Madhya Pradesh High Court
Virendra Singh vs The State Of Madhya Pradesh on 9 May, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 9 th OF MAY, 2023
WRIT PETITION No. 10245 of 2023
BETWEEN:-
VIRENDRA SINGH S/O LATE SHRI MAHESH SINGH,
AGED ABOUT 48 YEARS, OCCUPATION: BUS OPERATOR
R/O DEVELOPMENT AREA GHAROULA MOHALLA
SHAHDOL DISTT. SHAHDOL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI BRAJESH KUMAR DUBEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE SECRETARY DEPARTMENT OF TRANSPORT
MANTRALAYA VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. THE TRANSPORT COMMISSIONER OF M.P.
OFFICE AT SIROL HURRA HILLS, MURAR,
GWALIOR, DISTRICT GWALIOR (MADHYA
PRADESH)
3. THE REGIONAL TRANSPORT OFFICER, SHAHDOL
DISTRICT SHAHDOL (MADHYA PRADESH)
4. THE STATION HOUSE OFFICER P.S. SOHAGPUR
DISTRICT SHAHDOL (MADHYA PRADESH)
5. THE SUPERINTENDENT OF POLICE, SHAHDOL
DISTRICT SHAHDOL (MADHYA PRADESH)
6. SMT. KALPANA MISHRA W/O SHRI MRIGENDRA
KUMAR MISHRA, AGED ABOUT 50 YEARS,
OCCUPATION: BUS OPERATOR R/O WARD NO.7,
MARTANDGANJ, BEOHARI, DISTRICT SHAHDOL
(MADHYA PRADESH)
7. VINAY SINGH @ MONU S/O SANTOSH SINGH
OCCUPATION: POWER OF ATTORNEY HOLDER OF
Signature Not Verified
SMT. KALPANA MISHRA R/O BUS STAND
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 5/11/2023
1:11:21 PM
2
SHAHDOL, DISTRICT SHAHDOL (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT STATE BY SHRI PRADEEP SINGH - GOVT. ADVOCATE)
(RESPONDENT NOS 6 AND 7 BY SHRI ASHISH RAWAT -ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed this petition for issuance of a writ in the nature of mandamus commanding respondent No. 2 to consider the complaint made by the petitioner which is contained in Annexure P-10 and initiate criminal proceedings against the respondent Nos. 6 and 7.
2.Counsel for the petitioner submits that the respondent No. 2 has issued an order regarding registration of a vehicle which is owned by respondent No.
6. The said vehicle was intended to be used as School Bus, but the R.T.O, Rewa has issued temporary registration as Passenger Bus. The counsel contends that pursuant to a tender issued by South Eastern Coal Fields, which is contained in Annexure P-6, the petitioner, with an intention to participate in the tender made an effort to change the classification of the vehicle to be used for Educational purposes. It is contended by the counsel that the tender of respondent No. 6 has been accepted and work order has also been issued in favour of respondent No. 6 but, the evasion from payment of due taxes is apparent, therefore, the present petitioner has made complaint highlighting the forgery pertaining to the registration certificate. Accordingly submits that the respondent No. 2 be directed to take into consideration the complaint made by the petitioner.
3. Per contra, Shri Ashish Rawat, who has entered appearance on Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/11/2023 1:11:21 PM 3 advance notice submits that the present petition filed by the petitioner is not maintainable, inasmuch as, there is failure on the part of the petitioner to establish his locus. It is contended by the counsel for respondent Nos. 6 and 7 that in absence of locus the petitioner is precluded from seeking reliefs which are claimed in paragraph 7 of the petition. Counsel for the respondent has placed reliance on the decision of this Court dated 6.1.2021 in W.P. No. 18387/2020 - M.P. Karmachari Congress v. State of M.P. and others and it is submitted that even a complainant cannot be a party to the lis.
4. Having heard the submissions advanced on behalf of the parties, if the petitioner is aggrieved as regards inaction on the part of the official respondents to take cognizance of his complaint as contained in Annexure P-10, he is at liberty to approach the trial Court by way of an application under Section 156(3) of Cr.P.C. For this, reference may be made to the decision of the Apex Court in Sakiri Vasu vs State Of U.P. And Others ((2008)2 SCC 409) wherein it is held:
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). 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 Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/11/2023 1:11:21 PM 4 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 o f 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. 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 Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/11/2023 1:11:21 PM 5 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)
5. Recently the Apex Court in the case of M.Subramaniam Vs. S. Janaki (Cr.A. No.102 of 2011) decided on 20/3/2020 in paragraph 6 has held as under:-
6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hent Dhage mant Yashwaand Others ((2016)6 SCC 277), 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 . W e 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 Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/11/2023 1:11:21 PM 6 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)
6. 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 Vs. State of M.P. & others (2017 (1) MPLJ (Cri) 338).
7 . The Division Bench in the case of Shweta Bhadauria vs. State of M.P. & Ors. in W.A.No.246/2016 dated 20.12.2016 has considered the decision of Apex Court in the case of Lalita Kumari vs. Government of U.P. & Ors. reported in (2014) 2 SCC 1 and accordingly, has held in paragraph 6 as under:-
"6. Before parting the conclusion arrived at based on the above discussion and analysis is delineated below for ready reference and convenience :-
(1) Writ of mandamus to compel the police to perform its statutory duty u/s 154 Cr.P.C. can be denied to the informant/victim for non-availing of alternative remedy u/Ss.
154(3), 156(3) 190 and 200 Cr.P.C., unless the four exceptions enumerated in decision of Apex Court in the case o f Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1, come to rescue of the informant/victim.
(2) The verdict of Apex Court in the case of Lalita Kumar vs. Government of U.P. & Ors. reported in (2014) 2 SCC 1 does not pertain to issue of entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 1 5 4 Cr.P.C. without availing alternative remedy under Sections 154(3), 156(3), 190 and 200 Cr.P.C.
(3) Subject to (1) supra the informant/victim after furnishing f ir s t information regarding cognizable offence does not become functus officio for seeking writ of mandamus for Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/11/2023 1:11:21 PM 7 compelling the police authorities to perform their statutory duty under Section 154 Cr.P.C. in case the FIR is not lodged. (4) Subject to (1) supra the proposed accused against whom the first information of commission of cognizable offence is made, is not a necessary party to be impleaded in a petition under Article 226 of the Constitution of India seeking issuance of writ of mandamus to compel the police to perform their statutory duty under Section 154 Cr.P.C."
8. 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 Section 156(3) of Cr.P.C., this writ petition cannot be entertained and is, accordingly, dismissed.
9. 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.
(MANINDER S. BHATTI) JUDGE vivek Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 5/11/2023 1:11:21 PM