The High Court dismissed a writ petition for fair investigation, holding it was not maintainable as the aggrieved person must approach the Magistrate under Section 156(3) Cr.P.C. per Sakiri Vasu and Tambe.
The writ petition was dismissed as not maintainable.
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Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 7053 of 2019
Petitioner :- Ali Mohammad Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Suneel Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
Heard Sri Suneel Kumar Mishra, 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 28.1.2019 registered as Case Crime 0052 of 2019 under Sections 395,147,148,149,354(Kha),452,504,323 IPC, and 7/8 POCSO Act PS Milak, District Rampur.
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 :- 15.3.2019 RS
1 issue framed by the court
Whether the High Court has jurisdiction to entertain a writ petition for fair investigation under Article 226 when an adequate remedy exists under Section 156(3) Cr.P.C.
Colour shows how this judgement treated each authority
Sakiri Vasu v. State of U.P.Distinguished¶6
Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 · Who else cites this
Sudhir Bhaskarrao Tambe v. Hemant, Yashwant Dhage and othersFollowed¶6
Sudhir Bhaskarrao Tambe v. Hemant, Yashwant Dhage and others, (2016) 6 SCC 277 · Who else cites this
2 provisions across 2 enactments
Ali Mohammad
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
