Mathura Prasad v. State of U.P. Thru. Addl. Chief Secy. Home Civil Sectt. Lko and Others

Court No. -10 Case :-CRIMINAL MISC. WRIT PETITION No. -9448 of 2023 Petitioner :-Mathura Prasad Respondent :-State Of U.P. Thru. Addl. Chief Secy. Home Civil Sectt. Lko And Others Counsel for Petitioner :-Manoj Kumar Dixit,Badrus Sahar 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/respondents Nos.1 to 3 and perused the record. This writ petition has been filed by the petitioner with the following main prayers :-

(i) issue a writ, order or direction in the nature of Mandamus directing the opposite party no.2 and 3 to conduct proper and fair investigation of the first information report No.327 of 2023, under Sections 498A/304B I.P.C. and Section 3/4 D.P. Act, Police Station Maal, District - Lucknow.

(ii) issue a writ, order of direction in the nature of Mandamus, direct the opposite party no.2 to 4 to arrest the opposite party no.5 to 7 in first information report No. 327 of 2023 under Section498-A/304-B I.P.C. and section 3/4 D.P. Act Police Station Maal District Lucknow." Learned A.G.A. has raised a preliminary objection regarding the second prayer made in the writ petition, saying that no mandamus can be issued as there is no subsisting right with the petitioner to ask for arrest of the opposite party no. 5 to 7. He has produced before this Court instructions sent by Assistant Police Commissioner, Malihabad, Lucknow saying that the husband of the deceased Ravindra Pal, S/o Meva Lal has been arrested and sent to judicial custody. 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 his grievance. With the aforesaid observations, this writ petition stands disposed of. Order Date :- 14.12.2023 ML/- High Court of Judicature at Allahabad, Lucknow Bench