Praveen Kumar Katela v. State of Chhattisgarh

Praveen Kumar Katela Aged about 37 years S/o Shri B.L. Katela R/o Civil Lines, Katela Bhawan Raipur (C.G.) Respondents:- ^ Notory / A^wca^e RAIPUR. 8 AUG 2009

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7. State of Chhattissarh Through :- Principal Secretory Ministry of Home Govt. of Chhattsigarh Secratariat D.K.S. Bhawan Raipur (C.G.) DirectorGeneraIofPoHce Chhattisgarh Police Head Quarters, Raipur (C.G.) Supdt. OfPolice , Raipur (C.G.) Station House In-charse Police Station Civil Lines, Raipur (C.G.) Smt. Kamla Devi Jain Aged about 58 years W/o Shri Parasmal Jain R/o Shankar Nagar Near Water Tank Raipur (C.G.) Smt. Mamta Devi Bhansali Aged about 38 years W/o Shri Mukesh Bhansali R/o Baijnathpara ward, Raipur (C.G.) Smt. Neeta Bhansali Aged about 43 years W/o Shri Rajkumar Bhansali Baijnathpara ward, Raipur (C.G.) PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTiSGH AT BSLASPUR (Hon. Wlr. Justice Prltinker Diwaker) Writ Petition (Cr) No. 4586 of 2009 PETiTSONER Praveen Kumar Katela. VERSUS RESPONDENTS State of Chhattlsgarh and others. Shri V.G. Tamaskar, counsel for the petitioner. Shri M.P.S. respondents/State. Dy. GA for Bhatia WRIT PETIT§ON UNDER ARTICLE 226 OF THE CONSTITUTaON OF INDIA ORDER (24.08.2009) By the present petition the petitioner has prayed for 1 to 4 for registration issuance of direction to respondents No. of FIR against respondents 5 to 7 on the basis of written complaint iodged by him on 14.3.2009. Et has also been prayed by the petitioner that the enquiry conducted by respondent No.4 may aiso be directed to be produced before this Court. A direction for investigation to be conducted by an record of expert agency or under the dlrect supervision of Director General of Police has also been sought for.

2. Facts of the case, in brief, are that the" petitioner had purchased certain land at Raipur which according to him has been fraudulently sold by respondent No. 5 to respondents No. 6and7.

3. Counsei for the petitioner submits that the entire sale transaction is nothing but a fraud piayed by the respondents •2>> -2-- No. 5 to 7 for that the petitioner made a compiaint to the concerned police station on 14.3.2009. !t is aiso submitted by the petitioner's counsei that when the Station House Office did not do anything, the mafter was reported to the Superintendent of Police and on the direction of the Superintendent of Police, the concerned Station Mouse Officer conducted an enquiry but In his report submitted to the Superintendent of Poiice he has stated that no offence as aiieged appears to have been committed. According to the petitioner, as the respondents 5 to 7 are infiuential persons, no FIR has been registered against them. In support of his contention, reilance has been piaced on the decisson ofthe Supreme Court in the matter ofOhanshyam v.

4. of M,P. and others reported in (2006) 10 SCC 473. On the other hand counsel for the respondents/State submits that the iaw in respect of registration of case where the poiice authorities have refused to do so is weil settied and as the petitioner has the remedy of fiiing a compiaint case before the competent Court, this petltion is iiable to be dismissed on the ground of availability of appropriate remedy.

