Chattisgarh High Court
Balram Rathore vs State Of Chhattisgarh on 1 October, 2021
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 15
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 4-8-2021
Pronounced on 1-10-2021
WPCR No. 348 of 2020
1. Balram Rathore S/o Bhagwan Lal Rathore Aged About 52 Years
Occupation Chartered Accountant , R/o 402, 4th Floor, Sanskar
Heights, Gayatri Nagar, Kamhardih, Raipur Chhattisgarh., District :
Raipur, Chhattisgarh
2. Ruhit Rathore W/o Balram Rathore Aged About 41 Years R/o 402,
4th Floor, Sanskar Heights, Gayatri Nagar, Khamhardih, Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through Superintendent Of Police Raipur ,
District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
2. State Of Chhattisgarh. Through S.H.O. Police Station Khamhardih,
District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
3. Pinky Das D/o Late P.K. Das Aged About 41 Years R/o 403, 4th
Floor, Sanskar Heights , Gayatri Nagar, Khamhardih, Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
4. Pawan Kumar Verma S/o Late Rajendra Verma R/o D-13, Vip City,
Village Saddu, Police Station Mova, District Raipur Chhattisgarh.,
District : Raipur, Chhattisgarh
5. Piyush Kumar Verma S/o Late Rajendra Verma R/o D-13, Vip City,
Village Saddu, Police Station Mova, Raipur Chhattisgarh., District :
Raipur, Chhattisgarh
6. Dinesh Agarwal S/o Shri Kishan Lal Agrawal Proprietor Of M/s.
Dinesh Enterprises , R/o E-424, Near Goyal Nursing Home, Samta
Colony, Raipur Chhattisgarh., District : Raipur, Chhattisgarh
7. Deepa Das D/o Late P.K. Das R/o 403, 4th Floor, Sanskar Heights,
Gayatri Nagar, Khamhardih, Raipur Chhattisgarh., District : Raipur,
Chhattisgarh
---- Respondents
For Petitioners : Mr. Neeraj Choubey, Advocate. For State/respondents : Mr. Gurudev I Sharan, Govt. Adv. No. 1 and 2.
For respondents No.3 & 7 : Mr. Avinash K. Mishra, Advocate.
Page 2 of 15Hon'ble Shri Justice Narendra Kumar Vyas CAV ORDER
1. The petitioners have filed the present petition under Article 226 of the Constitution of India, challenging the inaction on the part of the respondents-authority and for quashment of FIR No.0018 of 2019 dated 3-10-2019 (Annexure P/4) registered at Police Station Khamhardih, Raipur for alleged commission of offence punishable under Section 420 read with Section 34 of IPC.
2. The brief facts, as projected by the petitioner, are that petitioner No.1 is a Chartered Accountant and he is the professional financial adviser whereas petitioner No.2 is the wife of petitioner and she is the proprietor of the Niti Marketing/BRM Minerals and Logistics. One Mr. Dinesh Agrawal, proprietor of M/s Dinesh Enterprises doing the business of chemical manufacturer (Sodium Silicate Powder) was introduced by the Credit Manager of the HDFC Bank and Mr. Pawan Verma and Piyush Verma both were introduced with the petitioners by Mr. Prafulla Chandra Nayak, Ex. Manager of Bank of Maharashtra, Durg Branch who is running business of of Internet Service Provider. Mr. Dinesh Agrawal, Pawan Verma and Piyush Verma were regularly visiting the office of the petitioner and got the faith due to which the petitioners have given their own amount of Rs.65,38,500/- for financial need in their business through various cheques and RTGs and they have promised to return the amount within three months.
3. It is contended by learned counsel for the petitioners that the complainant Pinki Das and her sister who are respondents No.3 and 7 respectively are neighbours and also familiar with the petitioners. Respondents No. 3 and 7 have given an amount of Rs.10,00,000/- to Pawan Kumar Verma through a cheque without the knowledge of the petitioners and respondents No. 3 and 7 have invested Rs.65,00,000/- in the business of Dinesh Agawal, Pawan Verma and Piyush Verma. The petitioners through their account transferred the amount of Rs.42,00,000/- as per the directions of the complainants. Even after almost a year of providing the money, Dinesh Agrawal Pawan Kumar Verma and Piyush Verma Page 3 of 15 have not returned the money despite requests made by respondents No. 3 and 7. Due to malafide intention on the part of these persons, the clients of the petitioners are adversely affected, therefore, the petitioners through their Advocate sent legal notice to Dinesh Agrawal, Pawan Kumar Verma and Piyush Verma. Despte the knowledge of the legal notice Dinesh Agrawal, Pawan Kumar Verma and Piyush Kumar Verma have not given any response to the legal notice nor any afford has been mdae by them to refund the invested amount of the petitioners, therefore, the petitioners have filed a written complaint on 9-11-2019, but no action has been taken on the said complaint.
