Rukhsar Khatoon v. State of U.P. Thru. Prin. Secy. Deptt. Home, Govt. U.P. Lucknow and 9 Others

Court No. - 10 Case :- CRIMINAL MISC. WRIT PETITION No. - 8877 of 2023 Petitioner :- Rukhsar Khatoon Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Home, Govt. U.P. Lucknow And 9 Others Counsel for Petitioner :- Maya Ram Yadav,Pankaj Kumar Dixit Counsel for Respondent :- G.A. Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Narendra Kumar Johari,J. Heard learned counsel for the petitioner, learned A.G.A. for the State/respondent Nos.1 to 3 and perused the record. This writ petition has been filed by the petitioner with a prayer to issue a writ of mandamus commanding and directing the opposite party Nos. 1 & 2 to take necessary action against the opposite party No.3 to insure the recovery of petitioner's Stridhan & Rs.10,000/- and to submit report before the competent court within prescribed time fixed by this Hon'ble Court after fairly & impartially investigating the matter of F.I.R. No.0229/2023, dated 20.08.2023, under Sections 498-A, 323, 504, 506 IPC & Section 3/4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 at Police Station - Khargupur, District - Gonda. Learned counsel for the petitioner submits that the petitioner is the informant of the case. He further submits that the impugned FIR has been lodged on 20.08.2023 against respondent nos.4 to 10, but till date fair and impartial investigation has not been done and the same has not been concluded, hence she has come up before this Court by filing the present petition. It is well settled in view of the decision of the Apex Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 as reiterated in Sudhir Bhaskarrao Tambe v. Hemant, Yashwant Dhage and others, (2016) 6 SCC 277 that in the event of unsatisfactory investigation, remedy of the aggrieved person is not to approach the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) Cr.P.C. Paragraphs 2 and 3 of Sudhir Bhaskarrao Tambe v. Hemant, Yashwant Dhage and others (supra) are quoted hereinunder:- "2. This Court has held in Sakiri Vasu v. State of U.P., 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. We have said this in Sakiri Vasu case because what we have found in this country that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

¶3We 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 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." Thus, in view of the above, remedy, if any, for the petitioner is to approach the competent Magistrate in respect of her grievance. With the aforesaid observations, this writ petition stands disposed of. Order Date :- 21.11.2023 ML/- High Court of Judicature at Allahabad, Lucknow Bench