Sulochana Sahu vs State Of Chhattisgarh

The petitioner has preferred the present petition seeking a direction to the respondent authorities to initiate investigation against respondent Nos.4 &

5, as the report has already been lodged against them by the husband of the petitioner.

The facts projected by the petitioner are that the respondent No.5, the daughter of the petitioner, married to respondent No.4 and out of their

wedlock, a baby girl was born. After the birth of the child, the respondent No.5 stayed at her matrimonial house for about 3 months and thereafter the

respondent No.4 and respondent No.5 were residing at Dhamtari. After some time, the relationship between them got discontinued. In the year 2020,

the husband of the petitioner retired from the service from the Department of Bhilai Steel Plant and he received approximately Rs.90 Lakhs as

retirement dues. When the respondent No.4 & 5 knew about this fact, they again united with each other and started living together. The respondent

No.5 expressed her desire to visit the matrimonial house, which was happily accepted by the petitioner and her family members. In the month of

August, 2021, the respondent No.5 along with her daughter came there for staying. After some time, the respondent No.5 started demanding 50% of

the retirement dues, which was turned down by the petitioner and her husband, as a result of which a heated conversation took place between them,

upon which the son of the petitioner Yogesh Sahu came there, intervened and warned respondent No.5 not to demand the said amount. The

respondent No.5 stayed there for about 15 days and thereafter she along with her daughter went to Bilaspur and started residing with her husband.

After one month, a false report was lodged by the respondent No.5 against the son of the petitioner Yogesh Sahu of committing rape with her,

thereafter an FIR was registered and Yogesh Sahu was arrested. The petitioner and her husband appeared before the respondent Nos.2 & 3 and

submitted a written report against the respondent Nos.4 & 5 on 10.12.2021, but till date no action has been taken.

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

“10.1 The Hon'ble Court may be pleased to issue a writ of mandamus commanding respondent Nos.2 & 3 to initiate an enquiry on the basis of the

complaint lodged by the petitioner's husband dated 10.12.2021 (Annexure-P/6) and proceed further in accordance with the provision of law.

10.2 Any other relief, which this Hon'ble Court may deef mit and proper looking to the facts and circumstances of the case, may also be awarded to

the petitioner including the cost and expenses of this petition.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.

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.