Dismissed

Sri. K. Gurupada Gowda v. the State of Karnataka

Karnataka HC15 Jan 2021WP/1696/2017

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging delay in police investigation regarding a cheque-bounce/complaint. The court held that the petitioner failed to explore efficacious alternative remedies under Cr.P.C. before approaching under Article 226.

What did the court decide?

Petition dismissed. Liberty reserved to seek appropriate remedy before the appropriate forum.

Sri. K. Gurupada Gowda Vs the State of Karnataka — Service and Employment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF JANUARY, 2021 BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.1696 OF 2017 (GM-POLICE)

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BETWEEN:

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SRI K GURUPADA GOWDA S/O RUDRAPPA GOWDA K AGED ABOUT 45 YEARS INDIHALLI VILLAGE ULUVI HOBLI SORBA TALUK SHIVAMOGGA DISTRICT – 577 429. ... PETITIONER

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(BY SRI MANJUNATHA H.V , ADVOCATE)

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AND:

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THE STATE OF KARNATAKA HOME DEPARTMENT VIKASA SOUDHA AMBEDKAR VEEDHI BENGALURU – 560 001. REPRESENTED BY ITS SECRETARY

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THE SUPERINTENDENT OF POLICE SHIVAMOGGA DISTRICT SHIVAMOGGA -577 201

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THE STATION HOUSE OFFICER SORBA POLICE STATION SORABA SHIVAMOGGA DISTRICT – 577 429

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... RESPONDENTS

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(BY SRI ACHAPPA P.B, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO DIRECT THE

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R-3 TO COMPLETE THE INVESTIGATION IN CRIME NO. 109/2016 AND SUMBIT THE REPORT TO THE JURISDICTIONAL MAGISTRATE IMMEDIATELY.

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THIS PETITION COMING ON FOR PRELIMINARY THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is seeking for a writ of mandamus

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directing the third respondent to complete the investigation in Crime No.109/2016 and to submit a report to the jurisdictional Magistrate.

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It is the case of petitioner that on the basis of a complaint, FIR came to be registered in Crime No.109/2016 for the offences punishable under Sections 420, 468 and 471 read with Section 34 of IPC against Rudrappa Gowda, Gururaj Gowda and the Manager, Karnataka Bank, Soraba Branch, on 27.05.2016. He states that accused Nos.1 and 2 are none other than the father and brother of the petitioner. It is the further case of petitioner that his father and brother/accused Nos.1 and 2 colluded with accused No.3-the Bank Authority availed agricultural loan by furnishing false documents and information, thereby accused have cheated the petitioner and misused public money. After registering the complaint, second respondent forwarded the same to third respondent for further

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investigation. Despite several months and years have been passed, no investigation has been conducted and no final report has been submitted by third respondent. Therefore, it is the contention of petitioner that the accused are hand in glove with the investigating agency in protracting and delaying the submission of the final report.

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Being aggrieved by the same, the petitioner is before this Court by virtue of this petition for a direction to the respondent-Police to submit the final report.

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Learned counsel for the petitioner contends that despite complaint having been given in the year 2016 against the accused, investigation has not been completed by the respondent-Police. It is his grievance that the accused are highly influential and have interfered with the investigation, which has caused the delay thereby, the respondent-Police has failed to complete the investigation and submit the final report.

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On the contrary, Sri P.B.Achappa, learned Additional Government Advocate contends that the writ petition itself is not maintainable, in view of the fact that if the petitioner has any grievance with regard to non conducting of investigation by the respondent-Police pursuant to the FIR being registered,

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primarily, he has to explore the remedy available under the provisions of Cr.P.C. before venturing into filing this adventurous writ petition seeking for an extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. He further contends that the petitioner would have the right to approach this Court only if there are no other alternative, suitable and efficacious remedy before the other forums under other provisions of law.

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Learned Additional Government Advocate relied on the decision of the Hon’ble Apex Court in the case of SAKIRI VASU v. STATE OF U.P. reported in (2008)2 SCC 409 wherein the Hon’ble Apex Court has held in paras-25 to 27 as under:

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“25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternative remedy, first under Section 154(3) and Section 36 CrPC before the police officers concerned, and if that is

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of no avail, by approaching the Magistrate concerned under Section 156(3).

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26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

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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 CrPC 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.

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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 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.”

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The Hon’ble Apex Court, time and again, has held

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that if the petitioner aggrieved by the investigation not being completed, he cannot rush to the writ Court seeking for a direction to the Police Authorities or any other investigating agency unless he explores the possibilities of other alternative and efficacious remedy available in law. Therefore, the appropriate remedy available for the petitioner was to exercise the option to go before the Magistrate under Section 156(3) Cr.P.C. or to file a private complaint under Section 200 of Cr.P.C. rather than rushing to this Court. But in the present case, it is not in dispute that the FIR has already been registered in Crime No.109/2016. Therefore, if the FIR is already in existence, the option of filing a private complaint would not arise.

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It is relevant at this point of time to extract the

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provisions of Section 156(3) of Cr.P.C., which reads as under:

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“156.xxxxxx

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(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.”

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In a case where an FIR is registered and where the Police is in the process of conducting an investigation, for which the aggrieved person/the petitioner herein feels that the same is not proper, such a person is at liberty to approach the Magistrate under Section 156(3) and if the Magistrate is satisfied, he can order a proper investigation and take suitable steps to pass such orders as he thinks necessary for ensuring a proper investigation in accordance with law. This, however, does not bar the investigating agency to conduct its own further investigation in the matter. Therefore, the present petitioner has rushed into this Court without exploring these available remedies in law and once an alternative and efficacious remedy is available, it is well established that a writ petition would not lie. Therefore, I am in agreement with the submissions and contentions made by the learned Additional Government Advocate. Hence, there is no merit in the petition filed by the petitioner and accordingly, the petition is dismissed . However, a liberty is reserved to the petitioner to

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seek an appropriate remedy before the appropriate forum to adjudicate his grievance.

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No opinion has been expressed by this Court in the matter.

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Learned Additional Government Advocate is permitted to

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file a Memo of Appearance within two weeks from today.

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Sd/JUDGE

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Sri. K. Gurupada Gowda v. the State of Karnataka

Case brief

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Sri. K. Gurupada Gowda v. the State of Karnataka

Case brief

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