Shamsher Singh Arya vs State of Haryana and others

RAM Chand Gupta, J.

Crl.M.No.39606 of 2012

Application is allowed subject to all just "exceptions.

Crl.M.No.M-20437 of 2012

The present petition "filed u/s 482 Cr.P.C. is for seeking direction to protect the life and liberty of the petitioner and for registration of FIR against private respondents no.6 to 15.

Heard.

Brief allegations are that earlier as well FIR was lodged by petitioner and regarding another incident a complaint is pending before the Magistrate and now regarding the present occurrence, which has taken place on 5.7.2012, no action is being taken by the police despite complaint being filed.

However, in view of these facts, petitioner is having alternative remedy to approach learned Magistrate u/s 156(3) Cr.P.C. Law on the point has been well settled by Hon''ble Apex Court in Sakiri Vasu v. State of U.P., 2007(5) Law Herald (Supreme Court) 3910, wherein it has been observed as under:

In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate u/s 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper registration including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.

We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition u/s 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly u/s 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate u/s 156(3) Cr.P.C.

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 u/s 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. 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 u/s 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition u/s 482 Cr.P.C. Moreover, he has a further remedy of filing a criminal complaint u/s 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many 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 u/s 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 Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, u/s 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint u/s 200 Cr.P.C. and not by filing a writ petition or a petition u/s 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.

Hence, in view of the aforementioned legal proposition, the present petition is disposed of with liberty to approach learned Illaqa Magistrate.