Alternative remedy is not an absolute bar to a writ petition. : Jharkhand High Court
It is true that an 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, is referred by Justice Sanjay Kumar Dwiwedi of the Jharkhand High Court in the case of Md. Shamin v. State of Jharkhand [ W.P. (Cr.) No. 312 of 2020] This order was passed in a matter of facts where the petitioner has filed this writ petition under Article 226 of the Indian Constitution seeking a direction to the respondents to lodge an F.I.R. based on the petitioner’s written complaint. The petitioner’s complaint is that, despite the petitioner’s written submission, no F.I.R. has been filed. Learned counsel for the petitioner contends that the petitioner has the right to file an F.I.R. and that the respondents are obligated to file an F.I.R., which they have not done. The learned counsel for the respondent-State contends that petitioning the Hon’ble High Court under Article 226 of the Constitution is not an appropriate remedy. He claims that a proceeding under Section 107 of the Criminal Procedure Code has already been initiated. He claims that there is a remedy available under the Code of Criminal Procedure in these types of cases. He claims that if no FIR has been filed, the proposed informant should approach the Magistrate in accordance with the Code of Criminal Procedure. In support of his contention, learned counsel for the respondent-State cited the decision in “Sakiri Vasu Vrs. State of Uttar Pradesh and Ors.” reported in (2008) 2 SCC 409. This aspect of the case was further considered by the Supreme Court in the case of “Sudhir Bhaskarrao Tambe Vrs. Hemant Yaswant Dhage &amp; Others” reported in (2016) 6 SCC 277, in which the judgement in “Sakri Vasu)” (supra) was followed. The Hon’ble Supreme Court has held in paragraph 2 of the aforementioned judgement as follows: “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 a change of the investigating officer so that a proper investigation is done in the matter.”  The Hon’ble Supreme Court of India cited this decision in the case of “M. Subramaniam &amp; Anr Vrs. S. Janaki &amp; Anr,” reported in (2020) SCC Online SC 341. The issue is now well settled as a result of the Hon’ble Supreme Court’s decision. If the police do not register the FIR, the complainant may approach the Magistrate in accordance with the Code of Criminal Procedure. The complainant has access to this alternative remedy. Given the preceding decisions, and the petitioner’s availability of an alternative remedy, the Court is hesitant to exercise its power under Article 226 of the Indian Constitution.
Md. Shamim vs The State Of Jharkhand on 8 April 2021 Jharkhand High Court Md. Shamim vs The State Of Jharkhand on 8 April 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 3120 Md. Shamim son of Jainul Abdin aged about 59 years resident of Masjid Gali Hindpiri P.O. and P.S. Hindpiri District Ranchi ... .... .... Petitioner Versus 1.The State of Jharkhand 2. The Senior Superintendent of Police Ranchi 3. The Officer Incharge Kotwali Police Station Ranchi ... .... Respondents CORAM : HON BLE MR JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Afaque Rashidi Advocate For the State : Mr. Aditya Raman A.C. to G.A. III 05 08.04.2021 Heard Mr. Afaque Rashidi learned counsel for the petitioner and Mr. Aditya Raman 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. Mr. Aditya Raman 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. He 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: 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 Indian Kanoon Md. Shamim vs The State Of Jharkhand on 8 April 2021 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 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 Indian Kanoon Md. Shamim vs The State Of Jharkhand on 8 April 2021 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 