Hon'ble Rajeev Singh,J.
Heard Sri Rajendra Kumar Dwivedi, learned counsel for the petitioner, Sri S.P. Singh, learned A.G.A. for the State and perused the material brought on record.
This petition has been filed by the petitioner with a prayer to direct the respondent no.3 to ensure fair and proper investigation in F.I.R. No.312 of 2020, under Sections 420, 406, 504, 506 I.P.C., P.S. Alambagh, District Lucknow. A further prayer has also been made to direct the respondent no.3 to transfer the investigation of the present case to the Crime Branch, Lucknow.
Learned counsel for the petitioner submits that the petitioner is the complainant of the case. He lodged the present F.I.R. against the respondent no.7 for the offence in question on 25.11.2020, but till date investigation has not been concluded, hence he filed the present petition before this Court.
It transpires from the record that the accused-respondent no.7, namely, Giriraj Sharma has challenged the impugned F.I.R. before this Court by means of filing Misc. Bench No.24418 of 2020 which has been disposed of by a Coordinate Bench of this Court on 6.1.2021.
Considering the facts and circumstances of the case and the submissions advanced by learned counsel for the parties, we do not find any good ground to issue any direction to transfer the investigation of the present case to the Crime Branch, Lucknow, hence the said prayer is hereby rejected.
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) Cr.P.C. 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 :- 11.2.2021 NS