Gujarat High Court
Samir Akbar Multani vs State Of Gujarat on 1 September, 2021
Bench: Ilesh J. Vora
R/SCR.A/5079/2019 ORDER DATED: 01/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5079 of 2019
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SAMIR AKBAR MULTANI
Versus
STATE OF GUJARAT
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2,3,4,5
MRS KRINA CALLA, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 01/09/2021
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) This Hon'ble Court be pleased to admit this
petition.
(B) This Hon'ble Court be pleased to allow this
petition and be pleased to issue appropriate writ, order
or direction against respondent authorities to register
F.I.R. against respondents no.3, 4 and 5 pursuant to the
written complaint (ANNEXURE 'A') submitted by the
petitioner for the offence punishable under Sections
406, 420, 465, 467, 468, 504, 506(2) and 120B of the
IPC, in the interest of justice.
(C) Pending admission and final hearing of this
application this Hon'ble Court be pleased to direct the
respondent authorities to register F.I.R. against
respondents no.3, 4 and 5 pursuant to the written
complaint (ANNEXURE 'A') submitted by the petitioner
for the offence punishable under Sections 406, 420,
465, 467, 468, 504, 506(2) and 120B of the IPC, in the
interest of justice."
2. Heard Mr. Shakeel Qureshi, learned advocate for the
petitioner and Mrs. Krina Calla, learned APP for the
R/SCR.A/5079/2019 ORDER DATED: 01/09/2021
respondent-State.
3. The writ petitioner has filed this writ petition for
direction upon the respondent authorities to register F.I.R.
against respondents no.3, 4 and 5 pursuant to the written
complaint (ANNEXURE 'A') submitted by the petitioner for
the offence punishable under Sections 406, 420, 465, 467,
468, 504, 506(2) and 120B of the IPC, in the interest of
justice.
4. The grievance of the writ petitioner is that inspite of
the aforesaid written complaint, the concerned respondent
authorities have not registered F.I.R. against the
respondents no.3, 4 and 5 and therefore, necessary
direction to register F.I.R. against the respondents no.3, 4
and 5 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 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.
6. In case of Sakiri Vasu (supra), the Hon'ble Apex Court
R/SCR.A/5079/2019 ORDER DATED: 01/09/2021
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
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
R/SCR.A/5079/2019 ORDER DATED: 01/09/2021
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, when alternative remedy is available to the
petitioner, this Court is not required to exercise its powers
under 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. Notice is discharged.
It is made clear that this Court has not examined the
merits of the case.
(ILESH J. VORA,J)
TAUSIF SAIYED
