MP HC | Court not inclined to entertain writ petition in case remedy available before concerning Magistrate under S. 156 (3) of CrPC

Madhya Pradesh High Court: Vishal Mishra, J., dismissed a writ petition which was filed under Article 226 of Constitution of India seeking a writ or direction to the respondent authorities for conducting a fair and impartial investigation into the matter.

The Counsel for the petitioner, Mr R.K. Soni submitted that on complaint being made by the petitioner against the accused persons, offence had been registered under Sections 323, 294, 506 and 34 of Penal Code, 1860 but the police authorities were not conducting the investigation fairly and not arresting the accused till that date.

The Court relied on the Supreme Court judgments in the cases of Sudhir Bhaskar Rao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 which had considered the law laid down in another Supreme Court judgment of Sakri Vasu v. State of UP, (2008) 2 SCC 409 which said,

            “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.

  1. 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.
  2. 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.”

The Court while disposing of the appeal held that this Court was not inclined to entertain the petition as the remedy was available to the petitioner before concerning Magistrate under Section 156 (3) of CrPC.[Brajesh Sharma v. State of M.P., 2021 SCC OnLine MP 308, decided on 09-02-2021]


Suchita Shukla, Editorial Assistant has put this story together

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