Gujarat High Court
Bharatbhai Dahyabhai Patel vs State Of Gujarat on 1 September, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/SCR.A/3180/2019 ORDER DATED: 01/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3180 of 2019
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BHARATBHAI DAHYABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
MRS KRINA CALLA, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 01/09/2021
ORAL ORDER
1. By way of present petition filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:
"(A) This Honourable Court may be pleased to admit and allow this petition.
(B) This Honourable Court be pleased to direct the Police Inspector of Navsari Rural Police Station to register an FIR in connection with the complaint dated 07.10.2018 filed by the petitioner for the offences punishable under Sections 427, 428, 447, 449, 450, 452, 504, 506(2), 143, 144, 147, 148, 120B, 114, 34, 149 and 323 of the Indian Penal Code and under Sections 3(1)(r), 3(1)(z) and 3(2)(5)(a) of the Atrocities Act against the accused persons and investigate the same in accordance with law.
(C) That this Hon'ble Court be pleased to order initiation of proceedings against the respondent Nos.3 and 4, who have disregarded their obligation by not investigating the complaint filed against the accused (Annexed at Annexure-A to the petition)."
2. Heard Mr. Zubin Bharda, learned advocate for the petitioner and Mrs. Krina Calla, learned APP for the Page 1 of 4 Downloaded on : Thu Sep 02 23:34:40 IST 2021 R/SCR.A/3180/2019 ORDER DATED: 01/09/2021 respondent-State.
3. The petitioner by way of the present petition challenges the refusal of the Police Inspector, Navsari Rural Police Station, to register an FIR of the offence which occurred in the house of the petitioner whereby the petitioner was assaulted by the accused named in the complaint and other unknown persons who trespassed into the residential premises of the petitioner on 07.10.2018 and assaulted the petitioner, which was separate and distinct offence, having no connection with assault and damage to the properties of the petitioner herein.
4. On the other hand, Mrs. Krina Calla, learned APP appearing for the respondent-State submits that approaching the Hon'ble High Court by filing application under Article 226 of the Constitution of India is not a proper remedy. She submits that the petitioner has remedy available under the provisions of the Criminal Procedure Code, 1973. Relying on the case of "Sakiri Vasu vs. State of Uttar Pradesh" reported in (2008) 2 SCC 409, she submits that the Magistrate concerned can direct for proper investigation.
5. In case of Sakiri Vasu (supra), the Hon'ble Apex Court has considered this aspect of the matter in paragraph nos.27 and 28 which reads as under:
Page 2 of 4 Downloaded on : Thu Sep 02 23:34:40 IST 2021R/SCR.A/3180/2019 ORDER DATED: 01/09/2021 "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 Cr.P.C. 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.
For this grievance, the remedy lies under Section 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.
28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere."
6. In case of "Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage" reported in (2016) 6 SCC 277, the decision of "Sakiri Vasu (supra) was followed. In paragraph no.2 of the judgment, the Apex Court has held as under:
"2. 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) Cr.P.C. If such an application under Section 156(3) Cr.PC 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 is Sakiri Vasu case because what we have found in this country is Page 3 of 4 Downloaded on : Thu Sep 02 23:34:40 IST 2021 R/SCR.A/3180/2019 ORDER DATED: 01/09/2021 that the High Courts have been flooded with the petitions praying for registration of the first information report or praying for a proper investigation."
7. A caution has been put at paragraph no.3 which reads as under:
"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 an proper investigation in the matter, and he can also monitor the investigation."
8. Applying the aforesaid dictum of law in the facts of the present case, when alternative remedy is available to the petitioner, this Court is not required to exercise its powers under Article 226 of the Constitution of India.
9. Accordingly, the present writ petition stands dismissed with a liberty to the writ petitioner to approach the jurisdictional Magisterial Court concerned by invoking the statutory remedy available under the provisions of the Criminal Procedure Code, 1973. Notice is discharged.
It is made clear that this Court has not examined the merits of the case.
(ILESH J. VORA,J) TAUSIF SAIYED Page 4 of 4 Downloaded on : Thu Sep 02 23:34:40 IST 2021