Allahabad High Court
Rakesh Kumar vs State Of U P And 9 Others on 2 February, 2021
Bench: Pritinker Diwaker, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 946 of 2021
Petitioner :- Rakesh Kumar
Respondent :- State Of U P And 9 Others
Counsel for Petitioner :- Ravindra Pal Singh Kashyap,Akshay Kumar Shukla
Counsel for Respondent :- G.A.
Hon'ble Pritinker Diwaker,J.
Hon'ble Deepak Verma,J.
Heard Sri Ravindra Pal Singh Kashyap, learned counsel for the petitioner and Sri Amit Sinha, learned A.G.A. for the State respondents.
This petition has been filed, seeking a writ of mandamus commanding the respondent concerned to conduct fair and impartial investigation in pursuance of FIR dated 20.08.2020 in respect of Crime No.612 of 2020 for the offence under Sections 406, 420, 467, 468, 471, 504, 506 of I.P.C., P.S. Kasganj, District Kasganj.
Learned counsel for the petitioner submits that despite approaching the authority concerned for fair investigation, no action whatsoever has been taken, therefore, an appropriate direction be issued for fair and impartial investigation.
Learned counsel for the State submits that State is under an obligation to do fair and impartial investigation of every case, but Hon'ble Apex Court by various judgments has held that for fair and impartial investigation, the remedy available to aggrieved person is to approach the Magistrate concerned under Section 156(3) Cr.P.C. He placed reliance on the decision of Co-ordinate Bench of this Court in Criminal Misc.Writ Petition No.15692 of 2020(Ajay Kumar Pandey Vs. State of U.P. and others) wherein, it has been held that if an informant/petitioner is aggrieved that fair investigation is not being done by the Investigation Officer, then he/she may approach the concerned Magistrate by moving an appropriate application under Section 156(3) Cr.P.C. for appropriate orders instead of invoking writ jurisdiction under Article 226 of the constitution of India.
The Apex Court in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, held as follows:
"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."
The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) CrPC has also been recognized in the decision of the Apex Court in the case of T.C. Thangaraj Vs. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu's case (supra), it has been observed as follows:
"12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same."
In view of the law laid down by the Hon'ble Apex Court, as noticed above, we dispose off this petition with liberty to the petitioner to invoke the power of the competent Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the Apex Court as noticed above.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner (s) alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 2.2.2021/Meenu
