Vikas Bahl, J
Prayer in the present petition is for issuance of direction to respondent Nos.2 and 3 for taking the action on the application of the petitioner against
respondent Nos.4 to 9 for having committed the alleged offence.
Learned counsel for the petitioner has submitted that the petitioner had submitted representation dated 23.07.2021 (Annexure P-4) to respondent No.2
in which prayer had been made that FIR be lodged against the private respondents. In the said application, it has been pointed out that the averments
have been made that materials/articles of the applicant have been forcibly thrown out from the rented shop by breaking open the lock. It has also been
submitted that there is stay order from the Civil Court in favour of the petitioner and the said order has been violated. It is further averred that
respondents are trying to take forcible possession of the shop.
Hon'ble the Supreme Court in case titled Sakiri Vasu Vs. State of U.P. and others, reported as 2008(2) SCC 409, has held as under:-
“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 Cr.P.C. 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 Cr.P.C. before the concerned police officers,
and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police
under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the
officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the
High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under
Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?
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 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.â€
A perusal of the abovesaid judgment would show that the Hon'ble Supreme Court has observed that in case, a person has a grievance that his FIR has
not been registered by the Police Station, then he is first required to approach the Superintendent of Police. If despite approaching the Superintendent
of Police, his grievance still persists, then he should approach the Magistrate under Section 156(3) of Cr.P.C. instead of rushing to the High Court by
way of filing a writ petition or a petition under Section 482 of Cr.P.C. It is further observed that the said person also has the remedy of filing a criminal
complaint under Section 200 of Cr.P.C. In para 27, it is stated that the High Court should discourage the practice of filing a writ petition or petition
under Section 482 of Cr.P.C. for the said cause.
Hon'ble the Supreme Court in latest judgment titled M. Subramaniam and another Vs. S. Janaki and another, Criminal Appeal No.102 of 2011, decided
on 20.03.2020, has held as under:-
“xxx xxx xxx
5. While it is not possible to accept the contention of the appellants on the question of locus standi, we are inclined to accept the contention that the
High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the
judgment of this Court in Sakiri Vasu v. State Of Uttar Pradesh And Others.
Xxx xxx xxx
6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others, 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. 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.â€
xxx xxx
8. 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 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.â€
A perusal of the said judgment would show that in the said case, High Court had entertained the petition filed under Section 482 of Cr.P.C. and
directions had been issued to register the FIR and after considering the earlier judgment passed in Sakiri Vasu (Supra), Hon'ble the Supreme Court
had set aside the order passed by the High Court observing that in case, such like petitions are entertained by the High Courts then the High Courts
will be flooded with such petitions and will not be able to do any other work except dealing with such petitions and further observed that the
complainant must avail his alternative remedy to approach the Magistrate concerned under Section 156(3) of Cr.P.C.
Hon'ble the Supreme Court has repeatedly held that the petition under Section 482 of Cr.P.C. should not be entertained for registration of the FIR as
there are several alternative remedies available to the petitioner.
Keeping in view the abovesaid facts and circumstances and the law as laid down by the Hon'ble Supreme Court in the abovesaid two judgments, this
Court feels that the present petition filed under Section 482 of Cr.P.C. is not maintainable and deserves to be dismissed on the said ground alone.
It is further observed that in case, the petitioner is aggrieved with any violation of the stay order in his favour then also, proper remedy for the
petitioner is not to file the present petition under Section 482 of Cr.P.C. The petitioner would have other alternate remedies in which both the petitioner
as well as the respondents would be given opportunity to lead evidence to show/prima facie prove that there is or there is not any violation of any stay
order. It is also relevant to state that the interim order which has been relied upon by the petitioner is only an ad interim order which is operative till
20.10.2020 and respondent No.4, who is stated to be the defendant in the said suit, has not been heard as yet.
Accordingly, the present petition is dismissed.