4. Thereafter, respondent No.3 started creating pressure over the petitioner No.1 to refund the amount and in pursuance of pressure created by the complainants, petitioners have taken bank loan and gave Rs.27,15,000/- to the complainants which was accepted by them in front of respondent No.2. Station House Officer, Police Station Khamhardih, District Raipur. However, the authorities pressurized the petitioners to take all the responsibility of the accused persons for this purpose, the respondent No.2 had registered the Crime No. 18 of 2019 by registering the FIR under Section 420 /34 of IPC against the petitioners. Thereafter, they have started pressure upon the petitioners. Respondent No.2 without prior permission of the court had seized the residential house of the petitioners. Thus, respondent No.2 has acted as recovery of agent of the complainants and the petitioners have moved applications under Section 438 of Cr.P.C., for grant of anticipatory bail by filing MCRCA No. 2164 of 2019 and MCRCA No. 2171 of 2018 before this Hon'ble High Court which has allowed the bail applications vide its order dated 9-3-2020. Even after bail was granted, respondent No.2 has acted as recovery agent of the complainants by not opening the seal of the seized house of the petitioners, therefore, the petitioners have filed an application before the court of learned Sessions Judge who had directed respondent No.2 to open the house of the petitioners.
5. Being aggrieved with the illegal act of pressure tactics adopted by respondent No.2, petitioners filed an application before Inspector Page 4 of 15 General, Raipur, vide application dated 6-6-2020 and also before DGP vide application dated 9-6-2020 but no action has been taken by these authorities. Petitioner No.1 being Chartered Accountant and financial advisor has acted on his professional capacity and the complainant taking advantage of the same have roped the petitioners into criminal proceeding with the help of the respondent authority and no fair investigation has been carried out. In support of his arguments, learned counsel for the petitioners has relied upon the judgments of Hon'ble Supreme Court in Sidhartha Vashisht alias Manu Sharma vs State (NCT of Delhi), reported in 2010 (6) SCC 1, Kashmeri Devi v Delhi Administration , reported in 1988 Supp. SC 482, V.K. Sasikala Vs State, eported in (2012) 9 SCC 771, Pooja Pal vs. Union of India, reported in (2016) 3SCC 135, Nahar Singh Yadav vs. Union of India, reported in (2011) 1 SCC 307, Zahira Habibulla H. Sheikh vs. State of Gujrat (2004) 4 SCC 158 and Manohar Lal Sharma vs. Principal Secretary and others, reported in AIR 2014 SC 666.. He would further submit that the respondent authorities are violating the Article 20 of the Constitution of India by their act whereby personal liberty of the petitioners has been infringed, therefore, it is clear case of violation of fundamental rights of the petitioners to live with liberty. On the above factual matrix, petitioners prayed for following reliefs:
10.1 That, the Honorable High Court may kindly be pleased to issue writ(s) in the nature of mandamus by directing the respondent authority to conduct the free and fair investigation through any other authority, except the respondent No. 10.2 That, the Honorable High Court may kindly be pleased to quash the further proceeding initiated by the respondent no.2 in pursuant of the impugned FIR (ANNEXURE-P/4) and direct the respondent no.1 to take the necessary action against the responsible I.O. of the respondent no.2, who had misused the process of law and acted as a recovery agent of the private respondent.
10.3 That, the Honorable High Court may kindly be pleased to direct the respondent Page 5 of 15 authority to take cognizance upon the request of the petitioner and take the appropriate steps against the persons, those harassed and victimized the petitioners.
10.4 That, the Honorable High Court may kindly be please to direct the respondent police authority to take the cognizance against the respondent no.4 to 6 as per the complaint made by the petitioners.
10.5 That, the Hon'ble High Court may kindly be pleased to direct the respondent authority to return the amount which was given by the petitioners to the private respondent under the illegally processor of the respondent no.2 and further direct the respondent authority to take the action against the person who had made the false complaint for harassment of the petitioners.
10.6 The Honorable Court may be pleased to issue writ/ writs/ order/ orders/direction/ directions relief/ relief's which this Honorable High Court may think fit and proper in the facts and circumstances of the case.
