Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 38166 of 2018 Petitioner :- Shyam Singh Respondent :- State Of U.P. And 16 Others Counsel for Petitioner :- Kashi Naresh Mishra Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
Heard Sri Kashi Naresh Mishra, learned counsel for the petitioner and the learned AGA.
This writ petition has been filed for seeking a writ of mandamus commanding the respondent no.2 to conduct investigation by independent investigating agency and to produce progress report before this Court in pursuance of FIR dated 28.11.2018 registered as Case Crime no. 183 of 2018, under Sections 147, 148, 149, 308, 354, 504, 506 and 3(1)X SC / ST Act, PS Pisawa, District Aligarh.
Pursuant to previous order dated 11.2.2019, the I.O, concerned is present along with case diary. He further submits that apart from appellants no. 4, 5, 6 and 9, appellant no.8 / Saurabh Gupta was also arrested on 18.2.2019 and that appellant no.10/ Sachin Sharma and appellant no. 15 / Nitin are reported to be juvenile. He finally submits that efforts are already underway to nab the other absconding accused.
However, in the event, if need be, it will be open for the petitioner to approach the Magistrate concerned under Section 156(3) Cr.P.C, as 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.
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 :- 25.2.2019 N.S.Rathour