Madhya Pradesh High CourtRam Kishan Patel vs The State Of Madhya Pradesh on 26 September, 2022Author: Sushrut Arvind DharmadhikariW.P. No.14790/2022\n                              1\n\n\n        IN THE HIGH COURT OF MADHYA PRADESH\n                     AT JABALPUR\n                            BEFORE\n     HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI\n                ON THE 26th OF SEPTEMBER, 2022\n            WRIT PETITION No. 14790 of 2022\n        BETWEEN:-\n        RAM KISHAN PATEL S/O LATE SHRI\n        ISHWARDAYAL PATEL, AGED ABOUT\n        70 YEARS, OCCUPATION: FARMER\n        RESIDENCE OSHO ASHRAM VILLAGE\n        GOTEGAON    TEHSIL   GOTEGAON\n        DISTRICT   NARSINGHPUR    (M.P.)\n        (MADHYA PRADESH)\n\n\n\n                                            .....PETITIONER\n        (BY MS. SANTOSH BANSAL- ADVOCATE)\n        AND\n1.      THE STATE OF MADHYA PRADESH\n        THROUGH ITS PRINCIPAL SECRETARY\n        HOME     DEPARTMENT     VALLABH\n        BHAWAN BHOPAL (M.P.) (MADHYA\n        PRADESH)\n\n\n\n2.      DIRECTOR GENERAL OF POLICE,\n        POLICE HEADQUARTERS, BHOPAL\n        DISTRICT BHOPAL M.P. (MADHYA\n        PRADESH)\n\n\n\n3.      SUPERINTENDANT     OF    POLICE,\n        JABALPUR DISTRICT JABALPUR (M.P.)\n        (MADHYA PRADESH)\n\n\n\n4.      POLICE    STATION    MADHOTAL,\n        THROUGH    ITS  STATION  HOUSE\n        OFFICER DISTRICT JABALPUR (M.P.)\n                                          W.P. No.14790/2022\n                          2\n\n\n      (MADHYA PRADESH)\n\n\n\n5.    OM PRAKASH MISHRA S/O LATE SHRI\n      VISHWANATH DATT MISHRA, AGED\n      ABOUT 50 YEARS, R/O SHAHTRI\n      CHOWK, DISTRICT SATNA (MADHYA\n      PRADESH)\n\n\n\n6.    RAVI PRAKASH MISHRA S/O LATE\n      SHRI VISHWANATH DATT MISHRA,\n      AGED ABOUT 50 YEARS, R/O SHAHTRI\n      CHOWK, DISTRICT SATNA (MADHYA\n      PRADESH)\n\n\n\n7.    SMT. UMADEVI MISHRA W/O LATE\n      SHRI VISHWANATH DATT MISHRA,\n      AGED ABOUT 52 YEARS, R/O SHAHTRI\n      CHOWK, DISTRICT SATNA (MADHYA\n      PRADESH)\n\n\n\n8.    JAY RAKASH MISHRA S/O LATE SHRI\n      VISHWANATH DATT MISHRA, AGED\n      ABOUT 52 YEARS, R/O SHAHTRI\n      CHOWK, DISTRICT SATNA (MADHYA\n      PRADESH)\n\n\n\n9.    OM PRAKASH MISHRA S/O LATE SHRI\n      VISHWANATH DATT MISHRA, AGED\n      ABOUT 50 YEARS, R/O 252, AGHORI\n      BABA, TRIMURTI NAGAR (MADHYA\n      PRADESH)\n\n\n\n10.   M. GOPAL REDDY, CHAIRMAN OF\n      REVENUE BOARD GWALIOR (MADHYA\n                                            W.P. No.14790/2022\n                            3\n\n\n      PRADESH)\n\n\n\n11.   YOGESH PATEL S/O LATE SHRI\n      HARVANSH PATEL R/O VILLAGE\n      GUDGAWA,    TEHSIL PANAGAR\n      (MADHYA PRADESH)\n\n\n\n12.   PRADEEP PATEL S/O LATE SHRI TRAM\n      KUMAR PATEL R/O VILLAGE MURRAI,\n      TEHSIL PATAN (MADHYA PRADESH)\n\n\n\n13.   MESARS       SUNRISE     BUILDERS,\n      THROUGH     ITS    PARTNER   ROHIT\n      TIWARI S/O LATE SHRI PRAMOD\n      TIWARI R/O 1601, NEAR RADHA TIWARI\n      ,KRISHNA MANDIR, SHAHTRI NAGAR,\n      GARHA (MADHYA PRADESH)\n\n\n\n14.   MESARS     SUNRISE     BUILDERS\n      THROUGH ITS PARTNER AMBER\n      DUBEY S/O LATE SUBODH KUMAR\n      DUBEY R/O A-6, KACHHNAR CITY,\n      MODEL    TOWN,   VIJAY   NAGAR\n      (MADHYA PRADESH)\n\n\n\n15.   MESARS      REGAL       ASSOCIATES\n      THROUGH ITS PARTNER PANKAJ\n      TIWARI S/O LATE PRAMOD PANKAJ\n      TIWARI R/O 1601, NEAR RADHA TIWARI\n      ,KRISHNA MANDIR, SHAHTRI NAGAR,\n      GARHA (MADHYA PRADESH)\n\n\n\n16.   MANOHAR GUPTA S/O CHAKODILAL\n      GUPTA R/O OM NAGAR, CHITRANJAN\n                                                               W.P. No.14790/2022\n                                       4\n\n\n        DAS WARD (MADHYA PRADESH)\n\n\n\n                                                          .....RESPONDENTS\n\n        ( SHRI PRAVEEN NAMDEO- GOVERNMENT ADVOCATE\n        FOR THE RESPONDENTS/STATE)\n        (SHRI BRIAN DA'SILVA- SENIOR ADVOCATE WITH SHRI\n        ABHIJEET AWASTHI- ADVOCATE FOR THE CAVEATOR)\n\n       This petition coming on for admission this day, the court\n\npassed the following:\n\n                                   ORDERThe present petition, underArticle 226of the Constitution of\n\nIndia has been preferred by the petitioner seeking the following\n\nreliefs:-"(i)    Hon'ble Court may kindly be pleased to\n                        direct to respondent no.