Thakur Gautam Singh vs State Of Chhattisgarh

The petitioner has preferred the present petition seeking a direction to the respondent authorities to register an FIR against respondent Nos.6 to 8 and also to take action against the erring officials.

The facts projected by the petitioner are that Late Satish Sejpal was running a shop named 'Mahima Cards' at Bhilai since 1997. Owner of the said shop Ms. Chanchal Ben Shah had executed an agreement for the sale of the said shop with Late Satish Sejpal in the year 2012 and received advance amount. Suddenly, Late Satish Sejpal got to know that the said shop was sold to respondent No.6, thereafter he immediately instituted a civil suit for specific performance of contract, but respondent No.6 started harassing him along with respondent Nos.7 & 8 and other family members. Despite the order of status quo being passed by the Civil Court, the respondent Nos.6 to 8 used to harass Late Mr. Sejpal to evict the said shop and also tried to extort money from him. The said respondents having high level contacts with the authorities got issued demolition notice of the said shop from the Municipal Corporation. On 23.02.2021, the respondents came to the petitioner's shop, assaulted him and his employees, threw articles on the road from the shop and also took keys from the counter and locked the shop. Thereafter, Late Sejpal lodged report against the respondent Nos.6 to 8, but Police registered offences being bailable under their influence. The electricity connection of the shop was also cut. On 27.02.2021, the said respondents destroyed the shop with the help of machineries and immediately they started raising construction over the said shop, though the articles of Mr. Sejpal were laying in the shop. Thereafter also, Late Tejpal made various complaints to the respondent authorities, but no action had been taken. On 28.05.2021 due to pressure and harassment of respondent Nos.6 to 8 and inaction of the respondent authorities, Mr. Sejpal died due to cardiac arrest. The petitioner being the close friend of Late Mr. Sejpal made various complaints to the respondent authorities to register an offence under Section 302/304 of IPC against respondent Nos.6 to 8, as Mr. Sejpal did not die naturally but due to pressure and harassment of the respondent Nos.6 to 8, but till date no FIR has been registered against them.

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.”

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.