Cannot Invoke Writ Jurisdiction For Registration Of FIR When Alternate Remedy Available: Gujarat High Court

The petitioner argued that despite her representations, she could not get the concerned authorities to register an FIR. Hence, she moved the Court under article 226 of the Constitution.

In its rebuttal, the Respondent State argued that considering the availability of remedies under the Criminal Procedure Code, it is not proper to invoke writ jurisdiction under article 226 of the Constitution. To bolster its argument, the State relied upon the Supreme Court’s judgment in Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409.

In its discussion on the merits of the arguments, the Court first discussed Sakiri Vasu’s case (Supra) and the Apex Court’s judgment in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 where it was 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.PC 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.

Ultimately, it found thusly:

“Applying the aforesaid dictum of law in the facts of the present case, when alternative remedy is available to the informant, this Court is not required to exercise its powers under Article 226 of the Constitution of India.”

The Court disposed of the petition but granted the writ petitioner the liberty to approach the Magisterial Court in the relevant jurisdiction by way of invoking the relevant provision in the CrPC.

Case Title: Ashaben Muljibhai Ghori v. State of Gujarat

Case Citation: 2023 Livelaw (Guj) 29

Coram: Justice Ilesh J. Vora