Libertatem Magazine

Gujarat High Court Rejects Prayer to Issue a Writ of Mandamus, Directs Complainant to Avail Alternate Remedy

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The Court directed the complainant to avail alternate remedy because the petitioner had not approached the concerned Magistrate and directly approached this Court, praying for issuing the writ of mandamus against the respondent to investigate his case, the present petition was thus rejected. The Court held that the aggrieved must avail of his alternate remedy to approach the concerned Magistrate under Section 156(3) CrPC.

Petitioner’s Submissions

Learned Advocate for the petitioner had submitted that the respondent authorities had not investigated the present matter and also threatened him to sign some compromise papers. He had contended that in the present case, the offence under Section 306 of IPC was hence, established and a written complaint was thus given by the complainant, but nothing was done in that regard and no FIR was registered.

Petitioner’s Prayers

By way of the present petition, the petitioner had prayed for a relief to issue a writ of mandamus or any other appropriate writ, order or directions, directing the respondents to register the petitioner’s complaint as FIR and investigate the same in a fair and unbiased manner.

Court’s Observations

The Court observed that similar issues had been adjudicated before, which could be referred to, like the case of Sakiri Vasu v. State of Uttar Pradesh And Others in which it was held that if someone had any grievance that his FIR was not being registered by the police station, under Section 154 of CrPC, then he could approach the Superintendent of Police under Section 154(3) CrPC by a written application. Even if that won’t yield any satisfactory result, the aggrieved person could file an application under Section 156(3) CrPC before the learned Magistrate concerned. The Magistrate can then direct the FIR to be registered and a proper investigation to be made, in a case where, according to the complainant, no proper investigation was made.

It was also observed that it was a well-settled fact that when any such power was expressly granted by a statute, there would also be impliedly included in the grant, every such power and control, the denial of which would render that grant itself ineffective. So, where an Act conferred such jurisdiction, it impliedly also granted further, the power of carrying out all such acts as were essential for carrying out its execution.

Court’s Directions

The Court was of the view that if the High Courts keep entertaining all such writ petitions, then they will be flooded only with such writ petitions and won’t be able to carry out any other work except dealing with such writ petitions. Therefore, the Court held that the complainant in the present case must avail of his alternate remedy of approaching the Magistrate under Section 156(3) of CrPC and if he would do so, the Magistrate will have to ensure, if prima facie he was satisfied, registration of the FIR and also ensure proper investigation in the present matter.

In the present circumstances, the Court had set aside the direction of the High Court for registration of the FIR and investigation into the present matter by the police authorities. At the same time, it was stated that the order wouldn’t impede in the way of the first respondent, filing documents and papers with the police according to the said complaint dated 18.09.2008 and the police authorities on being satisfied that a criminal offence was made out would have the liberty to register an FIR. It would be open for the respondent to approach the Court of the Metropolitan Magistrate if deemed necessary and appropriate. Moreover, it will be equally open to the appellants and others to take steps to protect their interests.

In the present case, the petitioner had not approached the concerned Magistrate and rather, had directly approached this High Court for the aforesaid prayer. Under such circumstances and in light of the observations made by the Apex Court, the present writ petition was rejected.

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