Savjibhai Nathubhai Vaghasiya vs Commissioner Of Police

S.H.Vora, J

The present petition under Article 226 of the Constitution of India has been filed by the petitioner seeking following direction in terms of para 6(B):-

“Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order or directions against the respondents to register

the complaint and lodged the FIR u/s 306 of the IPC against the respondent no.4 herein as stated in the application of the petitioner in the interest of

justice.â€​

Heard learned advocate for the petitioner.

The Hon'ble Apex Court in the case of Divine Retreat Centre v/s. State of Kerala and Ors. reported in (2008) 3 SCC 54 2has held in para 41 and

42 as under :-

It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue

appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an

Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and non-compliance

with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the

High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for

in the Code.

Even in cases where no action is taken by the police on the information given to them, the informants remedy lies under Sections 190, 200 Cr.

P.C., but a Writ Petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre Vs. State of Maharashtra & ors. held:

When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with

Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required

to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead

of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to

submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under

Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance

of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences

Employees Union (Regd.) V. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained.

Similarly, in the case of Sudhir Bhaskarrao Tambe v/s. Hemant Yashwant Dhage and Ors. reported in (2016) 6 SCC 277, the Hon'ble Apex Court

has held in para 2 as under :-

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.

In view of the settled position in case of Divine Retreat Centre (supra) and Sudhir Tambe (supra), the petitioners have alternate remedy to

approach concerned authority and/or the learned Magistrate under Sections 36, 154, 156(3) and 200 or any other provisions of the Code of Criminal

Procedure, 1973 for the relief sought for in the present petition. Therefore, the present petition is not entertained and the petitioner is at liberty to

approach the competent authority/Court, if they so desire.

In view of the above, present petition stands disposed of. It is clarified that this Court has not examined the merits of the present petition.