The availability of an alternative efficacious remedy under Section 156(3) Cr.P.C. for seeking proper investigation and action against accused persons, which precludes the filing of a writ petition under Article 226 of the Constitution of India.

JUDGMENT :

S.A. Dharmadhikari, J.

1. In pursuance of the directions issued by the Apex Court and Hon'ble the Chief Justice in the wake of COVID-19 outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government.

2. I.A. No. 264/2021, an application for urgent hearing is disposed of.

3. Heard on the question of admission and interim relief.

4. Grievance of the petitioner in this petition under Article 226 of the Constitution of India is that proper investigation is not being carried out and appropriate action is not being taken against the accused persons upon the report lodged by his son.

5. Learned counsel for the petitioner submits that although upon the report of his son, Crime No. 602/2020 has been registered but the Police in connivance with the miscreants has tried to mitigate the same by registering it only under sections 294, 323, 324 and 506 read with 34 of the IPC. Learned counsel for the petitioner submits that a writ of mandamus may be issued to respondent no. 2/Superintendent of Police to direct respondent no. 3/SHO to take appropriate action against the accused persons.

6. Per contra learned Panel Lawyer contends that the relief prayed in this petition cannot be granted to the petitioner in view of the fact that petitioner is having an alternative efficacious remedy of filing complaint before the Magistrate under section 156(3) of the Cr.P.C.

7. Heard, learned counsel for the parties.

8. In the case of Sakiri Vasu vs. State Of U.P. And Others ((2008)2 SCC 409) has 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 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585 (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.

14. Section 156 (3) states:

"Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

The words 'as abovementioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the