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2021 DIGILAW 258 (MP)

Ashok Makhija v. State of M. P.

2021-02-26

S.A.DHARMADHIKARI

body2021
ORDER : S.A. Dharmadhikari, J. 1. Heard on the question of admission and interim relief. 2. The present petition, under Article 226 of the Constitution of India has been preferred by the petitioner seeking the following reliefs:- "(i) That, the respondents be directed to conduct fair and proper investigation/enquiry in pursuance of FIR (P/1) registered by the petitioner against the accused persons in a specified time frame. (ii) That, the respondent's police authority be further directed not to harass the petitioner and his family members based on the frivolous allegation made by the accused persons against them and restrain themselves from leaking false news to the press against the petitioner and his family members. (iii) That, the other relief doing justice including cost of awarded." 3. Brief facts leading to filing of this petition are that on 16/2/2021 the petitioner lodged an FIR against the accused persons namely Babita and Gagandeep, his tenants, alleging commission of theft of cash and gold jewelry. Based thereupon, Crime has been registered against the accused persons at Crime No. 74/21 for the offences punishable under sections 380 and 454 of the IPC. After registration of FIR, accused Babita has been arrested and recovery of part of stolen articles has been made from her. However, the co-accused is still absconding. 4. Learned counsel for the petitioner submits that after arrest of accused Babita, the police Authorities have now started harassing the petitioner and his family members based on false statement given by Babita who is trying to divert the whole matter by managing and misguiding the police Authorities saying that the petitioner and his family members are involved in flesh trade. The police Authorities are not only trying to divert the whole matter in a new direction but without conducting a proper investigation and cross-checking the statement of the accused are sharing the information of the case with the media which is causing irreparable injury and loss of reputation to the petitioner. Accordingly, it is prayed that direction may be issued to conduct fair and proper investigation/enquiry in pursuance of FIR (Ex. P/1) and respondents/Police Authority may be directed not to harass the petitioner and his family members based on frivolous allegations. 5. Accordingly, it is prayed that direction may be issued to conduct fair and proper investigation/enquiry in pursuance of FIR (Ex. P/1) and respondents/Police Authority may be directed not to harass the petitioner and his family members based on frivolous allegations. 5. Per contra learned Panel Lawyer contends that the relief prayed in this petition cannot be granted to the petitioner in view of the fact that petitioner is having an alternative efficacious remedy of filing complaint before the Magistrate under section 156(3) of the Cr.P.C. He further submits that it is well settled that disputed questions of fact cannot be looked into by this Court in Article 226 of the Constitution of India. As such, the present petition is liable to dismissed at the threshold. 6. Heard, learned counsel for the parties. 7. In the case of Sakiri Vasu v. State of U.P. and others (2008) 2 SCC 409 : ( AIR 2008 SC 907 ) has held as under:- 11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154, Cr.P.C., then he can approach the Superintendent of Police under Section 154(3), Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FTR is still not registered or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3). Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FTR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. 13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi (JT 2007 (10) SC 585 : AIR 2007 SC 3234 ) (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3). Cr.P.C. and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3). Cr.P.C. 14. Section 156 (3) states: "Any Magistrate empowered under Section 190 may order such an investigation as abovementioned." The words 'as abovementioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station. 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. 16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar v. A.C. Saldanna, AIR 1980 SC 326 (para 19). 17. In our opinion Section 156(3), Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3), Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 24. Section 156(3), Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3), Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3), Cr.P.C., we are of the opinion that they are implied in the above provision. 27. 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 FTR 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 Sections 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 482. 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. (Emphasis supplied) 8. Recently the Apex Court in the case of M. Subramaniam v. S. Janaki (Cr.A. No. 102 of 2011) decided on 20/3/2020 (AIR Online 2020 SC 387), has held as under:- 6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and others (2016) 6 SCC 277 : AIR Online 2020 SC 387, in which it is observed. "2. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and others (2016) 6 SCC 277 : AIR Online 2020 SC 387, in which it is observed. "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. 3. 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. 4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3). CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police"). CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police"). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court." (Emphasis supplied) 9. In congruence with the aforesaid well settled position, a Division Bench of this Court has taken a similar view in the case of Shweta Bhadoriya v. State of M.P. and others (2017 (1) MPLJ (Cri) 338)). 10. In view of the legal conspectus on the point in issue, as cited above, since the petitioner has rushed to this Court without availing the alternative efficacious remedy as envisaged under the Cr.P.C., this writ petition cannot be entertained and is, accordingly, dismissed. 11. However, if the petitioner approaches the Magistrate concerned under the provisions of the Code of Criminal Procedure, the Magistrate concerned shall proceed in accordance with law including the precedents enumerated hereinabove.