Jharkhand High Court
Agha Sahnawaz vs The State Of Jharkhand on 8 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 03 of 2021
------
Agha Sahnawaz, son of late Hazi Abdul Hasib, aged about 61 years,
resident of Near Argora Railway Station, P.S. Kadru, P.O. Doranda,
District-Ranchi 834002
... .... .... Petitioner
Versus
1.The State of Jharkhand
2. The Deputy Commissioner, Ranchi
3. The Senior Superintendent of Police, Ranchi
3. The Officer Incharge, Argora Police Station, Ranchi
... .... Respondents
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner : Mr. Afaque Rashidi, Advocate
For the State : Ms. Shivani Kapoor, Advocate
05/08.04.2021 Heard, Mr. Afaque Rashidi, learned counsel for the petitioner
and Ms. Shivani Kapoor, learned counsel for the respondent-State.
2. This petition has been heard through Video Conferencing in view
of the guidelines of the High Court taking into account the situation arising
due to COVID-19 pandemic. None of the parties have complained about any
technical snag of audio-video and with their consent this matter has been
heard.
3. Petitioner has filed this instant writ petition under Article 226 of the
Constitution of India for direction upon the respondents to lodge F.I.R. on
the basis of written complaint made by the petitioner.
4. Grievance of the petitioner is that inspite of written submission
of the petitioner, F.I.R. has not been lodged.
5. Learned counsel for the petitioner submits that it is right of the
petitioner to lodge F.I.R. and the respondents are liable to lodge F.I.R, which
has not been done in the hand in hand.
6. Ms. Shivani Kapoor, learned counsel for the respondent-State
submits that approaching the Hon'ble High Court by filing application under
Article 226 of the Constitution is not an appropriate remedy. She submits
that a proceeding under section 107 Cr.P.C. has already been initiated. He
submits that in this type of cases there is remedy under Code of Criminal
Procedure. He submits that if an FIR has not been registered, proposed
informant should approach before the Magistrate in terms of Code of
Criminal Procedure. In support of his contention learned counsel for the
respondent-State relied upon judgement in the case of "Sakiri Vasu Vrs.
State of Uttar Pradesh and Ors." reported in (2008) 2 SCC 409.
The Hon'ble Surpeme Court has considered this aspect of the matter in the
case of "Sakiri Vasu" (supra) in paragraph 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 Sections 36 and 154(3) before the police
officers concerned, and if that is of no avail, under Section
156(3) CrPC 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. The Hon'ble Supreme Court has further considered this aspect of
the matter in the case of "Sudhir Bhaskarrao Tambe Vrs. Hemant
Yaswant Dhage & Others" reported in (2016) 6 SCC 277 wherein
judgment passed in "Sakri Vasu)" (supra) was followed. In paragraph 2
of the aforesaid judgment the Hon'ble 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
have been flooded with writ petitions praying for registration
of the first information report or praying for a proper
investigation."
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 a proper investigation in the matter, and he can also
monitor the investigation."
8. This judgment has also been relied upon by the Hon'ble Supreme
Court of India in the case of "M. Subramaniam & Anr Vrs. S. Janaki &
Anr." reported in (2020) SCC Online SC 341.
9. In view of the judgment passed by the Hon'ble Supreme Court, the
issue is now well settled. If police is not registering the FIR, the remedy lies
with the complainant to approach the Magistrate in terms of Code of
Criminal Procedure. This alternative remedy is available to the complainant.
In view of the aforesaid judgments since an alternative remedy is available
to the petitioner, the Court is not inclined to exercise its power under Article
226 of the Constitution of India.
10. Accordingly, the instant criminal writ petition stands dismissed
with a liberty to the petitioner to approach before the Magistrate concerned
by invoking the statutory remedy available in the Cr.P.C.
11. It is made clear that the Court is not entering into the merit of
the allegations and it should be considered by the Magistrate concerned as
to whether it warrants an order under Section 156(3) Cr.P.C or not.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/-
