Sunil Kumar Ekka vs State Of Chhattisgarh

The facts projected by the petitioner are that respondent No. 6 has committed forgery in Government revenue documents and sold the Government

land to some of the villagers. On 17.11.2018, Upper Collector, Balrampur enquired the case and found that respondent No. 6 has committed forgery,

thereafter on the basis of complaint made by the petitioner, Collector cancelled lease of respondent No. 6 on 21.12.2018 and further directed for

registering the FIR against respondent No. 6. On 13.09.2021, a written complaint has been submitted by the petitioner before the Collector Balrampur,

District- Balrampur-Ramanujganj against respondent No. 6 and requested the Collector for inquiry and taking appropriate action against respondent

No. 6 but FIR has not been registered. Petitioner has filed this petition for seeking direction to respondent No. 5 to register FIR against respondent

No. 6. Hence, this petition.

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

a. The Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner.

b. The Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus directing the respondent No. 5 to register FIR against

respondent No.6.

c. The Hon'ble Court may kindly be pleased to grant any other relief as it deems fit and proper in the facts and circumstances of the case.

The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of Uttar Pradesh & others 1, 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.

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 2. 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.

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 the 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 disposed of with the aforesaid liberty in favour of the petitioner.