Gujarat High Court
Kodarbhai Khanabhai Vasaiya vs State Of Gujarat on 4 August, 2021
Bench: Ilesh J. Vora
R/SCR.A/2882/2019 ORDER DATED: 04/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2882 of 2019
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KODARBHAI KHANABHAI VASAIYA
Versus
STATE OF GUJARAT
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Appearance:
GHANSHYAMBHAI N PATEL(8700) for the Applicant(s) No. 1
JUCKY LUCKY CHAN(8033) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MRS KRINA CALLA, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 04/08/2021
ORAL ORDER
1. By way of present petition filed under Article 226 of
the Constitution of India, the petitioner has prayed for
following reliefs:
"(A) To issue a writ of mandamus and/or any other
writ, order or direction directing the respondents No.2
to arrest the accused persons in connection with F.I.R.
being I CR No.93 of 2018 registered before Jhalod Police
Station, Dahod.
(B) To issue a writ of mandamus and/or any other
writ, order or direction directing the respondents
authorities to provide police protection to the present
petitioner.
(C) Pending hearing, admission and final disposal
of this petition, To issue a writ of mandamus and/or any
other writ, order or direction respondent authorities to
provide police protection to the present petitioner as
per representation dated: 22/12/2018."
2. Heard Mr. Jucky Lucky Chan, learned advocate for the
petitioner and Mrs. Krina Calla, learned APP for the
R/SCR.A/2882/2019 ORDER DATED: 04/08/2021
respondent-State.
3. The writ petitioner has filed this writ petition for
direction upon the respondent police authorities to arrest
the accused persons in connection with FIR being C.R.
No.I-93 of 2018 registered with Jhalod Police Station,
District: Dahod and further direct the respondent police
authorities to provide police protection to him.
4. The grievance of the writ petitioner is that inspite of
the representation dated 22.12.2018, the concerned
police authorities have not taken proper action and
therefore, necessary direction to arrest the accused
persons and to provide police protection to the present
petitioner is required to be given.
5. On the other hand, Mrs. Krina Calla, learned APP
appearing for the respondent-State submits that
approaching the Hon'ble High Court by filing application
under Article 226 of the Constitution of India is not a
proper remedy. She submits that pursuant to the FIR
bearing C.R. No.I-93 of 2018 registered with Jhalod Police
Station, Dahod, the petitioner has remedy available under
the provisions of the Criminal Procedure Code, 1973.
Relying on the case of "Sakiri Vasu vs. State of Uttar
Pradesh" reported in (2008) 2 SCC 409, she submits that
the Magistrate concerned can direct for proper
investigation.
R/SCR.A/2882/2019 ORDER DATED: 04/08/2021
6. In case of Sakiri Vasu (supra), the Hon'ble Apex Court
has considered this aspect of the matter in paragraph
nos.27 and 28 which reads as under:
"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 Section 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."
7. In case of "Sudhir Bhaskarrao Tambe v. Hemant
Yashwant Dhage" reported in (2016) 6 SCC 277, the
decision of "Sakiri Vasu (supra) was followed. In paragraph
no.2 of the judgment, the Apex Court has held as under:
"2. 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) Cr.P.C. If such an
R/SCR.A/2882/2019 ORDER DATED: 04/08/2021
application under Section 156(3) Cr.PC 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 is Sakiri Vasu
case because what we have found in this country is
that the High Courts have been flooded with the
petitions praying for registration of the first
information report or praying for a proper
investigation."
8. A caution has been put at paragraph no.3 which
reads as under:
"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 an proper
investigation in the matter, and he can also monitor
the investigation."
9. Applying the aforesaid dictum of law in the facts of
the present case, the petitioner being a complainant is not
satisfied with the progress of the investigation. In this
case, FIR is already registered before the concerned
police station and the informant is not satisfied with the
progress of the investigation, then, the remedy lies with
the informant to approach the Court concerned in terms
of provisions of Criminal Procedure Code, 1973. Thus,
when alternative remedy is available to the informant,
this Court is not required to exercise its powers under
R/SCR.A/2882/2019 ORDER DATED: 04/08/2021
Article 226 of the Constitution of India.
10. Accordingly, the present writ petition stands
dismissed with a liberty to the writ petitioner to approach
the jurisdictional Magisterial Court concerned by invoking
the statutory remedy available under the provisions of the
Criminal Procedure Code, 1973.
It is made clear that this Court has not examined the
merits of the case.
(ILESH J. VORA,J)
TAUSIF SAIYED