(1) to (4) call the\n                        entire record regarding Annexure P-1 to\n                        Annexure P-12 for perusal of this\n                        Hon'ble court.(ii)    Hon'ble Court kindly be pleased to give\n                        the direction to respondent no.1 to 4 to\n                        register an offence u/s 420, 467, 468,\n                        469, 471, 120B ofIPCand take\n                        appropriate steps against the respondent\n                        no.5 to 16 in the interest of justice.(iii)   Any other reliefs, which deems fit and\n                        proper be also awarded in favour of the\n                        petitioner."2.     Learned counsel for the petitioner submits that the petitioner is\n\naggrieved by inaction of the respondents No.1 to 4 in not registering\n\nthe FIR against respondents No.5 to 16. In this regard, petitioner has\n                                                                     W.P. No.14790/20225preferred a representation (Annexure P/12) for registering the FIR\n\nagainst respondents No.5 to 16 but no action whatsoever has been\n\ntaken thereupon. As such, the instant petition has been filed.3.       Per     contra      learned      Government          Advocate        for    the\n\nrespondents/State as well as learned senior counsel appearing for the\n\ncaveator contend that the relief prayed in this petition cannot be\n\ngranted to the petitioner in view of the fact that petitioner is having an\n\nalternative efficacious remedy of filing complaint before the\n\nMagistrate undersection 156(3)of the Cr.P.C. He further submits that\n\nit is well settled that disputed questions of fact cannot be looked into\n\nby this Court inArticle 226of the Constitution of India. As such, the\n\npresent petition is liable to dismissed at the threshold.4.       Heard the learned counsel for the parties.5.       In the case ofSakiri Vasu vs State Of U.P. And Others((2008)2 SCC 409) has held as under:-11. In this connection we would like to state that if a person has a\n         grievance that the police station is not registering his FIR underSection 154Cr.P.C., then he can approach the Superintendent of\n         Police underSection 154(3)Cr.P.C. by an application in writing.Even if that does not yield any satisfactory result in the sense that\n         either the FIR is still not registered, or that even after registering it\n         no proper investigation is held, it is open to the aggrieved person\n         to file an application underSection 156(3)Cr.P.C. before the\n         learned Magistrate concerned. If such an application underSection\n         156(3) is filed before the Magistrate, the Magistrate can direct the\n         FIR to be registered and also can direct a proper investigation to be\n         made, in a case where, according to the aggrieved person, no\n         proper investigation was made. The Magistrate can also under the\n                                                          W.P. No.14790/20226same provision monitor the investigation to ensure a proper\ninvestigation.13. The same view was taken by this Court inDilawar Singh vs.\nState of Delhi JT2007 (10) SC 585 (vide para 17). We would\nfurther clarify that even if an FIR has been registered and even if\nthe police has made the investigation, or is actually making the\ninvestigation, which the aggrieved person feels is not proper, such\na person can approach the Magistrate underSection 156(3)Cr.P.C., and if the Magistrate is satisfied he can order a proper\ninvestigation and take other suitable steps and pass such order\norders as he thinks necessary for ensuring a proper investigation.