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2012 DIGILAW 911 (PNJ)

Mukesh Kumar Solanki v. State of Haryana

2012-07-13

RAM CHAND GUPTA

body2012
JUDGMENT Mr. Ram Chand Gupta, J.: (Oral) - Crl.M.No.39185 of 2012 Application is allowed subject to all just exceptions. Crl.M.No.M-20181 of 2012 1. The present petition filed under Section 482 Cr.P.C. is for quashing of impugned enquiry report dated 20.4.2012, Annexure P24 ( As it has been contended by learned senior counsel for the petitioner that it was inadvertently mentioned as Annexure P21, and that the same be read as Annexure P24) with further prayer that respondents no.2 and 3 be directed to register a criminal case against respondent no.6 with further prayer that investigation be ordered to be conducted by senior IPS Officer of the Cadre other than Haryana Cadre. 2. I have heard learned senior counsel for the petitioner and have gone through the whole record carefully. 3. A complaint for registration of FIR against Shri Parveen Kumar, Administrator, HUDA was given to Station House Officer, Police Station, Sector 56, Gurgaon, by petitioner on 10.3.2012, which is Annexure P14. It has been further contended that instead of registeration of FIR, an enquiry was got conducted from Assistant Police Commissioner, Sadar East Gurgaon, who submitted his report Annexure P21, dated 2.4.2012 and recommended for registration of FIR. Further submitted that however, instead of registration of FIR, the matter was again got enquired into from some other police officer, who submitted his report, Annexure P24, to the effect that no such words, as mentioned in the complaint of petitioner, were uttered by him and that rather he being his superior officer had only directed the petitioner to do the official work. Hence, it is contended that when there was earlier recommendation of a police officer to register the FIR, the enquiry could not have been marked to another police officer by the Police Commissioner. 4. Be that as it may, the main prayer of the petitioner is that police is not registering the FIR and not investigating the case on the complaint of petitioner. However, even if that is so, petitioner is having alternative remedy of approaching learned Illaqa Magistrate under Section 156(3) Cr.P.C. 5. Law on the point has been well settled by Hon’ble Apex Court in Sakiri Vasu v. State of U.P., [2007(5) Law Herald (SC) 3910] : 2007(5) Law Herald (Supreme Court) 3910, wherein it has been observed as under:- “24. However, even if that is so, petitioner is having alternative remedy of approaching learned Illaqa Magistrate under Section 156(3) Cr.P.C. 5. Law on the point has been well settled by Hon’ble Apex Court in Sakiri Vasu v. State of U.P., [2007(5) Law Herald (SC) 3910] : 2007(5) Law Herald (Supreme Court) 3910, wherein it has been observed as under:- “24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper registration including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision. 25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3) Cr.P.C. 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover, he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? 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 concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. 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 ordinarily interfere. 6. Hence, in view of the aforementioned legal proposition, the present petition is disposed of with liberty to approach learned Illaqa Magistrate. ---------0.B.S.0------------