Smt. Pushpa v. State of U.P. Thru. Prin.Secy. Deptt. of Home , Civil Secrt. Lko. and Others

Court No. - 10 Case :- CRIMINAL MISC. WRIT PETITION No. - 9036 of 2023 Petitioner :- Smt. Pushpa Respondent :- State Of U.P. Thru. Prin.Secy. Deptt. Of Home , Civil Secrt. Lko. And Others Counsel for Petitioner :- Raghunath Prasad Counsel for Respondent :- G.A. Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Narendra Kumar Johari,J. Heard learned counsel for the petitioners, learned A.G.A. for the State/respondents and perused the material placed on record. This writ petition has been filed with the following main prayers :- "(I) Issue a writ, order or direction in the nature of Mandamus comanding the respondents to conduct the fair investigation against the accused persons/opposite party no.4 to 6 which are named in the F.I.R. in Case Crime No.356/2023, under Section 34, 364, 302, 504, 506 I.P.C. and 3 (1) (dha), 3 (2) (v) SC/ST Act P.S. Baghauli, District Hardoi on dated 1-10-2023 contained as Annexure no.1 to the writ petition in the interest of justice." Learned A.G.A. has produced before this Court instructions sent by the Circle Officer, Baghauli, District Hardoi wherein it has been stated that the investigation is still going on and that from the investigation it appears that alleged incident took place more than two months ago. There was an altercation in an inebriated state between the accused and the petitioner's husband. Section 107/116 Cr.P.C. proceedings were carried out. Record of the same is mentioned in the G.D. The deceased in the same intoxicated states was crossing the railway line and died due to train accident. Instructions are kept on record. 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 :- 28.11.2023 ML/- High Court of Judicature at Allahabad, Lucknow Bench