Criminal Writ Petition seeking mandamus for fair investigation. Court held remedy lies with Magistrate under Section 156(3) Cr.P.C., not High Court under Article 226. Petition dismissed as not maintainable.
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Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 10253 of 2019
Petitioner :- Shiv Pujan Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Chandan Sharma,Piyush Sinha Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
Heard Sri Chandan Sharma, learned counsel for the petitioner and the learned AGA.
This writ petition has been filed for seeking a writ of mandamus commanding the respondent concerned to conduct fair investigation in pursuance of FIR dated 29.8.2018 registered as Case Crime no.0368 of 2018, under Sections 498-A, 342, 504, 506 IPC and Section 3/4 D.P. Act, PS Campierganj, District Gorakhpur.
It is submitted that petitioner is an informant in the above case and despite an application to the SSP concerned on 12.9.2018 for fair investigation, no action whatsoever has been taken, an appropriate direction be issued for fair and expeditious investigation.
It is well settled in view of the decision of the Apex Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 as reiterated in Sudhir Bhaskarrao Tambe v. Hemant, Yashwant Dhage and others , (2016) 6 SCC 277 that in the event of unsatisfactory investigation, remedy of the aggrieved person is not to approach the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) Cr.P.C.
Paragraphs 2 and 3 of Tambe ( supra ) are quoted hereunder:
"2. This Court has held in Sakiri Vasu v. State of U.P., 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) CrPC. If such an application under Section 156(3) CrPC 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 in 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.
3. 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 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."
Thus, in view of the above, remedy, if any, for the petitioner is to approach the competent Magistrate in respect of his grievance.
The writ petition is dismissed as not maintainable.
Order Date :- 19.4.2019 N.S.Rathour
1 issue framed by the court
whether a High Court writ under Article 226 is maintainable for seeking fair investigation instead of approaching a Magistrate under Section 156(3) Cr.P.C.
Colour shows how this judgement treated each authority
Sudhir Bhaskarrao Tambe v. Hemant, Yashwant Dhage and others, (2016) 6 SCC 277Distinguished¶8
Shiv Pujan
State Of U.P.
Pankaj Naqvi
Umesh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
