Rakesh Ranjan v. The State of Bihar & Ors.

institute first information report (hereinafter referred to as “the FIR”) and make investigation of the case pursuant to the written complaint of the petitioner dated 4th March, 2012 as contained in Annexure-3 to the writ petition. In my view, the writ petition thoroughly misconceived. Section 154 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) which deals with registration of the FIR reads as under-: “154. Information in cognizable cases:- (1) Every information relating to the commission of a cognizable offence, if Patna High Court MJC No.3286 of 2013 (2) dt.26-07-2013 3 given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every information, whether given writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred in sub-section (1) may send substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that information discloses commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in Patna High Court MJC No.3286 of 2013 (2) dt.26-07-2013 4 relation to that offence.” In the present case there is no averment that the petitioner ever approached the officer-in-charge of the concerned police station to register his FIR. It has also not been pleaded that the officer-in-charge of the police station refused to record the information given by the petitioner.

Apparently, the petitioner has resorted to his remedy in terms of Clause (3) of section 154 of the Code without complying with the requirements of section 154(1) of the Code. Moreover, in case, pursuant to the written report submitted to the Superintendent of Police in respect of a cognizable offence the police failed to take any action, the petitioner may have approached the superior officers of police in this regard under Section 36 of the Code. Despite that, if the FIR was not registered and investigation was not taken up, the petitioner could have filed a complaint under Section 190 read with Section 200 of the Code before the Magistrate concerned, who may have either inquired into the complaint himself or directed the police to investigate the case in terms of Section 156(3) of the Code. In Gangadhar Janardan Mhatre v. State of Maharashtra and Others since reported in (2004) 7 SCC 768, the Apex Court in paragraph 13 held as under:- Patna High Court MJC No.3286 of 2013 (2) dt.26-07-2013 5 “13.

When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned investigate offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process the accused.

These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees’ Union (Regd.) v. Union of India. It was specifically observed that a writ petition in such cases Patna High Court MJC No.3286 of 2013 (2) dt.26-07-2013 6 is not to be entertained.” In Sakiri Vasu v. State of Uttar Pradesh & Others since reported in (2008) 2 SCC 409, the Apex Court in paragraphs 24 to 28 held as under:-

In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, is an implied power Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision.

We have elaborated on the above matter because we often find that when someone has a grievance that his F.I.R. has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 CrPC. We are Patna High Court MJC No.3286 of 2013 (2) dt.26-07-2013 7 of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 CrPC. before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3).

If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained there are so many alternative remedies?

As we have already observed above, Patna High Court MJC No.3286 of 2013 (2) dt.26-07-2013 8 the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.

It is true that 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.” For the reasons discussed, hereinabove, and the law laid down by the Apex Court, in my view, for the relief prayed Patna High Court MJC No.3286 of 2013 (2) dt.26-07-2013 9 for in the present application, a writ petition is not an appropriate remedy. dismissed. In that view of the matter, the application is Md.S./- (Ashwani Kumar Singh, J)