An alternative remedy is available to & Ors. v. Union of India (1997) Supreme Court Cases (Crl) & Ors.

This Writ Petition is filed seeking to issue a Writ of Mandamus declaring the action of the respondents in not registering the FIR against certain persons basing on the complaint, dated 10.04.2012, made by the petitioner to illegal and arbitrary and respondent No.4 as consequently, direct respondent Nos.1 to 4 to give protection to H.No.2-3-75 (admeasuring 40 x 120 square feet) situated at M.G.Road, Sirpur Kagaznagar, Adilabad District, along with the lives of the petitioner’s family from the hands of the persons mentioned in the complaint. No doubt, when a complaint relating to a cognizable offence is reported to the Police, it is the statutory duty of the Police Officer to register the case. If the duty has not been discharged by the Police, then the petitioner has to file a complaint before the Superintendent of Police concerned under Section 154(3) Cr.P.C. If still, there is inaction on the part of the Police, the petitioner can file a complaint before the competent criminal Court.

An alternative remedy is available to the petitioner in case of non-registering the First Information Report by Police. In a decision of the Apex Court in Sakiri Vasu Vs. State of U.P. and others [1] , it is held thus: “In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 cr. P. C. , then he can approach the Superintendent of Police under Section 154 (3) Cr. P. C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr. P. C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made.

The Magistrate can also under investigation to ensure a proper investigation.” the same provision monitor In another decision in Gangadhar Janardan Mhatre v. State of Maharashtra & others, it is held thus: [2] “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 the Magistrate is required to enquire 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 to investigate into 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 to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and others (1997) Supreme Court Cases (Crl) 303. It was specifically observed that a writ petition in such cases is not to be entertained.” No doubt, alternative remedy is not a bar for invoking the jurisdiction under Article 226 of the Constitution of India. But, the petitioners must show that their case falls under any one of the three categories of cases as held in Harbanslal Sahnia and another v. Indian Oil Corpn. Ltd. & others [3] , wherein it is observed thus: (para 7) “So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion.