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Madhya Pradesh High Court · body

2022 DIGILAW 314 (MP)

VINOD SINGH v. STATE OF MADHYA PRADESH

2022-02-24

ROHIT ARYA

body2022
ORDER/JUDGMENT : – Shri R. S. Bansal, learned counsel for the petitioner. Shri G. K. Agrawal, learned Government Advocate for the respondent-State on advance notice. 2. Petitioner has approached this Court, under Article 226 of the Constitution of India, claiming to have filed a complaint (Annexure P-1) on 25-10-2021 before Police Station Maharajpura, Gwalior alleging fraud in the matter of loan transaction. It is the grievance of the petitioner that despite filing of such complaint, no action whatsoever is being taken thereupon. 3. Learned counsel for the petitioner while relying upon the decision of this Court in the case of Rajendra Singh Pawar and others vs. State of M.P. and others, reported in 2021(1) M.P.L.J. (Cri.) 343, submits that respondents/Police Authorities may be directed to register a criminal case against the miscreants on application/complaint filed by the petitioner (Annexure P/1), take action against the accused persons, and after carrying out fair and impartial investigation into the matter, file charge sheet before the competent Court having criminal jurisdiction 4. Per contra, learned Government Advocate contends that the relief sought for cannot be countenanced in the light of law laid down by the Hon’ble Apex Court in the cases of Aleque Padmsee and others vs. Union of India and others, (2007) 6 SCC 171 , Sakiri Vasu vs. State of U. P., (2008) 2 SCC 409 , reiterated in the case of Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others, reported in (2016) 6 SCC 277 and followed by the Division Bench of this Court in the case of Shweta Bhadoria vs. State of Madhya Pradesh and others, reported in and W.A. No. 658/2017 (Dr. Balveer Kethoria vs. State of Madhya Pradesh and others,) wherein, it has been ruled that in exercise of power under Article 226 of the Constitution of India, the High Court cannot direct for registration of the FIR, as remedies are available to the person under sections 154(3) and 200 of the Cr.P.C. As a matter of fact, the aforesaid decisions of the Apex Court and Division Benches of this Court appear to have escaped the notice of learned Single Judge. Albeit, in paragraph 4 of the said judgment, the learned Single Judge has himself observed as under : – “In view of the aforesaid law, this Court does not deem fit to exercise jurisdiction to give direction to police authorities to register First Information Report as petitioners have not demonstrated that their case falls in exception laid down in case of Whirlpool Corporation (supra).” As such, the submissions advanced on the basis of judgment of the Coordinate Bench of this Court in the case of Rajendra Singh Pawar (supra) striking a different note, cannot be countenanced in view of settled legal position. 5. Heard. 6. This Court has carefully perused the aforesaid judgments passed by the Hon’ble Apex Court as well as by the Division Bench of this Court. For ready reference, relevant extracts of decision in Sakari Vasu (supra) is reproduced thus : – 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 FIR 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 FIR 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 (vide para 17). 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 (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) 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 vs. 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 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 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) 7. Recently the Apex Court in the case of M. Subramaniam vs. S. Janaki, Cr.A. No. 102 of 2011 decided on 20-3-2020, has held as under : – 6. The said ratio has been followed in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others, (2016) 6 SCC 277 , in which it is observed. “2. (Emphasis supplied) 7. Recently the Apex Court in the case of M. Subramaniam vs. S. Janaki, Cr.A. No. 102 of 2011 decided on 20-3-2020, has held as under : – 6. The said ratio has been followed in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others, (2016) 6 SCC 277 , in which it is observed. “2. This Court has held in Sakiri Vasu vs. 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. 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). 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) 8. As such, this Court finds substantial force in the submissions advanced by the learned Government Advocate. The judgment of the Coordinate Bench is primarily based on the decision of the Apex Court in the case of Lalita Kumari vs. Govt. of U.P. and others, (2014) 2 SCC 1 , which is an authority for the position that the police officers have statutory duty to act upon the complaint in the manner delineated therein. However, the Division Bench of this Court in Dharmendra Sonkar vs. State of Madhya Pradesh and others, 2018(1) M.P.L.J. 716 has categorically held that in the 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 : – “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).” In the light of aforesaid settled position of law laid down by the Apex Court and the Division Benches of this Court, this Court sees no reason to take a different view. Such a question has been specifically answered in Aleque Padamsee and others (supra), Sakiri Vasu (supra) and Sudhir Bhaskar Rao Tambe (supra).” In the light of aforesaid settled position of law laid down by the Apex Court and the Division Benches of this Court, this Court sees no reason to take a different view. It is settled law of land under Article 141 of the Constitution of India that no writ under Article 226 of the Constitution of India can be issued for registration of the FIR, as is vividly clear from the quoted portion of the judgments of the Apex Court. Hence, the decision of Coordinate Bench in the case of Rajendra Singh (supra), is of no assistance to the petitioner, regard being had to the nature of relief sought for in the backdrop of aforesaid legal precedents. 9. 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 petition cannot be entertained and is, accordingly, dismissed. 10. However, the petitioner is always free to approach the competent authority under the Cr.P.C. for ventilation of his grievances.