Hon'ble Rajeev Singh,J.
Heard Sri Abhishek Khare, learned counsel for the petitioners, Shri S.P. Singh, learned A.G.A. for the State.
By means of present writ petition, the petitioner has made the following prayers:-
"(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite party No.3 to proceed with the investigation in First Information Report of Case Crime No.0227 of 2019, under Sections 494, 495, 416, 420, 504 and 506 I.P.C., Police Station Bazar Khala, District Lucknow, dated 09.07.2019 in fair and proper manner.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite party No.2 to take necessary action in the matter.
(iii) Issue a writ, order or direction in the nature of mandamus commanding the opposite party No.2 to decide the pending representation of the petitioner and take appropriate action as per law.
(iv) Issue a writ, order or direction in the nature of mandamus commanding the opposite party No.2 to change the investigating officer of the Case Crime No.0227 of 2019, under Sections 494, 495, 416, 420, 504 and 506 I.P.C., Police Station Bazar Khala, District Lucknow, dated 09.07.2019."
Learned counsel for the petitioner submits that the petitioner is the informant of the case. He lodged the present F.I.R. on 09.07.2019 but till date the investigation has not been concluded, hence he has come up before this Court by filing the present petition.
Learned A.G.A. could not dispute the aforesaid fact as argued by learned counsel for the petitioner.
Considering the facts and circumstances of the case, we do not find any ground to grant prayer with regard to issue any direction to opposite party no. 2 to decide the representation of the petitioner or to issue any direction to change the Investigating Officer of the present case, hence the prayer for the same is hereby refused. However, with regard to prayer made for fair investigation, it is observed that the apex court in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, held as follows:
"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 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 a proper investigation in the matter, and he can also monitor the investigation."
The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) CrPC has also been recognized in the decision of the apex court in the case of T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu's case (supra) it has been observed as follows:
"12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.)"
In view of the law noticed above, we dispose off this petition with liberty to the petitioner to invoke the power of the Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the apex court as noticed above.
(Rajeev Singh, J.) (Ramesh Sinha, J.) Order Date :- 3.2.2021 Amit/-