Gujarat High Court
Nitirajsinh Chudasama vs State Of Gujarat on 22 June, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/2507/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2507 of 2020
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NITIRAJSINH CHUDASAMA
Versus
STATE OF GUJARAT
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Appearance:
MR AKSHAYSINH N CHUDASAMA(11080) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/06/2020
ORAL ORDER
1. The present petition under Article 226 of the Constitution of India has been filed by the petitioner seeking following direction:-
"(a) Issuance of writ of mandamus or any other appropriate writ to file an FIR in the matter and/or to book the accused and/or to investigate the matter after filing of the FIR under the supervision of superintendent of police and/or to take such steps as the Hon'ble Court deems fit in this matter;
(b) Issuance of writ of mandamus or any other appropriate Writ against the defaulting police officer i.e. Respondent No.3 and To give the reason of why he has not registered the FIR, and why he should not be suspended from his position of police service for interfering in the administration of justice, pursuing abuse of power and misuse of power and shielded/harboring the group accused person from law, and/or to initiate departmental proceedings against him to ensure free and fair investigation."Page 1 of 4 Downloaded on : Mon Jun 22 23:03:12 IST 2020
R/SCR.A/2507/2020 ORDER
2. Heard learned advocate for the petitioner at length.
3. The Hon'ble Apex Court in the case of Divine Retreat Centre v/s. State of Kerala and Ors. reported in (2008) 3 SCC 542 has held in para 41 and 42 as under:-
"41. 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 noncompliance 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.
42. 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:
"13. 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 Page 2 of 4 Downloaded on : Mon Jun 22 23:03:12 IST 2020 R/SCR.A/2507/2020 ORDER 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."
4. 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 :-
"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 beenregistered 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."
5. The allegations of the petitioner are of violent mob attack, during the lockdown period of Covid-19 crisis, the petitioner says that the police is not entertaining his complaint, as per the law expounded in the referred judgments, the petitioner has to show that his case falls under the category of rarest of rare case for Page 3 of 4 Downloaded on : Mon Jun 22 23:03:12 IST 2020 R/SCR.A/2507/2020 ORDER the exercise of power under Article 226 of the Constitution of India and thus has alternate remedy to approach under Sections 36 and 154 of Cr. PC to superior officers of police or under sections 156(3) and 200 or any other provisions of the Code of Criminal Procedure, 1973 to the Judicial Magistrate for the relief sought for in the present petition. Therefore, the present petition is not required to be entertained. The petitioner is at liberty to approach the competent authority/Court, if the petitioner so desires.
6. In view of the above, present petition stands disposed of at preliminary stage.
(GITA GOPI,J) NEHA / MARY VADAKKAN Page 4 of 4 Downloaded on : Mon Jun 22 23:03:12 IST 2020