Monday, August 8, 2022

Allahabad High Court tells petitioner to move magistrate for fair probe

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The Allahabad High Court has ordered a petitioner to move the judicial magistrate for conducting a fair investigation in a case.

The Division Bench of Justice Anjani Kumar Mishra and Justice Deepak Verma passed this order while hearing a Criminal Misc writ petition filed by Ajay Kumar Gupta.

The petition has been filed seeking direction to the respondent authorities to conclude the fair investigation of Case under Sections 420, 467, 468, 406, 506 IPC, P.S Kalyanpur, District Kanpur Nagar.

Contention of the counsel for the petitioner is that the police is acting in collusion with the accused persons and as yet neither the accused persons have been arrested nor any charge sheet has been filed against the accused persons.

The petitioner is aggrieved by the manner of investigation said to have been conducted against private respondents.

The High Court has relied the Apex Court case of Sudhir Bhaskarrao Tambe Vs Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu Vs. State of U.P, (2008) 2 SCC 409, held as follows:

“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 the Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

We 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 be 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) Cr.P.C. 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.”

The Court noted that,

The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) CrPC has also been recognized in the decision of the Apex Court in the case of T.C Thangaraj vs. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu’s case (supra), it has been observed as follows:

“It should also be noted that Section 156 (3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (Sakiri Vasu v. State of U.P.).”

“In view of the law noticed above, we dispose of this petition with liberty to the petitioner to invoke the power of the Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the Apex Court as noticed above,” the order reads.

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