\nAll these powers a Magistrate enjoys under Section 156(3) Cr.P.C.14.Section 156(3) states:"Any Magistrate empowered underSection 190may\n           order such an investigation as abovementioned."The words as abovementioned obviously refer toSection 156(1), which contemplates investigation by the officer in charge\n     of the Police Station.15.Section 156(3)provides for a check by the Magistrate on\n     the police performing its duties under Chapter XIICr.P.C. In\n     cases where the Magistrate finds that the police has not done\n     its duty of investigating the case at all, or has not done it\n     satisfactorily, he can issue a direction to the police to do the\n     investigation properly, and can monitor the same.16. The power in the Magistrate to order further investigation\n     underSection 156(3)is an independent power, and does not\n     affect the power of the investigating officer to further\n     investigate the case even after submission of his report videSection 173(8). Hence the Magistrate can order re-opening of\n     the investigation even after the police submits the final report,\n     videState of Bihar vs. A.C. SaldannaAIR 1980 SC 326 (para19).17. In our opinionSection 156(3)Cr.P.C. is wide enough to\n     include all such powers in a Magistrate which are necessary\n     for ensuring a proper investigation, and it includes the power\n     to order registration of an F.I.R. and of ordering a proper\n     investigation if the Magistrate is satisfied that a proper\n     investigation has not been done, or is not being done by the\n     police.Section 156(3)Cr.P.C., though briefly worded, in our\n     opinion, is very wide and it will include all such incidental\n     powers as are necessary for ensuring a proper investigation.24. In view of the abovementioned legal position, we are of\n     the view that althoughSection 156(3)is verybriefly worded,\n     there is an implied power in the Magistrate underSection\n     156(3)Cr.P.C. to order registration of a criminal offence and\n     /or to direct the officer in charge of the concerned police\n                                                               W.P. No.14790/20227station to hold a proper investigation and take all such\n          necessary steps that may be necessary for ensuring a proper\n          investigation including monitoring the same. Even though\n          these powers have not been expressly mentioned inSection\n          156(3)Cr.P.C., we are of the opinion that they are implied in\n          the above provision.27. As we have already observed above, the Magistrate has\n          very wide powers to direct registration of an FIR and to\n          ensure a proper investigation, and for this purpose he can\n          monitor the investigation to ensure that the investigation is\n          done properly (though he cannot investigate himself). The\n          High Court should discourage the practice of filing a writ\n          petition or petition underSection 482Cr.P.C. simply because\n          a person has a grievance that his FIR has not been registered\n          by the police, or after being registered, proper investigation\n          has not been done by the police. For this grievance, the\n          remedy lies under Sections 36 and 154(3) before the\n          concerned police officers, and if that is of no avail, under\n          Section 156(3) Cr.P.C. before the Magistrate or by filing a\n          criminal complaint under Section 200 Cr.P.C. and not by\n          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\n          writ petition, but it is equally well settled that if there is an\n          alternative remedy the High Court should not ordinarily\n          interfere.(Emphasis supplied)6.    Recently the Apex Court in the case of M.Subramaniam Vs.