Gujarat High Court
Mahendihasan Sayedmahemud Nakvi vs State Of Gujarat on 3 March, 2022
Bench: Vipul M. Pancholi
R/SCR.A/12458/2021 ORDER DATED: 03/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12458 of 2021
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MAHENDIHASAN SAYEDMAHEMUD NAKVI
Versus
STATE OF GUJARAT
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Appearance:
MAZHARKHAN M PATHAN(8135) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR RONAK RAVAL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 03/03/2022
ORAL ORDER
1. This petition is listed from time to
time for hearing. However, learned Advocate, Mr.
M.M. Pathan, appearing for the petitioner has not
remained present.
1.1 This Court passed following order on
22.02.2022;
"Today, when the matter is called out,
learned advocate for the petitioners has not
remained present. In the interest of justice,
as a last chance, stand over to 25.02.2022."
1.2 Thereafter also, learned Advocate, Mr.
Pathan, did not remain present on 25.02.2022 and
therefore the matter was adjourned to today, i.e.
03.03.2022. Today also, learned Advocate, Mr.
R/SCR.A/12458/2021 ORDER DATED: 03/03/2022
Pathan, has not remained present even during the
Second Call and therefore, the learned APP has
assisted this Court.
2. This petition is filed under Article 226
of the Constitution of India, wherein, the
petitioner has prayed to direct Respondent No.2
to register the FIR, on the basis of the written
complaint given by him on 10.09.2021.
3. Learned APP, at this stage, submitted
that, if, the written complaint given by the
petitioner is not registered as an FIR by the
Respondent-authorities, then, it is always open
to the petitioner to file a private complaint
before the concerned Magisterial Court.
3.1 In support of his submission, learned
APP has placed reliance on the decision of the
Coordinate Bench of this Court (Coram: Mr. A.S.
Supehia, J.), Dated: 17.12.2020, rendered in
Special Criminal Application No. 6760 of 2020.
3.2 Learned APP has, therefore, prayed that
this petition be dismissed.
4. Having considered the submissions made
by the learned APP and having perused the
material placed on record and also on going
R/SCR.A/12458/2021 ORDER DATED: 03/03/2022
through the order dated 17.12.2020, passed by the
Coordinate Bench of this Court, it is clear from
the averments made in this petition that the
petitioner has filed the present petition on the
ground that the written-complaint given by him on
10.09.2021 has not been registered as an FIR, so
far. In the similar type of case, the Coordinate
Bench of this Court considered the said aspect
and after referring to the various decisions of
the Hon'ble Apex Court, has observed as under;
"4. While referring to the judgment of Sudhir
Bhaskarrao Tambe (supra), it is observed that
if the High Courts entertain such writ
petitions seeking registration of FIR, then
they will be flooded with such writ petitions
and will not be able to do any other work,
except dealing with them. It is specifically
held that the complainant must avail of his
alternate remedy to approach the Magistrate
concerned under section 156(3) of Cr.P.C and
if he does so, the Magistrate will ensure, if
prima facie he is satisfied, registration of
the FIR and also ensure a proper
investigation in the matter. While approving
the afore-noted view, the Supreme Court has
set aside the direction of the High Court for
registration of the FIR and has directed the
respondent thereto to approach the court of
Magistrate if deem appropriate and necessary.
Thus, the law on the registration of FIR is
R/SCR.A/12458/2021 ORDER DATED: 03/03/2022
well settled and has been reiterated in the
recent judgment of the Supreme Court as noted
herein above.
5. In the present case, the petitioner has
not approached the concerned Magistrate and
has directly approached this Court for the
aforesaid prayer.
6. Under the circumstances and in light of
the observations made by the Apex Court, the
writ petition is rejected since the
petitioner has the remedy to approach the
approach the concerned Magistrate under
section 156(3) of the Cr.P.C.."
4.1 In view of the aforesaid decision, this
Court is of the view that the grievance / issue
raised in this petition is covered by the
aforementioned decision and therefore, this
petition deserves to be dismissed.
5. For the foregoing reasons, this petition
fails and is DISMISSED. However, while so doing,
the LIBERTY is reserved in favour of the
petitioner to file a private complaint before the
concerned Magisterial Court.
(VIPUL M. PANCHOLI, J)
UMESH/-
