Disposed¶14

Kailash v. State of U.P. and 7 Others

Allahabad HC4 Mar 2020CRLP/4003/2020

Case brief

AI extract

What is this about?

Fair investigation of FIR; writ of mandamus; informant's grievance of no action on complaint; alternate remedy; approach Magistrate under Section 156(3) Cr.P.C. instead of High Court under Article 226; Sakiri Vasu v. State of U.P. (2008) 2 SCC 409; Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage (2016) 6 SCC 277; FIR Case Crime No. 0433 of 2016 dated 23.09.2016; Sections 419, 420, 467, 468, 471, 406 IPC (cheating, forgery, criminal breach of trust); P.S. Badhalganj, District Gorakhpur; writ petition disposed of; order dated 4.3.2020; bench of Pankaj Naqvi and Saurabh Shyam Shamshery, JJ.

What did the court decide?

No mandamus granted; the writ petition was disposed of with the observation that the petitioner's remedy is to approach the competent Magistrate in respect of his grievance. ¶14

Kailash Vs State of U.P. and 7 Others — Writ and Judicial Review | Allahabad HC (2020)

What the court decided

AI extract

Outcome

No mandamus granted; the writ petition was disposed of with the observation that the petitioner's remedy is to approach the competent Magistrate in respect of his grievance.

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Issue for consideration

Whether the High Court should issue a writ of mandamus commanding fair investigation of F.I.R. No. 0433 of 2016 (Case Crime No. 0433 of 2016, P.S. Badhalganj, District Gorakhpur), or whether the informant's remedy for unsatisfactory investigation lies before the Magistrate under Section 156(3) Cr.P.C. rather than under Article 226.

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Court's answer

In the event of unsatisfactory investigation, the 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., as held in Sakiri Vasu v. State of U.P. and reiterated in Sudhir Bhaskarrao Tambe v. Hemant, Yashwant Dhage and others.

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Ratio / Principle

Applying that principle, the remedy, if any, of this petitioner for his grievance regarding investigation is to approach the competent Magistrate.

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Detailed headnote1 paragraphs

Criminal Miscellaneous Writ Petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding fair investigation in pursuance of F.I.R. dated 23.09.2016 in Case Crime No. 0433 of 2016 under Sections 419, 420, 467, 468, 471, 406 I.P.C., Police Station Badhalganj, District Gorakhpur, wherein the petitioner is the informant. Relying on 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 (paragraphs 2 and 3 whereof were extracted), the Court held that in the event of unsatisfactory investigation the remedy of the aggrieved person is to approach the Magistrate concerned under Section 156(3) Cr.P.C. and not the High Court under Article 226. Accordingly, the petitioner was left to approach the competent Magistrate in respect of his grievance, and the writ petition was disposed of. Order dated 4.3.2020.

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Court No. - 43

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Case :- CRIMINAL MISC. WRIT PETITION No. - 4003 of 2020

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Petitioner :- Kailash Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Rajnish Dubey Counsel for Respondent :- G.A.

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Hon'ble Pankaj Naqvi,J. Hon'ble Saurabh Shyam Shamshery,J.

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Heard Sri Rajnish Dubey, learned counsel for the petitioner and Dr. S.B. Maurya, the learned AGA.

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This writ petition has been filed for seeking a writ of mandamus commanding the respondent concerned to conduct fair investigation in pursuance of F.I.R. dated 23.09.2016 in Case Crime No. 0433 of 2016, under Sections 419, 420, 467, 468, 471, 406 I.P.C., Police Station Badhalganj, District Gorakhpur.

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It is submitted that petitioner is an informant in the above case and despite approaching the authority concerned for fair investigation, no action whatsoever has been taken, an appropriate direction be issued for fair and expeditious investigation.

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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.

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Paragraphs 2 and 3 of Tambe (supra) are quoted hereunder:

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"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

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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 that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

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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."

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Thus, in view of the above, remedy, if any, for the petitioner is to approach the competent Magistrate in respect of his grievance.

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With the aforesaid observations, this writ petition is disposed of.

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Order Date :- 4.3.2020 Ashok Gupta

Kailash v. State of U.P. and 7 Others

Case brief

What is this about?

What did the court decide?

Kailash v. State of U.P. and 7 Others

Case brief

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