HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 Case :- CRIMINAL MISC. WRIT PETITION No. - 24144 of 2019 Petitioner :- [ENTITY] Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- [ENTITY] Counsel for Respondent :- G.A. Hon'ble [ENTITY],J.
Hon'ble [ENTITY],J.
Heard learned counsel for the petitioner, learned A.G.A. for respondents 1 to 4 and perused the record.
The prayer in this petition is for transfer of investigation of [CASE NUMBER], registered at P.S. Ramgarh, District Firozabad, under [SECTION], [SECTION], [SECTION] [ACT] and 7/8 [ACT], to any other independent agency or C.B.C.I.D. The first information report relates to abduction/kidnapping of the minor daughter of the informant.
Learned counsel for the petitioner does not dispute that by now the statement of the victim has been recorded under [SECTION] [ACT] Though he alleges that action has not been taken against the accused and the police is harassing the petitioner.
The apex court in the case of [PRECEDENT], following its earlier decision in [ENTITY] v. State of U.P., (2008) 2 SCC 409, held as follows:
"2. This Court has held in [ENTITY] 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 [SECTION] of the [ACT], but to approach the Magistrate concerned under [SECTION] [ACT]. If such an application under [SECTION] [ACT] 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 [ENTITY] 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] [ACT] 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] [ACT] has also been recognized in the decision of the apex court in the case of [PRECEDENT], where, in the light of the law laid down in [ENTITY]'s case (supra) it has been observed as follows:
"12. It should also be noted that [SECTION] of the [ACT] 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 [ENTITY] 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 [ACT] in the light of the law laid down by the apex court as noticed above.
Apart from above the petitioner may represent to the higher police authorities if she has any complaint against the investigating officer.
Order Date :- 28.11.2019 Vandana