\n\nS. Janaki (Cr.A. No.102 of 2011) decided on 20/3/2020, has held as\n\nunder:-6. The said ratio has been followed in Sudhir Bhaskarrao\n          Tambe v. Hent Dhage mant Yashwaand Others ((2016)6 SCC277), in which it is observed."2. This Court has held inSakiri Vasu v. State of U.P., that if\n          a person has a grievance that his FIR has not been registered\n          by the police, or having been registered, proper investigation\n          is not being done, then the remedy of the aggrieved person is\n          not to go to the High Court underArticle 226of the\n          Constitution of India, but to approach the Magistrate\n          concerned underSection 156(3)CrPC. If such an application\n          underSection 156(3)CrPC is made and the Magistrate is,\n          prima facie, satisfied, he can direct the FIR to be registered,\n          or if it has already been registered, he can direct proper\n          investigation to be done which includes in his discretion, if he\n                                                              W.P. No.14790/20228deems it necessary, recommending change of the\n          investigating officer, so that a proper investigation is done in\n          the matter. We have said this in Sakiri Vasu case because\n          what we have found in this country is that the High Courts\n          have been flooded with writ petitions praying for registration\n          of the first information report or praying for a proper\n          investigation.3. We are of the opinion that if the High Courts entertain such\n          writ petitions, then they will be flooded with such writ\n          petitions and will not be able to do any other work except\n          dealing with such writ petitions. Hence, we have held that the\n          complainant must avail of his alternate remedy to approach\n          the Magistrate concerned underSection 156(3)CrPC and if\n          he does so, the Magistrate will ensure, if prima facie he is\n          satisfied, registration of the first information report and also\n          ensure a proper investigation in the matter, and he can also\n          monitor the investigation.4. In view of the settled position in Sakiri Vasu case, the\n          impugned judgment of the High Court cannot be sustained\n          and is hereby set aside. The Magistrate concerned is directed\n          to ensure proper investigation into the alleged offence underSection 156(3)CrPC and if he deems it necessary, he can also\n          recommend to the SSP/SP concerned a change of the\n          investigating officer, so that a proper investigation is done.\n          The Magistrate can also monitor the investigation, though he\n          cannot himself investigate (as investigation is the job of the\n          police). Parties may produce any material they wish before\n          the Magistrate concerned. The learned Magistrate shall be\n          uninfluenced by any observation in the impugned order of the\n          High Court."(Emphasis supplied)7.    In congruence with the aforesaid well settled position, a\n\nDivision Bench of this Court has taken a similar view in the case of\n\nShweta Bhadoriya Vs. State of M.P. & others (2017 (1) MPLJ\n\n(Cri) 338)).8.    In view of the legal conspectus on the point in issue, as cited\n\nabove, since the petitioner has rushed to this Court without availing\n\nthe alternative efficacious remedy as envisaged under theCr.P.C.,\n                                                       W.P. No.14790/20229this writ petition cannot be entertained and is, accordingly,\n\n dismissed.9.       However, if the petitioner approaches the Magistrate concerned\n\nunder the provisionsof the Codeof Criminal Procedure, the\n\nMagistrate concerned shall proceed in accordance with law including\n\nthe precedents enumerated hereinabove.(S. A. DHARMADHIKARI)\n                                                JUDGE\nashish\nDigitally signed by ASHISH\nKUMAR LILHARE\nDate: 2022.09.26 17:40:05\n+05'30'