Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 2740 of 2019 Petitioner :- Dev Swaroop Sharma Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Sujan Singh Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
Heard Sri Sujan Singh, learned counsel for the petitioner and Sri A.N. Mulla, learned AGA for the State.
This writ petition has been filed for seeking a writ of mandamus commanding the respondent concerned to conduct fair investigation in pursuance of FIR registered as Case Crime No.1587 of 2018 under Sections 498A, 304B of I.P.C. & 3/4 of Dowry Prohibition Act, 1961 PS Highway District Mathura.
It is submitted that petitioner is an informant in the above case and despite applications to the SSP concerned for fair investigation, no action whatsoever has been taken, an appropriate direction be issued for fair and expeditious investigation.
It is well settled in view of the decision of the Apex Court 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."
Thus, in view of the above, remedy, if any, for the petitioner is to approach the competent Magistrate in respect of his grievance.
The writ petition is dismissed as not maintainable.
Order Date :- 31.1.2019 Ram Murti