If there is an alternate remedy the High Court should not ordinarily interfere. : Jharkhand High Court

Agha Sahnawaz vs The State Of Jharkhand on 8 April 2021 Jharkhand High Court Agha Sahnawaz vs The State Of Jharkhand on 8 April 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 021 Agha Sahnawaz son of late Hazi Abdul Hasib aged about 61 years resident of Near Argora Railway Station P.S. Kadru P.O. Doranda District Ranchi 834002 ... .... .... Petitioner Versus 1.The State of Jharkhand 2. The Deputy Commissioner Ranchi 3. The Senior Superintendent of Police Ranchi 3. The Officer Incharge Argora Police Station Ranchi ... .... Respondents CORAM : HON BLE MR JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Afaque Rashidi Advocate For the State : Ms. Shivani Kapoor Advocate 05 08.04.2021 Heard Mr. Afaque Rashidi learned counsel for the petitioner and Ms. Shivani Kapoor learned counsel for the respondent State 2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been 3. Petitioner has filed this instant writ petition under Article 226 of the Constitution of India for direction upon the respondents to lodge F.I.R. on the basis of written complaint made by the 4. Grievance of the petitioner is that inspite of written submission of the petitioner F.I.R. has not 5. Learned counsel for the petitioner submits that it is right of the petitioner to lodge F.I.R. and the respondents are liable to lodge F.I.R which has not been done in the hand in hand 6. Ms. Shivani Kapoor learned counsel for the respondent State submits that approaching the Hon ble High Court by filing application under Article 226 of the Constitution is not an appropriate remedy. She submits that a proceeding under section 107 Cr.P.C. has already been initiated. He submits that in this type of cases there is remedy under Code of Criminal Procedure. He submits that if an FIR has not been registered proposed informant should approach before the Magistrate in terms of Code of Criminal Procedure. In support of his contention learned counsel for the respondent State relied upon judgement in the case of "Sakiri Vasu Vrs. State of Uttar Pradesh and Ors." reported in2 SCC 409. The Hon ble Surpeme Court has considered this aspect of the matter in the case of "Sakiri Vasu"in paragraph 27 and 28 which reads as under: Indian Kanoon Agha Sahnawaz vs The State Of Jharkhand on 8 April 2021 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 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 Cr.P.C and not by filing a writ petition or a petition under Section 482 Cr.P.C 28. 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 7. The Hon ble Supreme Court has further considered this aspect of the matter in the case of "Sudhir Bhaskarrao Tambe Vrs. Hemant Yaswant Dhage & Others" reported in6 SCC 277 wherein judgment passed in "Sakri Vasu)"was followed. In paragraph 2 of the aforesaid judgment the Hon ble Apex Court has held as under: 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 face 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 writ petitions praying for registration of the first information report or praying for a proper investigation 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 a proper investigation in the matter and he can also monitor the investigation Indian Kanoon Agha Sahnawaz vs The State Of Jharkhand on 8 April 2021 8. This judgment has also been relied upon by the Hon ble Supreme Court of India in the case of "M Subramaniam & Anr Vrs. S. Janaki & Anr." reported inSCC Online SC 341 9. In view of the judgment passed by the Hon ble Supreme Court the issue is now well settled. If police is not registering the FIR the remedy lies with the complainant to approach the Magistrate in terms of Code of Criminal Procedure. This alternative remedy is available to the complainant. In view of the aforesaid judgments since an alternative remedy is available to the petitioner the Court is not inclined to exercise its power under Article 226 of the Constitution of India 10. Accordingly the instant criminal writ petition stands dismissed with a liberty to the petitioner to approach before the Magistrate concerned by invoking the statutory remedy available in the Cr.P.C 11. It is made clear that the Court is not entering into the merit of the allegations and it should be considered by the Magistrate concerned as to whether it warrants an order under Section 156(3 Cr.P.C or not Sanjay Kumar Dwivedi J.) Satyarthi Indian Kanoon 

Summary: 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, it was referred by Justice Sanjay Kumar Dwivedi of the Jharkhand High Court in the matter of Agha Sahnawaz vs The State Of Jharkhand [ W.P. (Cr.) No. 03 of 2021] This order was passed over the facts The petitioner’s learned counsel contends that it is the petitioner’s right to file an F.I.R., and the respondents are also liable to file an F.I.R., which has not been done in a timely manner.  The learned counsel for the respondent-State contends that filing an application under Article 226 of the Constitution with the Hon’ble High Court is not an acceptable remedy. She claims that a proceeding under section 107 of the Criminal Procedure Code has already been started. He claims that in these types of circumstances, the Code of Criminal Procedure provides a remedy. He claims that if no FIR has been filed, the suggested informant should contact the Magistrate in accordance with the Code of Criminal Procedure.  Learned counsel for the respondent-State relied on the decision in the case of Sakiri Vasu Vs. State of Uttar Pradesh and Ors. [ (2008) 2 SCC 409]. In the case of “Sakiri Vasu” (supra), the Hon’ble Supreme Court considered this part of the subject in paragraphs 27 and 28, which read as follows: “The Magistrate has extensive authority to direct the filing of a FIR and to guarantee that a proper investigation is carried out, and he can also supervise the inquiry to see that it is carried out properly. The High Court should discourage the filing of a writ petition or a 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 that once it has been registered, the police has not conducted a proper investigation. The remedy for this grievance is to file a criminal complaint under Section 200 Cr.P.C, not a writ petition or a petition under Section 482 Cr.P.C, before the police officers involved, and if that fails, to file a criminal complaint under Section 156(3) CrPC before the Magistrate or to file a criminal complaint under Section 156(3) CrPC before the Magistrate.” This judgment has also been relied upon by the Hon’ble Supreme Court of India in the case of “M. Subramaniam &amp; Anr Vrs. S. Janaki &amp; Anr. [ (2020) SCC Online SC 341].  The problem is now well settled, owing to the Hon’ble Supreme Court’s decision. If the police do not record the FIR, the complainant has the option of going to the Magistrate under the Code of Criminal Procedure. The complaint has the option of using an alternative remedy. The Court is not inclined to exercise its power under Article 226 of the Indian Constitution in light of the aforementioned judgements because the petitioner has an alternative remedy.