Alternative remedy is not an absolute bar to a writ petition. : Jharkhand High Court

It is true that an 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, is referred by Justice Sanjay Kumar Dwiwedi of the Jharkhand High Court in the case of Md. Shamin v. State of Jharkhand [ W.P. (Cr.) No. 312 of 2020]

This order was passed in a matter of facts where the petitioner has filed this writ petition under Article 226 of the Indian Constitution seeking a direction to the respondents to lodge an F.I.R. based on the petitioner’s written complaint. The petitioner’s complaint is that, despite the petitioner’s written submission, no F.I.R. has been filed. Learned counsel for the petitioner contends that the petitioner has the right to file an F.I.R. and that the respondents are obligated to file an F.I.R., which they have not done.

The learned counsel for the respondent-State contends that petitioning the Hon’ble High Court under Article 226 of the Constitution is not an appropriate remedy. He claims that a proceeding under Section 107 of the Criminal Procedure Code has already been initiated. He claims that there is a remedy available under the Code of Criminal Procedure in these types of cases. He claims that if no FIR has been filed, the proposed informant should approach the Magistrate in accordance with the Code of Criminal Procedure. In support of his contention, learned counsel for the respondent-State cited the decision in “Sakiri Vasu Vrs. State of Uttar Pradesh and Ors.” reported in (2008) 2 SCC 409.

This aspect of the case was further considered by the Supreme Court in the case of “Sudhir Bhaskarrao Tambe Vrs. Hemant Yaswant Dhage & Others” reported in (2016) 6 SCC 277, in which the judgement in “Sakri Vasu)” (supra) was followed. The Hon’ble Supreme Court has held in paragraph 2 of the aforementioned judgement as follows:

“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) Cr.P.C. If such an application under Section 156(3) Cr.PC is made and the Magistrate is, prima face, 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 a change of the investigating officer so that a proper investigation is done in the matter.” 

The Hon’ble Supreme Court of India cited this decision in the case of “M. Subramaniam & Anr Vrs. S. Janaki & Anr,” reported in (2020) SCC Online SC 341. The issue is now well settled as a result of the Hon’ble Supreme Court’s decision. If the police do not register the FIR, the complainant may approach the Magistrate in accordance with the Code of Criminal Procedure. The complainant has access to this alternative remedy. Given the preceding decisions, and the petitioner’s availability of an alternative remedy, the Court is hesitant to exercise its power under Article 226 of the Indian Constitution.

Accordingly, the instant criminal writ petition stands dismissed with a liberty to the petitioner to approach before the Magistrate concerned by invoking the statutory remedy available in the Cr.P.C. 

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