Jahedkhan Mahammadkhan Malek vs Police Inspector
2023 Latest Caselaw 2208 Guj

     R/SCR.A/1069/2014                            ORDER DATED: 13/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 1069 of 2014

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                     JAHEDKHAN MAHAMMADKHAN MALEK
                                   Versus
                        POLICE INSPECTOR & 9 other(s)
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Appearance:
MS NIYATI K SHAH(2935) for the Applicant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 4
MR PINAKIN B RAVAL(3468) for the Respondent(s) No. 10
MS MAITHILI MEHTA, APP for the Respondent No.3
NOTICE SERVED for the Respondent(s) No. 1,2,5,6,7,8
NOTICE SERVED BY DS for the Respondent(s) No. 9
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 13/03/2023

                               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 issue a writ of and in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondent No.1 to register as F.I.R., Application/Complaint at "Annexure E" to this Petition.

ALTERNATIVELY

This Hon'ble Court be pleased to issue a writ of and in the nature of mandamus or any other apprpriate writ, order or direction, directing the Respondent No.8 to take action in accordance with letter dated 23.12.2013

R/SCR.A/1069/2014 ORDER DATED: 13/03/2023

"Annexure D" by Deputy District Development Officer, District Panchayat Patan.

(c) This Hon'ble Court be pleased to issue a writ of and in the nature of mandamus or any other appropriate writ, order or direction, directing Respondent No.2 to entrust the investigation in the aforesaid matter to the officer not below the rank of Asst. Police Commissioner, as and when above said Application/Complaint at Annexure-A is registered as F.I.R. by Respondent No.1.

(d) This Hon'ble Court be pleased to issue a writ of and in the nature of mandamus or any other appropriate writ, order or direction, directing Respondent No.2 to initiate necessary action against Respondent No.1 for not complying statutory provisions and also for violating the directions given by the Hon'ble Supreme Court of India in the case of Lalita Kumari vs. State of U.P. and others.

(e) This Hon'ble Court be pleased to grant an interim relief in terms of prayer (b) above."

2. Heard learned counsel appearing for the respective parties.

3. The writ petitioner has filed this writ petition for direction upon the respondent no.1 to register as F.I.R., Application/Complaint at "Annexure E" to this Petition and alternatively prayed for direction, directing the Respondent No.8 to take action in accordance with letter dated 23.12.2013 " Annexure D" by Deputy District Development Officer, District Panchayat Patan.

4. The grievance of the writ petitioner is that inspite of

R/SCR.A/1069/2014 ORDER DATED: 13/03/2023

the aforesaid application/complaint, the concerned authority has not taken proper action and therefore, necessary direction to register as F.I.R., Application/Complaint at "Annexure E" to this Petition is required to be given.

5. On the other hand, Ms. Maithili Mehta, 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 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,

R/SCR.A/1069/2014 ORDER DATED: 13/03/2023

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 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

R/SCR.A/1069/2014 ORDER DATED: 13/03/2023

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