- The Gujarat HC has, in Kameshbhai Niranjanbhai Sopariwala vs State of Gujarat refused to entertain a writ petition under Article 226 of the Constitution and issued directions for the registration of FIR on a complaint lodged by the petitioner, and observed that if such petitions are entertained then the HCs will be flooded and would not be able to do anything else.
- In the instant case, the petitioner was engaged in the business of manufacturing and selling art silk and gray garments and was invited to sell the material to the accused. However, despite several reminders, the accused did not remit Rs.35,87,300 to the petitioner. Later on, they had issued 8 cheques but they were dishonoured.
- By relying upon the decision in Lalita Kumari vs State of UP (2014) SCC and State of Telangana vs Habib Abdullah Jeelani (2017) SCC the Counsel for the petitioner argued that it was obligatory on the part of the respondent authorities to register the complaint against the accused.
- The Hon’ble HC referred to the decision of the Apex Court in the case of M. Subramaniam vs S. Janki (2011) in which the Apex Court had referred to the case of Sakiri Vasu vs State of Uttar Pradesh and ors wherein it was held that if a person has a grievance that the police station is not registering an FIR under section 154 of CrPC, then he can approach the Superintendent of Police under section 156(3). If his grievance is still not resolved, then he can approach the Judicial Magistrate under Section 156(3) of CrPC, and the Magistrate can order the FIR to be registered and can direct that a proper investigation be made into the alleged complaint.
- The Court had also observed that in the case of Mohd Yousuf vs Afaq Jahan the Apex Court had observed that any Judicial Magistrate, before taking cognizance of an offence, can order an investigation under section 156(3) of CrPC. The same view was taken by the Court in Dilawar Singh vs State of Delhi.
- In the case of State of Bihar vs J.A.C. Saldhana it was held that the power of the Magistrate to order further investigation under section 156(3) is independent of the power of the investigating officer to further investigate the case under section 173(8) even after the submission of his report. Thus, the Magistrate can order the reopening of the investigation even after the police submits the final report.
- Referring to the judgement in Sudhir Bhaskarrao Tambe vs Hemant Yashwant Dhage and ors. the Court observed that the complainant must avail of the alternate remedy to approach the Magistrate concerned under section 156(3), and such Magistrate must ensure, upon his prima facie satisfaction, that the FIR is registered and that proper investigation is carried out.
- In light of the aforementioned cases, the writ petition was disallowed since the petitioner had the opportunity to approach the Judicial Magistrate concerned under section 156(3) CrPC.
"Loved reading this piece by Shweta?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
