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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIPUL M. PANCHOLI, J.
IRFANBHAI JUSABBHAI BHANGANI - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CRIMINAL APPLICATION NO. 5636 of 2021
Decided On : 05-07-2021
Constitution of India,1950 - Article 226 – Criminal Procedure Code,1973 - Sections 156(3), 154 and 156(3) - Gujarat Panchayats Act, 1993 – FIR - Dereliction of duty - Alleged irregularity/dereliction of duty on the part of concerned person, District Development Officer had initiated proceedings under the Gujarat Panchayats Act, 1993 and, thereafter, passed an order by which, concerned Sarpanch is directed to pay 20% amount with interest within stipulated time - District Development Officer has observed that concerned Sarpanch has failed to perform his duty in diligent manner and he was negligent while performing his duty submitted that petitioner is having remedy of filing a private complaint before concerned Magistrate Court and, therefore, this petition may not be entertained
Findings of the Court : SSP/SP concerned a change of the investigating SCC officer, so that a proper investigation is done - Magistrate can also monitor investigation, though he cannot himself investigate Parties may produce any material they wish before Magistrate concerned - Court for registration of FIR and investigation into matter by the police. At the same time, our order would not be an impediment in way of first respondent filing documents and papers with police pursuant to complaint and police on being satisfied that a criminal offence is made out would have liberty to register an FIR - Court of metropolitan magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest - Registration of FIR and also ensure a proper investigation in the matter - While approving the aforenoted view, the Supreme Court has set aside the direction of High Court for registration of FIR and has directed respondent thereto to approach court of Magistrate if deem appropriate and necessary - Court that various applications seeking registration of FIR are being filed before this Court directly without approaching the concerned Magistrate under Section 156(3) of the Code - Applications which are directly filed are in direct conflict with observations of Apex Court - Apex Court has expressed its concern with regard to filing of such applications/petitions directly before High Court since filing of such petitions/applications are an unnecessary burden
Result - petition is dismissed
ORDER :
1. This petition is filed under Article 226 of the Constitution of India, with a prayer that respondent No.2 be directed to register a complaint dated 30.01.2021 filed by the petitioner as an FIR.
2. Heard learned advocate Mr.P.P. Majmudar for the petitioner and learned Additional Public Prosecutor Mr.D.M. Devnani for the respondents.
3. Learned advocate for the petitioner has referred the averments made in the memo of the petition and also referred the documents which are placed on record and, thereafter, pointed out that the petitioner has submitted a written application – complaint before respondent No.2. However, till date, the said complaint is not registered as an FIR, therefore, appropriate direction be issued.
4. On other hand, learned Additional Public Prosecutor Mr.D.M. Devnani has opposed this petition and contended that in fact, for the alleged irregularity/dereliction of duty on the part of the concerned person, the District Development Officer had initiated proceedings under the Gujarat Panchayats Act, 1993 and, thereafter, passed an order dated 22.01.2021, by which, the concerned Sarpanch is directed to pay 20% amount of Rs.2,51,150/- i.e. Rs.50,230/- with interest within stipulated time. It is submitted that in the said order, the District Development Officer has observed that the concerned Sarpanch has failed to perform his duty in diligent manner and he was negligent while performing his duty. It is further submitted that the petitioner is having remedy of filing a private complaint before the concerned Magistrate Court and, therefore, this petition may not be entertained.
4.1 Learned Additional Public Prosecutor has placed reliance upon the order dated 17.12.2020 passed by this Court in Special Criminal Application No.6760 of 2020 wherein this Court, after considering the decision rendered by the Honourable Supreme Court, has rejected the said petition on the ground that the concerned petitioner is having alternative remedy of filing a complaint before the concerned Magistrate Court.
5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that limited grievance of the petitioner at this stage is that the written application – complaint dated 30.01.2021 given by the petitioner is not registered as an FIR. It is required to be noted that the petitioner himself has placed on record the order dated 22.01.2021 passed by the District Development Officer, a copy of which is placed on record at Page-48 of the compilation. In the said order, the concerned District Development Officer has observed that Sarpanch has failed to perform his duty in diligent manner and he was negligent while performing his duty. However, if the petitioner is of the view that the concerned Sarpanch has committed some irregularity, it is open for him to file a private complaint before the concerned Magistrate Court.
6. At this stage, the observations made in Paragraphs-3 to 7 of the order dated 17.12.2020 passed by this Court in Special Criminal Application No.6760 of 2020 are required to be kept in view and the same are reproduced as under:
“5.While it is not possible to accept the contention of the appellants on the question of locus standi, we are inclined to accept the contention that the High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the judgment of this Court in Sakiri Vasu v. State Of Uttar Pradesh And Others in which it has been inter alia held as under:
“11. 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 of CrPC, then he can approach the Superi
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