6. On the other hand, learned counsel for the State as well as counsel for respondents No. 3 and 7 would submit that the petition filed by the petitioners is not maintainable, therefore, the same is liable to be dismissed.
7. From perusal of the averments made in the petition, it is crystal clear that the contention of the petitioners is that they have given money to Mr Dinesh Agrawal, Pawan Kumar Verma and Piyush Kumar Verma who in turn invested the money and did not return the amount. Before examining the legal submission made by learned counsel for the parties, it is necessary to go through the contents of the FIR and relevant portion thereof is reproduced below.
**Jhefr :fprk jkBkSj ds dgus ij geus Jh cyjke jkBkSj dks viuk lh0,0 j[kk rFkk Jhefr :fprk jkBkSj ds vkxzg ij fufr ekdsZfVax dks tks fd mudh dEiuh gS ftl ij le;≤ ij dqy :i;s 65]00]000@& :i;s Page 6 of 15 (64 yk[k psd }kjk rFkk 01 yk[k uxn) dk bUosLVesaV fd;k ftldk oks 1- 50 ds :i esa C;kt nsaxs rFkk cyjke th dk dguk ;s Fkk fd oks ftUgsa iSlk nsrs gS muls oks tehu dh vlyh dkxtkr] iksLVMsVsV psd j[krs gS blh fy, mu ij Hkjksls j[ks vkSj ge tc Hkh pkgsaxs oks iSlk okil dj nsaxs blh fy, dksbZ fy[kh i<h dh dksbZ t:jr ugha vkSj mlh esa ge /kks[kk [kk x;s ge ugh irk Fkk ges fdl tky esa Qlk;k tk jgk gS pwfd ;s bUosLVesaV ,d lky dk Fkk rFkk mu ij iwjk fo'okl Fkk blh fy, dksbZ dkxth fy[kk i<h ugh fd;k x;k rFkk ,d lky ckn 65-00 yk[k ij 1-50 izfr'kr dk C;kt tksMdj okil fd;k tkuk Fkk ijUrq /khjs /khjs iSls nsus ds ckr vkxs c<k;k tkus yxk rFkk 03 ekg ckn okil djus dh ckr dgus yxsA bl izdkj nks&rhu ckj 03 ekg iwjs iSls C;kt lfgr ykSVkus dh ckr dgh x;hA fiNys vDVwcj 2018 ls ;s ges iSlk vc nsaxs&rc nsaxs dj ?kqekus yxs rFkk ;s dguk 'kq: dj fn;k fd mUgksaus iSlk Jh iou oekZ] Jh fnus'k vxzoky ,oa vU; fdlh fdlh dks ns j[kk gS tks mUgsa okil ugh fey jgk gSA lgkuqHkwfriwoZd ge Hkh muds lkFk iSlk fey tkus ds fy, mUgsa vyx&vyx ;qfDr;ksa ls vyx vyx yksxksa ls feykdj iSlk fudkyus es enn djrs jgs ij dksbZ Bksl O;fDr uk lkeus vk;k uk dksbZ iksLV MsVsM psd (ih0Mh0lh0) ykdj fn;s] /khjs&/khjs Jhefr :fprk jkBkSj ,oa muds ifr Jh cyjke jkBkSj dk crkZo fcxMrk pyk x;k rFkk ,d fnu mu nksuks us dgk fd iSlk ugh nsaxs tks m[kMuk gS m[kkM yks blds ckn geus laLdkj lkslk;Vh ds yksxks dks voxr djk;k rks dqN vPNs yksxks us e/;Lrrk djkus dh dksf'k'k dhA**
8. The contention of the learned counsel for the petitioners is that they have given money to Mr Dinesh Agrawal, Pawan Kumar Verma and Piyush Kumar Verma but the Police have not conducted any investigation against them and there is no fair investigation. The submission made by learned counsel for the petitioners may be their defence, but it has to be enquired into trial of the case, therefore, the submission made by the petitioners that no fair investigation has been done by the Police authorities, cannot be examined at this stage because the petitioners' contention is that they have invested money through Dinesh Agrawal, Pawan Kumar Verma and Piyush Kumar Verma is subject matter of evidence for which law has been well settled that while deciding the petition under Section 482 of Cr.P.C or 226 of Constitution of India, the Page 7 of 15 disputes facts and evidence cannot be examined. Hon'ble Supreme Court in case of Priti Saraf & another Vs. State of NCT of Delhi & another1, held as under:-
"31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge- sheet in exercise of its inherent jurisdiction.
