The main legal point established in the judgment is that the appropriate remedy for F.I.R. non-registration is to approach the Magistrate under Section 156(3) Cr.P.C., as established by relevant case law.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard, Mr. Afaque Rashidi, learned counsel for the petitioner and Ms. Shivani Kapoor, learned counsel for the respondent-State.

2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. Petitioner has filed this instant writ petition under Article 226 of the Constitution of India for direction upon the respondents to lodge F.I.R. on the basis of written complaint made by the petitioner.

4. Grievance of the petitioner is that inspite of written submission of the petitioner, F.I.R. has not been lodged.

5. Learned counsel for the petitioner submits that it is right of the petitioner to lodge F.I.R. and the respondents are liable to lodge F.I.R, which has not been done in the hand in hand.

6. Ms. Shivani Kapoor, learned counsel for the respondent-State submits that approaching the Hon’ble High Court by filing application under Article 226 of the Constitution is not an appropriate remedy. She submits that a proceeding under section 107 Cr.P.C. has already been initiated. He submits that in this type of cases there is remedy under Code of Criminal Procedure. He submits that if an FIR has not been registered, proposed informant should approach before the Magistrate in terms of Code of Criminal Procedure. In support of his contention learned counsel for the respondent-State relied upon judgment in the case of Sakiri Vasu vs. State of Uttar Pradesh and Others, (2008) 2 SCC 409. The Hon’ble Supreme Court has considered this aspect of the matter in the case of Sakiri Vasu (supra) in paragraph 27 and 28 which reads as under:-

“27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.”

7. The Hon’ble Supreme Court has further considered this aspect of the matter in the case of Sudhir Bhaskarrao Tambe vs. Hemant Yaswant Dhage and Others, (2016) 6 SCC 277 wherein judgment passed in Sakri Vasu (supra) was followed. In paragraph 2 of the aforesaid judgment the Hon’ble Apex Court has held as under:-

“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. We have said this is Sakiri Vasu case because wh