Kalim Khan vs State Of Madhya Pradesh

Petitioner has approached this Court under Article 226 of the Constitution of India praying for a direction to the respondent No.4 to register the first information report against respondent Nos.6 to 8. The petitioner has claimed for the following reliefs:

"(i) That, this Hon'ble Court may be pleased to issue a writ in the nature of Mandamus to direct the respondents no.4 to register the first information report against the respondent no.6 to 8 as alleged by the petitioner for the offence punishable under sections 294, 323, 506-B, 34 of I.P.C.

(ii) That, any other writ/direction which is deemed fit and proper under the circumstances of the case."

At the outset, counsel for the respondents/State relies upon the judgment of the Apex Court in the case of Sakiri Vasu vs. State of Uttar Pradesh and others, (2008) 2 SCC409. Relying upon paragraphs 26, 27 and 28 of the said judgment, it was urged that the remedy for the petitioner is to approach the Magistrate under Section 156(3) of Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 of Cr.P.C. The relevant paragraphs of the said judgment read thus:

"26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC.

If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so may alternative remedies?

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 CrPC 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 Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.

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."

In view of the above, learned counsel for the petitioner states that he may be allowed to withdraw the present writ petition with liberty to take recourse to the alternative remedy under the Code of Criminal Procedure, in accordance with law.

Dismissed as withdrawn.

It shall be open for the petitioner to take recourse to the remedies, as may be available, in accordance with law.