Chattisgarh High Court
Bhagwan Das vs State Of Chhattisgarh And Others on 17 January, 2011
HIGH COURT OF CHATTISGARH BILASPUR
WRIT PETITION NO 2166 OF 2006
Bhagwan Das
...Petitioners
Versus
State of Chhattisgarh and others
...Respondents
! Shri TK Tiwari counsel for the petitioner ^ Shri VVS Murthy Deputy Advocate General along with Shri Ajay Dwivedi Deputy Government Advocate for the State respondents CORAM: Honble Shri Manindra Mohan Shrivastava J Dated: 17/01/2011 : Judgement ORAL ORDER WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSITUTION OF INDIA (Passed on 17th January, 2011) By this petition, the petitioner has sought issuance of direction to respondents to perform their duty by registering FIR in the matter of allegation of murder of petitioner's son-Jai Kumar and for proper investigation. The petitioner has further prayed for direction to respondents to depute the Senior Police Officer to investigate the matter. Further prayer has been made that respondents No.2 may be directed to initiate inquiry against respondent No.3, as respondent No.3 did not perform his duty of registering offence on the report of the petitioner.
2. The case of the petitioner is that on 12/3/06, some persons of the area named Yogesh @ Yogi and Keshav Sahu misbehaved and abused his son-Jai Kumar followed by assault on the next day, i.e. on 13/3/06. When his son Jai Kumar reported the matter to respondent No.3, respondent No.3 submitted a report under Section 151 CrPC before the Magistrate. After arrest, Jai Kumar was released on giving personal bond whereas the other party Yogesh @ Yogi was released on the next day. It is said that Gappu Tiwari, Mahesh Markande, Suresh, Sunil Francis and Satish were friends of Yogesh and they all are hard- core criminals and were arrested in murder case and number of criminal cases are pending against them. Further case of the petitioner is that on 15/3/06, deceased-Jai Kumar was called by Gappu Tiwari, Mahesh Markande, Suresh, Sunil and Satish from his house and he was taken by them to railway platform, W.R.S. Raipur where Jai Kumar was assaulted and when he became unconscious, the petitioner was intimated and thereafter, Jai Kumar was admitted in the hospital, where he died. Further case is that merg intimation was recorded by the police of Police Station-Khamtarai that petitioner's son-Jai Kumar met train accident. Post Mortem was conducted and the Post Mortem report shows that cause of death is due to shock and hemorrhage as a result of multiple injury. According to the petitioner, a written complaint was submitted to respondent No.2 and 3. It is the case of the petitioner that even though he had submitted a written complaint alleging that his son was murdered which clearly shows a cognizable offence, no offence was registered. Learned counsel for the petitioner argued that the petitioner is the father of the deceased-Jai Kumar who submitted complaint in writing to the Station House Officer of Police Station- Khamtarai and when no action was taken, he made representations to various authorities which included Superintendent of Police also. Learned counsel argued that once report discloses commission of cognizable offence, the concerned police officer was under statutory obligation to register criminal case and investigate the matter and then submit the result of investigation in the form of report under Section 173 CrPC before the jurisdictional Magistrate. Learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of Ramesh Kumari v. State (N.C.T. of Delhi) and others reported in AIR 2006 Supreme Court 1322 and Lalita Kumari v. Government of Uttar Pradesh and others, 2008 (7) SCC 164. He also relied upon the judgment in the case of Mohindro v. State of Punjab and others, 2001 (II) SLT 666.
3. On the other hand, learned State counsel submitted that as the deceased had died in suspicious circumstances, the merg intimation was recorded under Section 174 CrPC on the information of one Amarjeet, on 16/3/06. Thereafter, post mortem of the body was performed, preliminary enquiry was conducted wherein statements of number of persons were recorded but no FIR was registered. It is further submitted that FIR was not registered because the petitioner has not approached respondent No.4, Station House Officer, GRP, W.P.S. Colony, Raipur. Learned counsel for the State next contended that the matter was inquired into and it has been found that it was a case of train accident. Therefore, the City Superintendent of Police, Urla, Raipur in his report dated 6/6/06 also reported that no case for commission of offence of murder is made out.
