In the case of Ajay Kumar Pandey v. State of U.P. and
Case Details
Neutral Citation No. - 2024:AHC:115786-DB Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 1593 of 2024 Petitioner :- Smt Chetna Tiwari Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Jyoti Kumar Singh,Vishakha Pande Counsel for Respondent :- C.S.C. Hon'ble Vivek Kumar Birla,J. Hon'ble Arun Kumar Singh Deshwal,J. 1. Instructions filed today is taken on record. 2. Heard Ms Vishakha Pande, learned counsel for the
Legal Reasoning
5. We find that the instructions are detailed in nature and every aspect of the episode up till now has been covered. We therefore find that the investigation is going on. The last location of the victim was traced to Naini bridge when her abandoned car was found standing on the Naini bridge. 6. In the case of Ajay Kumar Pandey versus State of U.P. and 2 others reported in 2021 (2) ADJ 239; this Court has observed that for such relief the remedies under Section 156(3) Cr.P.C. be available. Paragraph nos.15, 16 & 17 of the aforesaid judgment are quoted as under:- "15. In the case of Sudhir Bhaskar Rao Tambe (supra) (paras-2, 3 and 4), Hon'ble Supreme Court following the judgment in the case of Sakiri Vasu (supra) held 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.P.C. 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. Thus, the law laid down by Hon'ble Supreme Court is that after registration of the First Information Report if proper investigation is not being done by the investigating officer, then informant may approach the magistrate concerned under Section 156(3), Cr.P.C. so that proper investigation is done. A three judges bench of Hon'ble Supreme Court in the case of M. Subramaniam and others vs. S. Janki and others (Criminal Appeal No.102 of 2011 decided on 20.03.2020) quoted with approval the law laid down by two judges bench in the case of Sakiri Vasu (supra) and Sudhir Bhaskar (supra) and thus, it affirmed the principles laid down in those judgments that even if a first information report has already been registered, on an application under Section 156(3) Cr.P.C., the Magistrate can direct proper investigation and writ petition for this purpose should not generally be entertained by the High Court in view of the remedy available before the Magistrate under Section 156(3), Cr.P.C. 16. In a recent judgment of this court dated 08.01.2021 in Criminal Misc. Writ Petition No.16288 of 2020 (Ram Shila Gupta vs. State of U.P. and 3 others), a Division Bench of this court has held as under: "In the case of M. Subramanian and another Vs. Janki and another (Criminal Appeal No.102 of 2011) decided on 20.03.2020, the Hon'ble Supreme Court observed that if FIR has already been registered then the Magistrate can direct proper investigation to be done which includes his discretion, if he deems it necessary, recommending change of the investigation officer, so that a proper investigation is done in the matter. The High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation and 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. Hon'ble Supreme Court further held that the complainant must avail of his alternative 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 recommend to the Senior Superintendent of Police/ Superintendent of Police concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate. The observations made by the Hon'ble Supreme Court are also in reiteration of the principle laid down by the Hon'ble Supreme Court in the case of SUDHIR BHASKARRAO TAMBE VS. HEMANT YASHWANT DHAGE AND OTHERS; 2016(6) SCC 277 and in the case of SAKIRI VASU VS. STATE OF UTTAR PRADESH AND OTHERS, 2008(2) SCC 409.
Arguments
petitioner and Sri Ghanshyam Kumar, learned AGA Ist for the State. 3. In pith and substance, the petitioner is seeking direction to respondents no. 2 and 3 to ensure fair, impartial and proper investigation in respect of first information report dated 23.01.2024, registered as Case Crime No.27 of 2024, under Sections-346 & 120-B IPC, Police Station-Civil Lines, City Commissionerate, Prayagraj, District-Prayagraj. 4. The petitioner herein is informant. Husband of the petitioner Vimal Tiwari went missing on 19.01.2024. Initially, the police registered a missing GD entry no.28 dated 20.01.2024 at 12:12 am and, subsequently, the first information report being case crime no.27 of 2024, u/s 346, 120B IPC was registered. Several orders were passed directing the Police Commissioner to look into the matter personally and progress of investigation be placed before this court. The last order in this respect was passed on 03.07.2024. Pursuant thereto, learned AGA has produced before this court a copy of the instructions dated 19.07.2024 under the signatures of the Police Commissioner himself.
Decision
In view of the aforesaid, we do not find any good reason to entertain the writ petition. Consequently, considering the submissions of the learned counsel for the parties, this writ petition is dismissed leaving it open to the petitioner to avail such remedy as may be available to him under law." 17. In view of the discussions made above, we hold that if an informant/ petitioner is aggrieved that proper/ fair investigation is not being done by the investigating officer, then he/ she may approach the concerned Magistrate by moving an application under Section 156(3) Cr.P.C. for appropriate orders instead of invoking writ jurisdiction under Article 226 of the Constitution of India." 7. In a recent judgment dated 17.07.2023, passed by this Court in Criminal Misc. Writ Petition No.10929 of 2023, Pushpa Devi versus State of U.P. and 6 others; this Court has observed as under:- "In view of the law noticed above, we dispose off 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." 8. Accordingly, the present writ petition stands disposed of in the light of aforesaid judgments by grant of liberty to the petitioner to invoke the power of the Magistrate concern under Section 156(3) Cr.P.C. 9. The petitioner is at liberty to annex copy of present petition, copy of the counter affidavit as well as instructions filed today dated 19.07.2024, with the application, if any, filed under Section 156 (3) Cr.P.C. Order Date :- 22.7.2024 S.Chaurasia