Shikha Dhawan D/O Mrutyunjay vs Union Of India
2021 Latest Caselaw 12457 Guj

     R/SCR.A/4919/2019                              ORDER DATED: 26/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 4919 of 2019

================================================================
                         SHIKHA DHAWAN D/O MRUTYUNJAY
                                     Versus
                                 UNION OF INDIA
================================================================
Appearance:
MR ASHISH M DAGLI(2203) for the Applicant No. 1
for the Respondent No. 1
MRS KRINA CALLA APP for the Respondent No. 2
================================================================

 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                Date : 26/08/2021

                                 ORAL ORDER

1. By way of present petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following substantial reliefs:

"B) That the Hon'ble Court may be pleased to allow this Special Criminal Application by issuing appropriate writ order or direction directing the Union of India to issue necessary direction to the police officials outside State of Gujarat, State including that of "B" Division Police Station, Gandhidham, Dist. Kutch for fair and impartial investigation of CR No. I-170 of 2016 registered with "B" Division Police Station, Gandhidham dated 2.8.2016 in the interest of justice.

R/SCR.A/4919/2019 ORDER DATED: 26/08/2021

(C) This Hon'ble court may be pleased to allow this petition by issuing necessary warrant as well as proclamation of absconding persons prescribed under Sec. 82 of Cr.P.C. and thereafter even provisions of Sec.83 are required to be complied with wherein attachment of property of the absconding persons is made at the earliest in the interest of justice."

2. Heard Mr. Ashish M. Dagli, the learned advocate for the petitioner and Mrs. Krina Calla, the learned APP for the respondent State.

3. Brief facts leading to file present petition can be summarized as under:

(1) The petitioner Shikha Dhawan lodged FIR before B Division Police Station, Gandhidham, Kutch which came to be registered as CR. No. I.-170 of 2016 for the offences punishable under Section 302, 307, 120B of IPC, read with Section 25(1)(B)(A) and 27 of the Arms Act, inter-alia stating the facts that on 1.8.2016, two unknown persons came on motorbike and made open firm arm on Sachin, as a result of which, he succumbed to the injuries. In the FIR, name of Afroz Ansari and other unknown 2 persons being given by the informant, and upon investigation, the name of assailants namely [email protected] Rinku Rampal and

R/SCR.A/4919/2019 ORDER DATED: 26/08/2021

Ali Saifuddin Ansari being disclosed. During the course of further investigation, the accused Irshad Basir Ansari and Ajay Dhimpali were arrested. After completion of the investigation, chargesheet had been filed by the IO and case was committed to the Court of Sessions. During the trial, accused Afroz Ansari, came to be convicted under Section 302 read with Section 120B of the IPC and was ordered to undergo RI for life.

It is alleged that the absconding accused namely Irshad Ansasri, Rajendra Dhiman, Ali Saifuddin and Irsad Basir still at the run and had left the State of Gujarat and therefore, after due inquiry from the B Division Police Station, it is learnt that the Gujarat Police could not nabbed the absconding accused on account of non- cooperation from the police officials of other States. It is further alleged that the IO of the case is not following the provisions of Cr.P.C for issuance of the warrant and proclamation thereof. In the aforesaid background facts, the petitioner has come up before this Court by filing the present petition with the aforesaid relief, as referred above.

4. After having heard the learned counsel for the petitioner and State, this Court is of the considered view that the provisions of Cr.P.C provides for several alternative remedy to a person, who is aggrieved by improper investigation and therefore, writ petition should

R/SCR.A/4919/2019 ORDER DATED: 26/08/2021

not normally be entertained.

5. Reference can be made in case of Sakiri Vasu vs. State of Uttar Pradesh reported in (2008) 2 SCC 409,, wherein, the Apex Court observed that the provisions of Cr.P.C. provides for several alternative remedy to a person, who is aggrieved by improper investigation and therefore, the writ petition should not normally be entertained at the instance of such party. At paras 25, 26, 27 and 28 of the judgment, the Supreme Court observed as follows:

"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 156(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

R/SCR.A/4919/2019 ORDER DATED: 26/08/2021

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 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

R/SCR.A/4919/2019 ORDER DATED: 26/08/2021

settled that if there is an alternative remedy the High Court should not ordinarily interfere."

6. The Supreme Court has further considered this aspect of the matter in case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage reported in (2016) 6 SCC 277, wherein 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 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."

R/SCR.A/4919/2019 ORDER DATED: 26/08/2021

7. 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."

8. In view of the aforesaid decisions of the Apex Court, when an alternative remedy is available to the petitioners, this Court is not inclined to exercise its power under Article 226 of the Constitution of India. Accordingly, the writ petition stands dismissed with a liberty to the petitioners to approach the concerned jurisdictional Court by invoking statutory remedy available under the provisions of Code of Criminal Procedure. It is made clear that this Court has not examined the merits of the case.

(ILESH J. VORA,J) P.S. JOSHI