Learned counsel for the respondent also submitted that if the petitioner is not satisfied with the action of police authority, he has alternative remedy of submitting application under Section 156 (3) of CrPC before jurisdictional Magistrate as held by the Supreme Court in the case of Sakiri Vasu v. State of U.P., 2008 AIR SCW 309 or to file complaint as held in the case of Lalita Kumari (Supra). He has also relied upon the judgment of this Court in the case of Mohd. Anish Memon v. State of Chhattisgarh and others, 2009 (1) CGLJ 315 wherein under similar facts and situation, the petition was disposed off giving liberty to the petitioner to approach Superintendent of Police and then to the the Court of Judicial Magistrate under the provisions of Section 190 read with Section 200 to 203 or other provisions of the Criminal Procedure Code.
4. From the averments made in the petition and the report which has been lodged by the petitioner in the police station-Khamtarai (Annexure 3-A, filed along with the application for taking documents on record), the petitioner has made allegations and has stated that his son, Jai Kumar was murdered under a conspiracy which happened after release of Yogesh @ Yogi. The complaint in writing gives the background in which the offence is alleged to have been committed. It appears that the police recorded merg intimation and treated it to be a case of train accident. The Sub-Divisional Magistrate who inquired into the matter, recorded statements of various persons and submitted report before the D.I.G. of police and Senior Superintendent of Police, Raipur reported that the allegations relating to commission of offence is not substantiated. The respondents have also placed on record a memo dated 25/2/09 of the Sub- Divisional Officer, Raipur addressed to the Station House Officer, Police Station-Khamtarai, in which, it has been stated that as the matter is pending in the Court, it would not be proper to close the merg diary. In the case of Ramesh Kumari (Supra) relying upon the decision in the case of State of Haryana and others v. Bhajan Lal and others, 1992 Supplementary (1) SCC 335, it has been reiterated that the point of law has been set at rest and that the provisions of Section 154 of the CrPC is mandatory and that the concerned officer is duty bound to register the case on the basis of an information disclosing cognizable offence. However, in case, on a report made, no action is taken by the police officers then, the course of action, which is required to be taken, has been more elaborately stated by the Supreme Court in the case of Sakiri Vasu (Supra). In the aforesaid judgment, it has been stated -
"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), CrPC 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) CrPC 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."
5. Further, Supreme Court has laid down the guidelines with regard to the course of action to be adopted, particularly regarding entertaining such grievance by this Court as below :-
"25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and / or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482, CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154 (3) and Section 36, CrPC before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156 (3)."
6. In the case of Lalita Kumari (Supra) also, the Supreme Court has held -
"6. In view of the above, we feel that it is high time to give directions to the Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of FIRs immediately and copies thereof are not made over to the complainants, they may move the Magistrates concerned by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the FIRs to the complainants, within twenty-four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were the subject-matter of theft or dacoity. In case FIRs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the Magistrate concerned would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the disciplinary authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same."
7. This Court has also considered this aspect and relying upon the judgment of the Supreme Court in the case of Sakiri Vasu (Supra), the petition was disposed off giving liberty to approach the Superintendent of Police and thereafter the Court of Judicial Magistrate under the provisions of CrPC. The legal position therefore which emerges is that in case, no action is taken by the police officers on the report made, the petitioner is required to take steps as laid down by the Supreme Court in the judgment of Sakiri Vasu (Supra) and Lalita Kumari (Supra). Though existence of alternative remedy is not a bar and the Supreme Court has held in Sakiri Vasu's case that when there is alternative remedy, the High Court should not ordinarily interfere, in the present case, I do not find any extra ordinary circumstances, so as to warrant interference by this Court, notwithstanding existence of remedy available to the petitioner as stated in paragraph 11 of the judgment of the Supreme Court in the case of Sakiri Vasu (Supra).
8. Therefore, in the result, instead of this Court itself issuing any direction in the matter, liberty is reserved to the petitioner to submit application under Section 156 (3) or to make complaint before the concerned jurisdictional Magistrate. Without commenting on the merits of the case, this Court would like to emphasize that where serious allegations relating to murder are made, the police machinery is expected to deal the matter with utmost seriousness and sincerity. Even without registering offence, the matter has been closed by the police machinery. However, as the petitioner has been given liberty to approach the concerned jurisdictional Magistrate, all these aspects of the matter shall be looked into by the Magistrate while entertaining the petition under Section 156 (3) or complaint made by the petitioner.
9. With the aforesaid observations, the petition is finally disposed off.
JUDGE