32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/ charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings."
9. So far as submission of learned counsel for the petitioners is that no fair investigation has been done properly and FIR has not been registered respondents No, 4 to 6 as accused, the petitioners have an alternate remedy available to them to file an application under Section 319 of the Cr.P.C., which provides that if there is a material against the persons who have not been included in FIR, they can also be roped as accused and proceedings can be initiated against 1 AIR 2021 Supreme Court 1531 Page 8 of 15 them. Section 319 of Cr.P.C is reproduced which reads as under:
"319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
10. During the course of trial if Magistrate finds that there is a material against Dinesh Agrawal, Pawan Kumar Verma and Piyush Kumar Verma, he can initiate the proceedings under Section 319 of Cr.P.C. Section 319 of Cr.P.C., has come up for consideration before Constitutional Bench of Hon'ble the Supreme Court in case of Hardeep Singh vs. State of Punjab and another, reported in 2014 (3) SCC 91 wherein it has been held as under:
"18. Coming to the stage at which power under Section 319 Cr.P.C. can be exercised, in Dharam Pal (Supra), this Court had noticed the conflict in the decisions of Kishun Singh & Ors v. State of Bihar, (1993) 2 SCC 16 and Ranjit Singh v. State of Punjab, AIR 1998 SC 3148, and referred the matter to the Constitution Bench. However, while referring the matter to a Constitution Bench, this Court affirmed the judgment in Kishun Singh (Supra) and doubted the correctness of the judgment in Ranjit Singh (Supra). In Ranjit Singh (Supra), this Court Page 9 of 15 observed that from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 Cr.P.C., that court can deal with only the accused referred to in Section 209 Cr.P.C. and there is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused, while in Kishun Singh (Supra), this Court came to the conclusion that even the Sessions Court has power under Section 193 Cr.P.C. to take cognizance of the offence and summon other persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record and need not wait till the stage of Section 319 Cr.P.C. is reached.
This Court in Dharam Pal (Supra) held that the effect of Ranjit Singh (Supra) would be that in less serious offences triable by a Magistrate, the said Court would have the power to proceed against those who are mentioned in Column 2 of the charge-sheet, if on the basis of material on record, the Magistrate disagrees with the conclusion reached by the police, but, as far as serious offences triable by the Court of Sessions are concerned, that court will have to wait till the stage of Section 319 Cr.P.C. is reached.
19. At the very outset, we may explain that the issue that was being considered by this Court in Dharam Pal (CB), was the exercise of such power at the stage of committal of a case and the court held that even if Section 319 Cr.P.C. could not be invoked at that stage, Section 193 Cr.P.C. could be invoked for the said purpose. We are not delving into the said issue which had been answered by the five-Judge Bench of this Court. However, we may clarify that the opening words of Section 193 Cr.P.C.
categorically recite that the power of the Court of Sessions to take cognizance would commence only after committal of the case by a magistrate. The said provision opens with a non-obstante clause "except as otherwise expressly provided by this code or by any other law for the time being in force". The Section therefore is clarified by the said opening words which clearly means that if there is any other provision under Cr.P.C., expressly making a provision for exercise of powers by the court to take cognizance, then the same would apply and the provisions of Section 193 Cr.P.C.
would not be applicable.
105. In Sohan Lal & Ors. v. State of Rajasthan, Page 10 of 15 (1990) 4 SCC 580, a two-Judge Bench of this Court held that once an accused has been discharged, the procedure for enquiry envisaged under Section 398 Cr.P.C. cannot be circumvented by prescribing to procedure under Section 319 Cr.P.C.
106. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., AIR 1983 SC 67, this Court held that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them under Section 319 Cr.P.C. and try them along with the other accused".
11. In Saeeeda Khatoon Arshi vs. State of Uttar Prdesh and another, reported in (2020) 2 SCC 323 Hon'ble Supreme Court has held in para 30 which is extracted as under:
"The order passed by the Additional Sessions Judge did not suffer from any infirmity. On the contrary, it was the High Court which interfered with the findings of the Trial Court on the specious ground that the trial was proceeding against Manoj Shrivastav for an offence under Section 306 and that the Trial Court had merely engaged in an exercise of exploring the possibility as to the cause of death. Section 319 empowers the court to proceed against a person appearing to be guilty of an offence where, in the course of any enquiry into or trial of, an offence, it appears from the evidence that any person, not being the accused, has committed any offence for which such person could be tried together with the accused. The exercise of the discretion by the Additional Sessions Judge to summon the second respondent fulfilled the requirements of Section 319 and was consistent with the parameters laid down in the decisions of this Court noted earlier. The fact that a protest petition had not been filed by the appellant when the report was submitted under Section 173 did not render the court powerless to exercise its powers under Section 319 on the basis of the evidence which had emerged during the course of the trial. The evidence of PW-1 and PW-2 which has been adverted to above meets the threshold required to Page 11 of 15 sustain an order for summoning under Section 319. The High Court has failed to analyses the basis on which the Additional Sessions Judge had proceeded to issue summons under Section 319 and in a brief set of observations covering a few sentences displaced a well-considered order of the Additional Sessions Judge in purported exercise of the jurisdiction under Section. The order passed by the High Court is unsustainable and would accordingly have to be set aside".
