Ramji Singh vs State Of Chhattisgarh And Ors

@JUDGMENT-JUDGMENT

This writ petition has been filed by the petitioner herein seeking direction to the concerned police authority to register FIR against respondents No. 5

and 6 stating that despite of several complaints having been made to the Station House Officer and the Superintendent of Police, Bilaspur which

discloses commission of cognizable offence, yet F.I.R. has not been registered against respondents No. 5 and 6.

Mr. Rahul Tamaskar, learned counsel for the petitioner would submit that respondents No. 5 and 6 have committed cognizable offence against the

petitioner and for that he made a complaint on 04/03/2015 to the Superintendent of Police, Bilaspur and several other complaints to the Station House

Officer for registration of FIR against respondents No. 5 and 6 which has not been done, therefore, appropriate direction be issued to the concerned

police authority to register FIR against respondents No. 5 and 6 in light of the decision rendered by this Court in the matter of Bhushan Singh Rathiya

v. State of Chhattisgarh and Ors. Writ Petition (Cr.) No. 9 of 2016 decided on 26/08/2016.

I have heard learned counsel for the petitioner at length.

At this stage, it is appropriate to notice the judgment rendered by the Supreme Court in Lalita Kumari v. Government of U.P. (2014) 2 SCC 1 their

Lordships have held that registration of FIR is the mandatory duty of the police and held as under :¬

“120. In view of the aforesaid discussion, we hold: 120.1 Registration of FIR is mandatory under section 154 of the Code, if the information

discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be

conducted only to ascertain whether cognizable offence is disclosed or not.

120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing

the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose

reasons in brief for closing the complaint and not proceeding further.

120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers

who do not register the FIR if information received by him discloses a cognizable offence.

120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the

information reveals any cognizable offence.

120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The

category of cases in which preliminary inquiry may be made are as under:

Matrimonial disputes/family disputes

Commercial offences

Medical negligence cases

Corruption cases

Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without

satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.â€​

However, in the matter of Aleque Padamsee and others v. Union of India and others (2007) 6 SCC 171, the question was, whether it is within the

powers of the Court to issue a writ directing the police to register an FIR? In that case, Their Lordships of the Supreme Court have held that in case

the police fails to register an FIR, the modalities set out under Section 190 read with Section 200 of the CrPC are to be adopted and observed.

Likewise, in the matter of Sakiri Vasu v. State of U.P. (2008) 2 SCC 409, the Supreme Court has categorically held that if a person is aggrieved

that his FIR has not been registered by the police or having been registered, proper investigation is not done, the remedy available to the aggrieved

person lies to approach the Judicial Magistrate under Section 156(3) of the CrPC, and observed as under :¬

“25.We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the

police station and/ or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under section

482, Criminal Procedure Code. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in

such matters, and relegate the petitioner to his alternating remedy, firstly under section 154(3) and section 36, Criminal Procedure Code before the

concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under section 156(3).

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), Criminal Procedure Code or other police officer referred to in section 36, Criminal Procedure Code. 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),

Criminal Procedure Code instead of rushing to the High Court by way of a writ petition or a petition under section 482, Criminal Procedure Code.

Moreover he has a further remedy of filing a criminal complaint under section 200, Criminal Procedure Code. Why then should writ petitions or

section 482 petitions be entertained when there are so many alternative remedies?â€​

The principle of law laid down in Sakiri Vasu (supra) was followed with approval by Their Lordships of the Supreme Court in the matter ofS udhir

Bhaskarrao Tambe v. Hemant Yashwant Dhage and others (2016) 6 SCC 277 in which it was 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. â€​

This Court considering the decisions rendered in Sakiri Vasu (supra) and Aleque Padamsee (supra), in W.P.(Cr.)No.136/2017 (R.K. Pandey v.

State of Chhattisgarh and others), decided on 19¬4¬2017, held as under :¬

“(8) Thus, the petitioner has the efficacious statutory alternative remedy of approaching first before the Superintendent of Police under Section

154(3) of the CrPC or other officer mentioned in Section 36 of the CrPC. Despite approaching the Superintendent of Police or other officer as

mentioned in Section 36 of the CrPC, the petitioner is entitled to make an application to the Magistrate under Section 156(3) of the CrPC and also has

a further remedy of filing complaint under Section 200 of the CrPC. The Supreme Court in like situation has deprecated the practice of directly

entertaining writ petition or petition under Section 482 of the CrPC by this Court and emphasized that the Magistrate has very wide powers to direct

registration of an FIR and to ensure a proper investigation in Sakiri Vasu (supra), and followed by this Court also in above¬stated case.

