Om Prakash Koshaley vs State Of Chhattisgarh

The facts projected by the petitioner are that the petitioner made a written report before Police Station, Hirri, District Bilaspur against respondent

Nos.4 and 5 alleging therein that his father Dular Ram had obtained agricultural land bearing Khasra No.1010/2 area 0.182 hectare situated at village

Kharkena, P.H.No.36, Revenue Circle Sakri, Tahsil Sakri, District Bilaspur (C.G.), by way of partition and the same was mutated and got recorded in

revenue record in his father's name and they are in possession of the said land. After the death of his father, the land in question was fauti mutated in

the revenue record in the name of Sultana Bai (wife of Dular Ram), son Satya Prakash and the Petitioner-Om Prakash. It has been further alleged in

the complaint that petitioner's uncle-respondent No.4 Mukutram, without the petitioner's knowledge, executed the sale deed in favour of Nand Kishore

Bansal - respondent No.5 with the help of respondent No.6 manipulating revenue documents and thereby committed fraud. It has been stated in the

petition that a civil suit has also been moved wherein interim protection has been granted in favour of the petitioner.

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

(i) That this Hon'ble Court may kindly be pleased to issue appropriate writ by directing the respondent No. 1 to 3 to take necessary steps upon

complaint of the petitioner according to the law laid down by Hon'ble Court in the case of Lalita Kumar Vs. State of U.P., in the interest of justice

(ii) That this Hon'ble Court may kindly be pleased to direct the police respondent authorities to lodge FIR against the accused respondent No. 4 to 6 as

fraud and cheating committed by them with the petitioner, in the interest of justice.

(iii) Any other relief which may be suitable in the facts and circumstances of the case, may also be granted.

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

paragraphs 27 and 28 and held 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 Hon'ble the Supreme Court in Sakiri Vasu (Supra) has again come up for consideration before three judges (2008) 2 SCC

409 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 to the petitioner to approach the Court of Judicial Magistrate First Class having territorial jurisdiction over

the place of offence if it deemed 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 Magistrate will follow the procedure prescribed under the provisions of the Cr.P.C. It is made clear that this Court has not expressed any opinion

on merits of the case whether the averments made in the petition discloses 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.

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, at the

admission stage.