Gujarat High Court
Ragesh Chandrakant Shah vs State Of Gujarat on 27 August, 2021
Bench: Ilesh J. Vora
R/SCR.A/2638/2019 ORDER DATED: 27/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2638 of 2019
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RAGESH CHANDRAKANT SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR DHRUV K DAVE(6928) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
MRS KRINA CALLA, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 27/08/2021
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) Your Lordships may be pleased to admit and allow
this Special Criminal Application.
(B) Your Lordships may be pleased to quash and set
aside the findings on 24.09.2018 for having made to file a
complaint of the applicant of 18.08.2018 and thereby direct
to lodge a crime in complaint of the applicant of 18.08.2018
and direct investigation under the supervision of the
Respondent No.2 or any other independent agency in the
interest of justice.
(C) Your Lordships may be pleased to quash a
communication for filing of the complaint of the applicant
and thereby direct to lodge a crime in complaint of the
applicant on 18.08.2018 with the Commissioner of Police and
JP Road Police Station, Vadodara.
2. Heard Mr. Dhruv K. Dave, learned advocate for the petitioner
and Mrs. Krina Calla, learned APP for the respondent-State.
3. The writ petitioner has given a complaint to the police
authorities on 18.08.2018 against the accused persons and
requested to take action against them. However, till date neither
any action is being taken nor the FIR is registered. The grievance of
R/SCR.A/2638/2019 ORDER DATED: 27/08/2021
the writ petitioner is that inspite of the aforesaid application, the
concerned authority has not taken proper action and therefore,
necessary direction is required to be given.
4. 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 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.
5. 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."
R/SCR.A/2638/2019 ORDER DATED: 27/08/2021
6. 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 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."
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. Applying the aforesaid dictum of law in the facts of the
present case, when alternative remedy is available to the informant,
this Court is not required to exercise its powers under Article 226 of
the Constitution of India.
R/SCR.A/2638/2019 ORDER DATED: 27/08/2021
9. 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. Notice is discharged.
(ILESH J. VORA,J)
SUCHIT