(9)In view of the above, the petitioner has not properly approached the above stated forums as rendered in Sakiri Vasu (supra). I do not find any case

of issuance of a writ to the police authorities to register FIR on the report made by the petitioner and the writ petition is liable to be dismissed and it is

accordingly dismissed in limine but without imposition of cost(s). However, the petitioner shall be at liberty to avail other appropriate remedies, in

accordance with law for registration of FIR is concerned as indicated by the Supreme Court in Sakiri Vasu (supra) and also at liberty to bring to the

notice of said authorities the decision rendered by the Supreme Court in Lalita Kumari (supra).â€​

The order of this Court in R.K. Pandey (supra) was assailed before Division Bench in W.A.No.231/2017 (R.K. Pandey v. State of Chhattisgarh

and others) in which the Division Bench of this Court considered the matter and dismissed the appeal by observing as under :¬

“5. While Lalita Kumari v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1is authority for the position that the police officers have

statutory duty to act upon the complaint in the manner delineated therein, the fact of the matter remains that the learned Single Judge, has through the

impugned order, only refused to entertain the writ petition noticing that the Petitioner has adequate efficacious alternative statutory remedy in view of

Sections 156(3) and 200 of the CrPC, for which, the preposition that there can be no dispute for the precedents in Sakiri Basu (supra) and Aleque

Padamsee (supra). Hence, we do not find our way to hold that the exercise of discretionary jurisdiction by the learned Single Judge can be faulted to

any ground to place this intra¬Court appeal to the Division Bench in proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division

Bench) Act, 2006. Hence, this appeal fails.â€​

Apart from this, a Division Bench of the M.P. High Court in the matter of Shweta Bhadoria v. State of M.P. and others 2017 (I) MPJR 247 has

held that if FIR is not registered on the basis of complaint which discloses a cognizable offence, remedy available to the aggrieved person is to take

recourse to the provisions under Sections 154(3), 156(3), 190 and 200 of the CrPC, and observed as under: ¬

“6. Before parting the conclusion arrived at based on the above discussion and analysis is delineated below for ready reference and convenience

:¬

(1) Writ of mandamus to compel the police to perform its statutory duty u/s 154 Cr.P.C. can be denied to the informant/victim for non¬availing of

alternative remedy u/Ss. 154(3), 156 (3), 190 and 200 Cr.P.C., unless the four exceptions enumerated in decision of Apex Court in the case of

Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1, come to rescue of the informant/victim.

(2) The verdict of Apex Court in the case of Lalita Kumari v. Government of U.P. & Ors. reported in (2014) 2 SCC 1 does not pertain to issue of

entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 154 Cr.P.C. without availing alternative remedy

under Sections 154(3), 156(3), 190 and 200 Cr.P.C.

(3) Subject to (1) supra the informant/victim after furnishing first information regarding cognizable offence does not become functus officio for seeking

writ of mandamus for compelling the police authorities to perform their statutory duty under Section 154 Cr.P.C. in case the FIR is not lodged.

(4) Subject to (1) supra the proposed accused against whom the first information of commission of cognizable offence is made, is not a necessary

party to be impleaded in a petition under Article 226 of the Constitution of India seeking issuance of writ of mandamus to compel the police to perform

their statutory duty under Section 154 Cr.P.C.â€​

The principle of law laid down in Shweta Bhadoria (supra) was subsequently followed by another Division Bench of that Court in the matter of

Dharmendra Sonkar v. State of M.P. and others 2018(1) M.P.L.J. 716 and in that case, the Division Bench speaking through Hemant Gupta, CJ, (as

then His Lordship was) clearly held that in Lalita Kumari (supra), there is no mandate that writ Court under Article 226 of the Constitution of India,

should issue a direction for registration of FIR and observed as under: ¬

“7. The Constitution Bench in Lalita Kumari (supra) was considering the question as to whether registration of an FIR is mandatory, in case it

discloses a cognizable offence. If the information does not disclose a cognizable offence, it mandates to conduct a preliminary enquiry. But, there is no

mandate in the aforesaid judgment that this Court under Article 226 of the Constitution of India should issue a direction for registration of an FIR.

Such a question has been specifically answered in Aleque Padamsee and others (supra), Sakiri Vasu (supra) and Sudhir Bhaskar Rao Tambe

(supra).â€​

Reverting to the facts of the present case in light of the principle of law laid in the above¬ stated judgments, it appears from the perusal of the

record that upon inquiry, Police has clearly come to the conclusion on 12/06/2016 that no cognizable offence is said to have been committed by

respondents No. 5 and 6 and they declined to register FIR against them and considering the nature of the dispute, this writ petition cannot be

entertained directing the Station House Officer of the concerned police station to register F.I.R against respondents No. 5 and 6. However, petitioner

is at liberty to approach the jurisdictional criminal Court under Section 156(3) and Section 200 of the Cr.P.C in accordance with law.

With the aforesaid liberty reserved in favour of the petitioner, this writ petition stands disposed of. No cost(s).