12. In view of the above, if such evidence is brought on record regarding involvement of these persons, the trial can be very well initiated against them and submission of learned counsel for the petitioners that no fair investigation has been done, cannot be considered at this stage, therefore, it is liable to be rejected.
13. Learned counsel for the petitioners have prayed that this court may kindly be pleased to direct the respondent authorities to take cognizance upon the request of the petitioners and take the appropriate steps against the persons those harassed and victimized the petitioners. The petitioners have also prayed in relief clause No 4 of the relief sought that this court may kindly be pleased to direct the respondent authorities to take the cognizance against the respondents No. 4 to 6 as per the complaint made by the petitioners. It means that the petitioners have filed the petition with a prayer for registration of FIR against these persons. It is well settled by Hon'ble the Supreme Court that the writ petition (cr) for registration of FIR is not maintainable. The Hon'ble Supreme Court time and again deprecated filing of writ petition before High Court under Article 226 of the Constitution of India and directed that the complainant should file complaint under Section 200 of the Cr.P.C or Section 156(3) of Cr.P.C., for issuing a direction to the police to investigate on the complaint for registration of offence. The petitioner has the alternate remedy of filing complaint under Section 200 of the Cr.P.C or Section 156(3) of Cr.P.C,. before Judicial Magistrate First Class, therefore, this writ petition is not maintainable before the High Court.
14. Since, the petitioner has remedy of filing the complaint under Section 156 (3) of the Cr.P.C. before the concerned Magistrate, the Page 12 of 15 present writ petition is not maintainable. The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of Uttar Pradesh & others2, has examined the issue in paragraphs 27 and 28, which are as under:-
"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 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 2000 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."
15. The judgment passed by 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 & another3. The Supreme Court after considering the same judgment has held at para 7 & 9 which are as under:-
"7. 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 2 (2008) 2 SCC 409 3 (2020) 16 SCC 728 Page 13 of 15 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). 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."
9. In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent Page 14 of 15 filing documents and papers with the police pursuant to the complaint dated 18-09-2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest."
16. 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, and in-turn 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 complaint discloses any criminal offence or not.
17. 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.
18. So far as relief clause No.5 is concerned the petitioners prayed that this court may kindly be pleased to direct the respondent authority to return the amount which was given by the petitioners to the private respondents under the illegality processor of the respondent No.2, the same is dependable on the evidence collected during trial of the case, therefore, at this juncture, the protection cannot be exceeded to and same is liable to be rejected. So far as the grievance of the petitioners for registration of FIR is concerned, they can avail the remedy of filing of a compliant under Section 156(3) or 200 of Cr.P.C., as held by Hon'ble Supreme Court in Sakrivasu (supra). Considering all the facts, I am of the opinion that the case laws cited by learned counsel for the petitioners are distinguishable from the facts of the present case because in the instant case no FIR has been registered against erring respondents and no investigation of final Page 15 of 15 report has been submitted by the Police authorities, therefore, at this stage, it cannot be said that investigation has not been conducted in fair manner. However, if evidence is brought on record during trial of the case against Dinesh Agrawal, Pawan Kumar Verma and Piyush Kumar Verma that they have committed the aforesaid offence they may be roped as accused by the learned Judicial Magistrate First Class while exercising his power under Section 319 of Cr.P.C., on the basis of material collected during trial of the case, in accordance with law. It is made clear that this court has not commented anything on the merits of the case or with regard to involvement of respondents No. 4 to 6. It is for the trial Court to consider the material evidence collected during trial and decide the case, in accordance with law.
19. Accordingly, the instant writ petition is dismissed with the aforesaid liberty granted in favour of the petitioners.
Sd/-
(Narendra Kumar Vyas) Judge Raju Sd/-