Libertatem Magazine

Gujarat HC: No Writ Petition to be Entertained by the HC unless Alternate Remedy is Available to the Person Seeking Relief

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A petition has been filed under Article 226 of the Constitution of India in the present case of Vishnubhai Lallubhai Ghodi v/s State Of Gujarat on 13 January 2020 seeking a remedy under the same. The court held that no Writ Petition to be entertained before the High Court unless the alternate remedy is available to the Person seeking a remedy.

Facts of the Case

The Petitioner has appeared before the High Court seeking remedy by way of petition directing the respondents and its agent/servants to register FIR/complaint of the petitioner dated 19.01.2016 disclosing cognizable offence and investigate the same in accordance with the law and submit charge-sheet against the real culprit/s of the offence alleged.

Issues Raised

Can a Writ Petition be disposed without looking into the merits of the case if the person has alternate remedy i.e. can seek remedy through other lower courts before Approaching the High Court?

Arguments before the Court

The court contended that in this country the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

The court took into consideration some Precedent case Laws while substantiating for the argument. It was held in the case of Divine Retreat Centre v/s. The state of Kerala that it is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and noncompliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of the process as provided for in the Code. The court held that even in cases where no action is taken by the police on the information given to them, the informant’s remedy lies under Section 199 and 200 of Cr. P.C., but a Writ Petition in such a case is not to be entertained.
The court took another Precedent case law Gangadhar Janardan Mhatre v/s. State of Maharashtra & Ors. wherein it was held that

“when the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused.”

The court took reliance upon another recent case law of Supreme Court Sudhir Bhaskarrao Tambe v/s. Hemant Yashwant Dhage and Ors. 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) CrPC”. If such an application under Section 156(3) CrPC 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.

Decision of the Court

The Present Petition stands disposed of and the court did not go into the merits of the Case. The Court held where the Petitioner has alternate remedy before the other courts/ Tribunals lower than the High Court, the Petition would not be entertained in the subsequent Court. With regards to the Present case the Petitioner has alternate remedy to approach concerned authority and/or the learned Magistrate under Sections 36, 154, 156(3) and 200 or any other provisions of the Code of Criminal Procedure, 1973 for the relief sought for in the present petition.

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