Ambalal Ukabhai Bhil vs State Of Gujarat

Ilesh J. Vora, J

By way of present petition filed under Article 226 of the Constitution of India, the petitioners have prayed for following reliefs:

“(A) YOUR LORDSHIPS be pleased to Call for the investigation papers of F.I.R. C.R. No.I-348 of 2018, registered with Sardarnagar Police

Station, Ahmedabad for the offence under section for the offence punishable under section 406, 420, 467, 468, 471, 120(B) of Indian Penal Code and

examine the same.

(B) YOUR LORDSHIPS be pleased to direct that the respondent authority to take steps against the concern officers of City Survey Office involved

in this offence and the concerned Bank officers of the Bank of India, Kalupur Branch.

(C) YOUR LORDSHIPS be pleased to grant status quo pertaining to the premises/construction situated at City Survey No.4599, 4601, 4600 and 4594

of Sardarnagar ward.â€​

Heard Ms. Taruna Makwana, learned advocate for the petitioners and Mrs. Krina Calla, learned APP for the respondent-State.

The writ petitioners have filed this writ petition for direction upon the respondent police authority to take action against the officers of City Survey

Office and concerned bank officers and to grant status-quo qua the property.

The grievance of the writ petitioners is that inspite of the written complaint, the concerned authority has not taken proper action and therefore,

necessary direction to carry out proper investigation by the concerned authority is required to be given.

On the other hand, Mrs. Krina Calla, learned APP appearing for the respondent-State submits that approaching the Hon’ble High Court by

filing application under Article 226 of the Constitution of India is not a proper remedy. She submits that pursuant to the FIR bearing C.R. No.I-348 of

2018 registered with Sardarnagar Police Station, Ahmedabad, the petitioners have remedy available under the provisions of the Criminal Procedure

Code, 1973. Relying on the case of “Sakiri Vasu vs. State of Uttar Pradesh†reported in (2008) 2 SCC 409, she submits that the Magistrate

concerned can direct for proper investigation.

In case of Sakiri Vasu (supra), the Hon’ble Apex Court has considered this aspect of the matter in paragraph nos.27 and 28 which reads as

under:

“27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation

and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High

Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his

FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the

remedy lies under Section 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the

Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High

Court should not ordinarily interfere.â€​

In case of “Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage†reported in (2016) 6 SCC 277, the decision of “Sakiri Vasu (supra)

was followed. In paragraph no.2 of the judgment, the Apex Court has held as under:

“2. 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) Cr.P.C. If such an application under Section 156(3) Cr.PC 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 is Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with the petitions praying for

registration of the first information report or praying for a proper investigation.â€​

A caution has been put at paragraph no.3 which reads as under:

“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 an proper investigation in the matter, and he can also monitor the investigation.â€​

Applying the aforesaid dictum of law in the facts of the present case, the applicant being a complainant is not satisfied with the progress of the

investigation. In this case FIR is already registered before the concerned police station and the informant is not satisfied with the progress of the

investigation, then, the remedy lies with the informant to approach the Court concerned in terms of provisions of Criminal Procedure Code, 1973.

Thus, when alternative remedy is available to the informant, this Court is not required to exercise its powers under Article 226 of the Constitution of

India.

Accordingly, the present writ petition stands dismissed with a liberty to the writ petitioners to approach the jurisdictional Magisterial Court

concerned by invoking the statutory remedy available under the provisions of the Criminal Procedure Code, 1973.

It is made clear that this Court has not examined the merits of the case.