior officer under Section 154 (3) of the Code, then any person has a right to invoke the power of the court under

Section 156(3) of the Code. The Legislature provides a specific protection in terms of Section 156(3) of the Code and gives right to a person to

approach the court of competent jurisdiction for issuance of direction to the police officer to investigate the matter in accordance with law.â€​

The Bombay High Court in the case of State of Maharashtra V/s. Shashikant Shinde reported in 2013 All MR (Cri) 3060, held that,

“when a petition or complaint is presented before the Magistrate, in which a request is made for taking action as mentioned in Section 2(d) of the

Code, the Magistrate is expected to apply his mind. The Magistrate has to ascertain as to whether the contentions made in the petition /complaint

constitute any offence. If they constitute some offence then the Magistrate is expected to take decision as to whether the matter needs to be referred

to police for investigation as provided in section 156(3) of the Code or he needs to proceed further as provided in Section 200 and subsequent Sections

of Chapter XV of the Code. There is a discretion with the Magistrate in this regard. Though police officer is duty bound to register case on receiving

information of cognizable offence, the Magistrate is not bound to refer the matter to police under section 156(3) of the Code.â€​

And a Three-Judge Bench of Apex Court in Ramdev Food Products(P) Ltd. V/s. State of Gujarat, (2015) 6 SCC 439 has held that,

“the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance

and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is

issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to

straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases

where the Magistrate has yet to determine “existence of sufficient ground to proceedâ€​.

The Apex Court also in Priyanka Srivastava Vs State of U.P. reported in (2015) 6 SCC 287, held as follows;

“In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly

sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would

be well advised to verify the truth and also can verify the veracity of the allegations.â€​

Regarding maintainability of petition directly in the High Court for registering the FIR, Hon'ble Apex Court in his judgment passed in Sakiri Vasu V/s.

State of U.P. & others reported in (2008) 2 SCC 409 clearly observed that :-

“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) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. 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) Cr.P.C. instead of rushing to the

High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover, he has a further remedy of filing a criminal complaint under

Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

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 police officers concerned, 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.â€​

The same view has been reiterated by the Apex Court in Sudhir Bhaskarrao Tambe V/s. Hemant Yashwant Dhage and others reported in (2016) 6

SCC 277 observing in paras 2 and 3, as follows:-

“This Court has held in Sakiri Vasu v. State of UP (2008) 2 SCC 409 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€​

“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€​

So in the light of above pronouncements it emerges that if there is inaction on the part of the Station House Officer and the Superintendent of Police,

the complainant is at liberty to move the jurisdictional Magistrate under Section 156(3) Cr.P.C. (not directly in the High court under section 482 of

Cr.P.C.) The complaint shall be accompanied by an affidavit as mandated by the Supreme Court in Priyanka Srivastava (supra). On receipt of the

complaint, the Magistrate shall pass orders thereon, either issuing directions or dismissing the petition.

So petition is rejected with a direction that if police is not registering FIR on the complaint of petitioner, he will be free to avail alternative remedy to

approach the concerned Magistrate under Section 156(3) or by filing a complaint under section 200 of Cr.P.C as held by the Hon'ble Apex Court in

the aforesaid judgments.

Petition is disposed of accordingly.