The High Court held that the petitioner's remedy for seeking proper investigation lies with the Magistrate under Section 156(3) CrPC, not the High Court under Article 226, as per Supreme Court precedents.
Disposed with liberty to invoke Magistrate's power under Section 156(3) CrPC.
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Court No. - 48
Case :- CRIMINAL MISC. WRIT PETITION No. - 10451 of 2020
Petitioner :- Anju Devi Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Brijesh Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Sanjay Kumar Pachori,J.
Heard learned counsel for the petitioner; learned AGA for the respondents 1, 2 and 3 and perused the record.
The instant petition seeks a direction upon the Staterespondents to ensure proper investigation in Case Crime No.0257 of 2020, registered at Police Station- Kotwali, DistrictDeoria, under Sections 147, 323, 504, 506, 427, 188, 269, 304 I.P.C. and 3(1)(Da), 3(1)(Dha) of SC/ST (Prevention of Atrocities) Act and 51(b) of the Disaster Management Act, 2005.
The apex court in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, held as follows:
"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 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."
The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) CrPC has also been recognized in the decision of the apex court in the case of T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu's case (supra) it has been observed as follows:
"12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.)"
In view of the law noticed above, we dispose off this petition with liberty to the petitioner to invoke the power of the Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the apex court as noticed above.
Order Date :- 19.10.2020 Krishna*
1 issue framed by the court
Whether the High Court should entertain a writ petition seeking directions for proper investigation when an effective alternative remedy exists.
Colour shows how this judgement treated each authority
Sudhir Bhaskarrao Tambe v. Hemant Yashwant DhageRelied on¶7
Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 · Who else cites this
Sakiri Vasu v. State of U.P.Relied on¶7
Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 · Who else cites this
T.C. Thangaraj v. V. EngammalRelied on¶11
T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568 · Who else cites this
2 provisions across 2 enactments
Anju Devi
State Of U.P.
Manoj Misra
Sanjay Kumar Pachori
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
