This writ petition is filed seeking a direction under Article 226 of the Constitution of India for directing the respondent No.3 to make enquiry against
respondents No.3, 4, 5Â and 6 to make an investigation under Section 156(3) of the Cr.P.C. against respondent No.7 and to register a case against
him.
The grievance of the petitioners is that an agreement was executed between the petitioners and respondent No.7 over a land and they have paid
Rs.40,00,000/- to respondent No.7 and also paid an additional expenses of Rs.10,00,000/to him. Respondent No.7 breached the contract and
committed fraud with the petitioners. The petitioners approached several authorities but they did not pay any heed to the complaint of the petitioners.
In Sudhir Bhaskar Rao Tambe Vs. Hemant Yashwant Dhage and others (2016) 6 SCC 277, the Supreme Court referring to the case of Aleque
Padamsee and others Vs. Union of India and others (2007) 6 SCC 171 and Sakri Vasu Vs. State of U.P. (2008) 2 SCC 409 has held :-
“2. This Court has held in Sakiri Vasu Vs. State of U.P.(supra), 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 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 investigating officer, so that a proper
investigation is done in the matter. We have said this in Sakiri Vasu case (supra) 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.
3. 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 alternate his remedy to approach
the Magistrate concerned under Section 156(3) CrPC 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.â€
Similar issue was raised in W.A. No.247/2016, Shweta Bhadauria Vs. State of M.P. and others. The principal issues raised were :-
(i) Whether in the face of remedies u/s 154(3),156(3), 190 & 200 Cr.P.C. writ of mandamus can be issued to police authorities to perform their
statutory duty u/s 154(1) Cr.P.C. in a petition complaining non-registration of FIR despite furnishing first information of commission of cognizable
offence?
(ii) Whether the Constitution Bench decision of theApex Court in Lalita Kumari (supra) is an answer to the above said principal issue No.1 ?
The Division Bench of this Court while deciding the bunch of writ appeals held in para 2.10, 2.11, 3.6 :
2.10. Therefore it can safely be concluded that the Apex Court while interpreting the statutory provision u/s 154 Cr.P.C said nothing further as
regards remedy available to the informant whose information of commission of cognizable offence does not invoke any response from the police.
Thus, the judgment of Lalita Kumari does not lay down any law in respect of remedies available to the informant under Cr.P.C. to be invoked in case
of failure on the part of the police to perform its statutory duty under Section 154(1)/154(3) Cr.P.C. as a sine qua non for seeking writ of mandamus.
2.11. Consequently, the case of Lalita Kumari ofthe Apex Court does not answer the principal issue No.1 framed by this Court.
3.6. The above said discussion makes it clear that there are four different remedies available under Cr.P.C for the informant/victim to initiate
prosecution in respect of the cognizable/noncognizable offence which is alleged in the first information furnished which fails to invoke response from
the police. More so, these statutory remedies cannot be branded as non-efficacious or onerous. Accordingly, informant whose first information does
not lead to registration of offence under Section 154 Cr.P.C is not remedy-less and therefore the constraints exercised by the writ Court while issuing
writ of mandamus come into play. These constraints as enumerated above are self imposed and lie within the domain of discretion rather than rule but
none the less are invariably applied by superior courts while exercising writ jurisdiction. To elaborate, if it is demonstrated that impugned action or
inaction is vitiated by violation of principles of natural justice, or being bereft of jurisdiction or violates any statutory provision or causes breach of
fundamental rights, then nonavailing of alternative remedy cannot restrain the informant or victim to successfully invoke the writ jurisdiction of the
superior Court.
In view of the law laid down in the case of Sudhir Bhaskar Rao Tambe (supra) and in W.A. No. 247/2016 (Shweta Bhadauria Vs. State of M.P.
and others), this writ petition has no merits is dismissed accordingly, leaving it open to the petitioners to avail remedy available to him under Sections
154(3), 156(3), 190 or 200 Cr.P.C.
