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HIGH COURT OF DELHI
Date of Order: 16th March 2022
LALIT RAJ ..... Petitioner
Through: Mr. Shakti Narayan, Advocate
ORS. ..... Respondents
Through: Ms. Monika Arora, Advocate for UOI Mr. Rajesh Mahajan, ASC for
State with Mr. Jyoti Babbar, Advocate with ACP Vijay Singh, P. S. Dwarka North
CHANDRA DHARI SINGH, J. (ORAL)
ORDER
1. The instant writ petition under Article 226 & 227 of the Constitution of India has been filed on behalf of the petitioner inter alia seeking issuance of writ of certiorari for immediate arrest of accused persons and taking appropriate action against the investigation officer for delay in lodging FIR and helping accused persons.
2. Mr. Shakti Narayan learned counsel appearing on behalf of the petitioner submitted that Rs. 32,00,000 (Rupees Thirty-Two Lakhs Only) has been deposited in the account of petitioner/accused as donation. It is 2022:DHC:959 further submitted that the Police have caused a substantial delay of sixteen days in lodging the FIR. They lodged the FIR on 8th December 2021 after the order of the Hon'ble High Court of Delhi in W.P.(CRL) 2433/2021 dated 7th December 2021.
3. Learned counsel further submitted that the police is not investigating the matter as per the mandate of the judgments of the Hon’ble Supreme Court and this High Court. Even after lodging the FIR, the accused have not yet been arrested by the police. It is therefore prayed that an order be passed directing the police to arrest the accused immediately and to initiate the proceedings against the SHO, Dwarka North and ACP, Dwarka Sector 23 as they have not discharged their duty properly.
4. Per contra, Mr. Rajesh Mahajan, learned ASC appearing for State and police officials vehemently opposed the instant writ petition and submitted that the instant petition is nothing but a gross misuse of process. The police has already lodged the FIR and the investigating the matter in accordance with the Code of Criminal Procedure as well as the judgments of the Hon’ble Supreme Court and this High Court.
5. It is submitted that after perusing the writ petition, it is evident that there is no ground available for invoking the extraordinary powers of this Hon’ble Court under Article 226 of the Constitution. Learned ASC further informed this Court that despite several requests, the petitioner has joined the investigation only once i.e. on 22nd February, 2022. On 9th March, 2022, a notice has been issued to the petitioner but he has not joined the investigation.
6. Furthermore, it is submitted that investigation is going to be completed in near future, and the chargesheet will be filed as soon as the investigation is completed. Thus, this is a premature stage to file a writ petition praying for interference in the investigation. Learned ASC further submitted that this petition being a gross misuse of process of law, is devoid of merit and hence, is liable to be dismissed with costs.
7. Heard learned counsels for parties and perused the record.
8. In order to appreciate the case at hand, it is pertinent to refer to the position of law laid down as to the exercise of the writ jurisdiction by the High Court.
9. In the case of Whirlpool Corporation. v. Registrar of Trade Marks (1998) 8 SCC 1, the Apex Court had held as follows:-
10. The Hon’ble Supreme Court in the case of Sudhir Bhaskar Rao Tambe v. Hemant Yashwant Dhage (2016) 6 SCC 277 has considered the law laid down by the Hon’ble Supreme Court in the case of Sakri Vasu v. State of UP (2008) 2 SCC 409 and has held as under:
11. Recently, in Radha Krishan Industries v. State of Himachal Pradesh 2021 SCC OnLine SC 334, the Hon’ble Supreme Court has reiterated and summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. The Hon’ble Supreme Court has observed:
12. The principle that emerges from the aforementioned judgments is that the extraordinary writ jurisdiction is to be exercised only in rare cases or certain contingencies in the interest of justice, including the exceptional cases delineated above.
13. A Division Bench of the Allahabad High Court while deciding the case of Waseem Haider v. State of U. P. Through Principal Secretary Home, Lucknow and Ors. Misc. Bench No. 24492 of 2020, decided on 14th December 2020, was of the opinion that the power to issue a writ of mandamus has its own well defined self-imposed limitations, one of which is the availability of alternative efficacious remedy. In the aforesaid judgment, the Division Bench has exhaustively dealt with the alternative remedies available to a person aggrieved by non-registration of FIR by the police. The Bench inter alia held that: "The writ remedy is extra-ordinary remedy and equitable remedy. Further, the writ Court need not entertain a writ petition merely because a case is made out of alleged inaction or negligent in acting on an issue by an authority vested with power, in these cases to register crime/to complete investigation into crime, if statutorily engrafted remedy is available to seek redress on such grievance. Even if, a case is made out on alleged illegal action by statutory authority, which require redressal, ordinarily writ Court does not entertain the writ petition if the aggrieved person has not availed other remedies, more so, such remedies are incorporated in a statute."
14. While explaining the remedies available under Cr.P.C. the Court also observed: “Code of Criminal Procedure incorporates enough safeguards to victims and accused. It lays down detailed procedure in conducting investigation, filing of final report, taking of cognizance, conducting of trial. It provides enough safeguards against illegal action of police. It is a self contained code and comprehensive on all aspects of criminal law. A complainant has statutorily engrafted remedies to ensure that his complaint is taken to its logical end. Thus, he must first exhaust said remedies and cannot invoke extra-ordinary writ remedy as a matter of course, even when crime is not registered and there is no progress in the investigation.”
15. Thus, a writ to compel the police to conduct an investigation can be denied for not exhausting the alternative and efficacious remedy available under the provisions of the Code, unless the exceptions enumerated in the decision of Apex Court in the aforementioned judgment are satisfied. In the instant case, the petitioner is yet to exercise and exhaust his alternative remedies available under the provisions of the Code including approaching the Magistrate by taking recourse to Section 156(3) of the Code.
16. Further in the instant case, it is an admitted fact that the FIR has already been lodged by the police against the accused. As per the statement of the learned APP, the investigation agency is investigating the matter in accordance with law, and the investigation is about to be completed in near future and the chargesheet will be filed soon after. It has been prayed by the petitioner that the accused be arrested by the police. It is the prerogative of the police/investigation agency to determine whether custodial interrogation is required. Further, the present stage is pre-mature for the writ petition to be entertained since the investigating agency is already investigating in accordance with law. Therefore, there is no need to interfere with the investigation at this stage.
17. In light of the aforesaid, it is settled law that the power to issue writ has its own well-defined limitations imposed by the High Courts, one of which is the availability of alternative efficacious remedy. This Court is also of the opinion that the High Court should not ordinarily, as a matter of routine, exercise its extraordinary writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available. Considering the law laid down by the judicial precedents, the procedure laid down by the Code of Criminal Procedure and as well as the fact that alternate and efficacious remedy is available to the petitioner. Therefore, this Court does not find any merit in the instant petition and hence, is not inclined to entertain the petition for exercising its extraordinary writ jurisdiction.
18. Accordingly, the instant petition stands dismissed.
19. Pending applications, if any, also stand disposed of.
(CHANDRA DHARI SINGH) JUDGE 16th March 2022 gs/@k