5. Considering the modaiities in respect of inaction on the part of police officiais in regjstration of FIR, the Supreme Court in the matter of ASeque Padamsee a?id_otjiers,v._Uriion_of l|idla^jid_otjie^ reported in (2007) 6 SCC 171 , has held as under; "6. When the information is laid with the police but no action In that behalf is taken, the compiainant [can under Section 190 read with Section 200 ofthe Code iay] the compiaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire Into the compiaint as provided in Chapter XV of the Code. in case the Magistrate after recording evidence finds a prima Issuing process to the facie case, instead of ^e^: ..^ ^<J^s^ -^/ -3- accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report. !f he the compiaint does not disclose any finds that offence to take further action, he is empowered to dismiss the compiaint under Section 203 of !n case he finds that the complaint/evidence Code. recorded pnma facie discioses an offence, he is empowered to take cognizance of the offence and [coufd] issue process to the accused. "7. Whenever any information Is received by the the aiieged commission of offence police about which is a cognlzable one there is a duty to register the FSR. There can be no dlspute on that score. The only question is whether a wni can be issued to the poiice authorities to register the same. The basic question is as to what course is to be' adopted if the police does not do it. As was held in All Indsa hststute of Medicai Sciences case and reiterated in Gangadhar case, the remedy avaiiabie is as set out above by fiiing a compiaint before the Magistrate. Though it was faintly suggested that there was confiict in the views in All India instltute of Medlcal Sdences case, Gangadhar case, Hah Singh case, Msnu Kumah case and Ramesh Kumah case, we find that the view expressed in Ramesh Kumah case reiated to the action required to be taken by the police when any cognizable offence is brought to its notice. in Rsmesh Kumari c&se the basic issue did not relate to the methodoiogy to be adopted whlch !ndla Institute of was expressly dealt with sn Ai! Medicai Sciences case, Gangadfiar case, Minu Kuman case and Hah Slngh case. The view expressed in Ramesh Kumari case was relterated in Lallan Chaudhsry v. State of Bihsr. The course availab!e, when the police does not carry out the statutory requirements under Sections 154 was !ndia Institute of Medsca! directly in issue in All Sciences case, Gangadhar case, Hari Slngh case and Minu Kuman case. The correct positlon in iaw, therefore, is that the po!ice officiais ought to register the FIR whenever facts brought to their notice show that cognizabie offence has been made out. In case the police officials fai! to do so, the modaiities to be adopted are as set out in Section 190 read with Section 200 of in the It appears that the Code. y -A present case initially the case was tagged by order dated 24.2.2003 with W.P. (C) No. 530 of 2002 and WP (C) No. 221 of 2002. SubsequentJy, these writ petitions were deiinked from the aforesaid writ petitions. "8. The writ petitions are finaiiy disposed of with the fQlJowing directions: (1) (2) (3) (4) if any person is aggrieved by the inaction of the police officials in registering the FIR, the modaiities contained in Section 190 read with Section 200 of the Code are to be adopted and observed. is open to any person aggrieved by the !t inaction of the police officials to adopt the remedy aforesaid provisions. So far as non-grant of sanction aspect is concerned, the Government concerned to deai with the prayer. The Government concerned would do well deal with the mater within three months from the date of receipt of this order. We make it clear that we have not expressed any opinion on the merits of the case." Further in the matter of Sakirs Vasu v. State of Uttar Pradesh and others reported in (2008) 2 SCC 409 the Supreme Court has extensively held as under: "26. If a person has a grievance that his F!R has not been registered by the police station, his first remedy is to approach the Superintendent of PolEce under Section 154(3) CrPC or other police offlcer If despite referred to approaching the Superintendent of Police or the officer referred to in Section 36 his grievance stiii persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of writ petition or a petition under in Section 36 CrPC. ^6 -5- Section 482 CrPC. Whey then shouid writ petitions or Section 482 petitions be entertained when there are so many aiternative remedies?

27. powers As we have already observed above, very wide direct Magistrate registration of an F1R and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigatjon is done properiy (though he cannot investigate himseif). The High Court shouid discourage the practice of filing a writ petition or petition under Section 482 CrPC 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 poiice. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concemed, and if that is of no avaiE, under Section 156(3) CrPC before the Magistrate or by filing a criminai compiaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.

28. is true that alternative remedy is not an absolute bar to a writ petition, but it is equaily we!! settied that if there is an alternative remedy the Hjgh Court should not ordinarily interfere."

6. Thus, encasing the case in hand within the aforesaid legal spectrum renders the judgment reiied upon by the petitioner to be a helpless one. Consequentiy, the instant petition, being is hereby dismissed. deplete of merit worth interference, Petitioner would however have iiberty to take recourse availabie to him under the iaw. _- Sd/- Pritinker Diwaker Judge ^T