Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 4346 of 2019 Petitioner :- Alok Kumar @ Alok Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Narendra Kumar Tiwari,Rakesh Kumar Tripathi Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
Heard Shri Narendra Kumar Tiwari, learned counsel for the petitioner and Shri S.R.Pandey, the learned A.G.A.
Pursuant to previous order dated 12.2.2019, the I.O concerned is present along with case diary.
We perused the case diary and find that one of the accused Anil was arrested on 30.12.2018, further case has been converted to Section 304 I.P.C. Investigation is in progress. The learned A.G.A submits that efforts are on to nab the other absconding accused.
We leave it open for the petitioner to approach the C.J.M concerned in case any further order is required in view of the judgement of the Apex Court in 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.
Paragraphs 2 and 3 of Tambe (supra) are quoted hereunder:
"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 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.
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."
The writ petition is dismissed at this stage.
Order Date :- 25.2.2019 RS