Veljibhai Khengarbhai Ahir vs State Of Gujarat
2021 Latest Caselaw 9753 Guj

      R/SCR.A/2372/2019                                      ORDER DATED: 28/07/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 2372 of 2019
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                          VELJIBHAI KHENGARBHAI AHIR
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
MS KRINA CALLA, APP (2) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                  Date : 28/07/2021

                                    ORAL ORDER

1. By way of this petition under article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-

"(A) This Hon'ble Court would be pleased to issue appropriate writ, order and direction directing the Respondent No.2-District Superintendent of Police, Bhuj, Kachchh and Respondent No.3- Superintend of Police, Bhuj, Kachchh (Paschim) to supervise by them the investigation in connection with the Crime Register No.I-138/2018 registered with the 'B' Division Police Station and if necessary also be pleased to hand over the investigation tio the police officer, other than the police officer of 'B' Division Police Station, Bhuj, Kachchh in the interest of justice.

(B) This Hon'ble Court would be pleased to forthwith conclude the investigation and submit the report as contemplated under Section 173 of the code of Criminal Procedure, in connection with the offence registered with the 'B' Division Police station, Bhuj, Kachchh vide Crime Register No.I-138/2008 in the interest of justice."

2. Heard Mr. Ashish M. Dagli, learned counsel for the petitioner and Mrs. Krina Calla, learned APP for the respondents State and its authorities.

3. This is the second round of litigation filed by the present Petitioner. In the first round, this Court vide order dated 02.08.2018 passed the following order in Special Criminal Application No.2463/2018 :

R/SCR.A/2372/2019 ORDER DATED: 28/07/2021

"The respondent no.2- Police Inspector, "B" Division police station, Bhuj, District: Kutch shall take into consideration the complaint filed by the petitioner in writing dated 25.02.2018 and decide whether the same discloses commission of any cognizable offence or not. If the complaint and other materials; if any, discloses commission of any cognizable offence, then in such circumstances, the FIR be registered forthwith. However,if respondent no. 2 is of the opinion, after going through the complaint that preliminary inquiry is to be made to know whether cognizable offence is made out, the same shall be done. After that exercise is made, if no case is made out for registration of FIR,then in such a situation,the petitioner be informed in writing about such decision by giving reasons in brief,within a period of two weeks from the date of receipt of copy of this order."

4. Now, it is the submissions of learned counsel for the Petitioner that, the authority has not properly investigated the case for which direction upon the authority is necessary.

5. Mrs. Krina Calla, learned APP for the State would submit that, remedy to approach the Magistrate under the provisions of the Code of Criminal Procedure is available to the petitioner and having alternative remedy available to the Petitioner, present petition may not be entertained exercising powers under Article 226 of the Constitution of India.

6. The Apex Court has considered this aspect of the matter in the case Sudhir Bhaskarrao Tambe Vrs. Hemant Yaswant Dhage & Others, [(2016) 6 SCC 277], wherein judgment passed in Sakri Vasu was followed. In paragraph 2 of the aforesaid judgment the Apex Court has held as under:-

"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 face, 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

R/SCR.A/2372/2019 ORDER DATED: 28/07/2021

have been flooded with writ 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) Cr.P.C 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."

8. The aforesaid judgment has been relied upon by the Apex Court in the case of M. Subramaniam & Anr. Vs. S. Janaki & Anr. [(2020) SCC Online SC 341].

9. In view of the aforesaid judgments passed by the Apex court Court, the issue is now well settled. The remedy lies with the Petitioner to approach the Magistrate in terms of the Code of Criminal Procedure. Since the alternative remedy is available to the Petitioner, this Court is not inclined to exercise its power under Article 226 of the Constitution of India.

10. Accordingly, the instant petition stands dismissed with a liberty to the petitioner to approach the Magistrate concerned by invoking the statutory remedy available in the Cr.P.C. It is made clear that the Court has not examined the merits of the case. Notice is discharged.

(ILESH J. VORA,J) SUCHIT