# Ram Sagar Patel v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 613
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-21
- **Bench:** Vinod Prasad, Surendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sagar-patel-v-state-of-u-p-and-others-41038
- **Pages:** 6

## Headnote

Constitution
of
India-Article-226-writ
jurisdiction-writ of Mandamus seeking
direction to Police authorities to follow
the provision of Para 486(I) and (III) of
Police regulation-to lodge FIR-petitioner
has remedy either to move application
u/s 156(3) of Cr.P.C. Or to lodge
complaint-extraordinary power cannot
be exercised.

Held: Para 8

After hearing the petitioner's counsel in
support of this petition and the learned
AGA, we are of the considered opinion
that prayer made in this writ petition is
wholly misconceived and the petitioner
614 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
has
alternative
statutory
remedies
available to him. Firstly, he should have
filed an application under Section 156(3)
Cr.P.C., secondly he should have lodged
complaint against malefactors under
Section 190 (I) (a) of the Code. The
tendency of the litigants to approach
High Court or Supreme Court under
Article 226 or 32 of the Constitution to
get their FIR registered have been
depreciated by the Apex Court. This not
only throng dockets of the higher courts
but also erodes the tendency of the
litigants to by pass statutory remedies.
This practice, in our view, should not be
encouraged.
This
writ
power
under
Article 226 of the Constitution of India is
an extraordinary Constitutional power
which should be entertained only when
other statutory remedies have been
exhausted.
Case law discussed:
2008 A.C.C. 689, AIR 2004 Supreme Court
4753, AIR 2006 SC 2464, AIR 2006 SC 1937.

## Text

2 All] Ram Sagar Patel V. State of U.P. and others
613
inside or was murdered by the accused by
burn injuries. The applicant is the
husband of the deceased. She has died
within seven years of her marriage as
unnatural death by burn injury at the
house of her husband. She was subjected
to cruelty due to non-fulfilment of
demand of dowry. Later on, she died due
to burn injuries, which is unnatural death.
The first bail application of the present
applicant has already been rejected by this
Court by passing the detailed order. After
rejecting the first bail application of the
present applicant, there is no fresh and
good
ground
in
the
second
bail
application.

7. It is worthwhile to mention here
that when the first bail application has
already been rejected by the Court and
any ground, which was existed in the first
bail application, the same ground cannot
be taken in another bail application.
Meaning thereby, all the grounds are
existed before moving the first bail
application of the accused, however, if
some grounds were taken and some
grounds were not taken in the first bail
application, the grounds, which were not
taken in the earlier bail application cannot
be taken into consideration by filing the
second bail application after rejecting his
first bail application. After rejecting the
firs bail application, the new and fresh
grounds can only be considered and such
bail may be granted. The rejection order
passed in the first bail application reveals
that the question of locking the door from
outside or inside has already been
considered.
The
general
diary,
as
contended by learned counsel for the
applicant, was already in existence at the
time of moving the first bail application
even
then
this
ground
cannot
be
considered in second bail application,
therefore, there is no fresh and good
ground after rejecting his first bail
application. In such a circumstances, the
contention made by the learned counsel
for the applicant has no force and his
second bail application is also not liable
to be allowed.

8. Consequently, this second bail
application of the present applicant is also
hereby rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2008

BEFORE
THE HON'BLE VINOD PRASAD, J.
THE HON'BLE SURENDRA SINGH, J.

Crl. Misc. Writ Petition 7256 of 2008

Ram Sagar Patel

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Raj Kumar

Counsel for the Respondents:
A.G.A.

Constitution
of
India-Article-226-writ
jurisdiction-writ of Mandamus seeking
direction to Police authorities to follow
the provision of Para 486(I) and (III) of
Police regulation-to lodge FIR-petitioner
has remedy either to move application
u/s 156(3) of Cr.P.C. Or to lodge
complaint-extraordinary power cannot
be exercised.

Held: Para 8

After hearing the petitioner's counsel in
support of this petition and the learned
AGA, we are of the considered opinion
that prayer made in this writ petition is
wholly misconceived and the petitioner
614 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
has
alternative
statutory
remedies
available to him. Firstly, he should have
filed an application under Section 156(3)
Cr.P.C., secondly he should have lodged
complaint against malefactors under
Section 190 (I) (a) of the Code. The
tendency of the litigants to approach
High Court or Supreme Court under
Article 226 or 32 of the Constitution to
get their FIR registered have been
depreciated by the Apex Court. This not
only throng dockets of the higher courts
but also erodes the tendency of the
litigants to by pass statutory remedies.
This practice, in our view, should not be
encouraged.
This
writ
power
under
Article 226 of the Constitution of India is
an extraordinary Constitutional power
which should be entertained only when
other statutory remedies have been
exhausted.
Case law discussed:
2008 A.C.C. 689, AIR 2004 Supreme Court
4753, AIR 2006 SC 2464, AIR 2006 SC 1937.

(Delivered by Hon'ble Surendra Singh, J.)

1. The petitioner, aggrieved by the
inaction on the part of the respondents, to
the present writ petition has invoked our
extraordinary jurisdiction under Article
226 of the Constitution of India praying
for a writ of Mandamus commanding the
respondent no. 2 to follow the paragraph
no. 486(I) and (III) of the U.P. Police
Regulation and register the FIR and
investigate
the
offences
against
respondent nos. 4 to 7.

2. We have heard learned counsel
for the petitioner at a great length and
learned AGA and perused the record of
the writ petition.

3. Encapsulated facts are that the
petitioner is the owner of landed property
near Varanasi Development Authority.
Rakesh Naik, a local M.L.A. And a Land
Mafia in collusion with one Abdul Kalam
got executed one forged will dated
1.6.2002 in favour of one Ram Surat
Patel. On coming to know about the will,
petitioner in 2002 filed a suit for
cancellation of the will deed before Civil
Judge (S.D.) and obtained an injunction to
maintain status qou. It is further alleged
that by way of counter blast to exert
pressure in Civil Suit, Rakesh Naik
lodged an FIR against the petitioner on
24.2.2004 as crime no. 463 of 2004 under
section 8/21 N.D.P.S. Act and also under
Section 3/25 of Arms Act at police station
Cantt, District Varanasi.

4. The petitioner was arrested in the
aforesaid crime. His brother however,
moved an application before respondent
no. 2 for initiating an enquiry which was
conducted by Santosh Kuamr (C.O.)
District Varanasi. The Enquiry Officer
(C.O.) submitted a report on 10.11.2004
to respondent no. 2 in favour of the
petitioner. In the enquiry report C.O. held
that the petitioner has been falsely
implicated in the fake recovery of 400
gms. of heroine, vide aforesaid crime and
thus he found the implication of the
petitioner to be false under Section 8/21
of N.D.P.S. Act and also under Section
3/25 Arms Act.

5. In pursuance of enquiry report the
I.O. (Dy. S.P.) submitted a final report
under Section 169 Cr.P.C. in favour of the
petitioner in the court of Special Judge,
N.D.P.S. Act District Varanasi. The
petitioner was released on bail by the
Special
Judge,
N.D.P.S.
Act
on
8.12.2004. However, the crime was taken
up
for
further
investigation
which
culminated in submission of charge sheet
against the petitioner.
2 All] Ram Sagar Patel V. State of U.P. and others
615

6. The petitioner thereafter preferred
a Criminal Misc. Application No. 9155 of
2006 and Criminal Misc. Application
No.9183 of 2006 before this Hon'ble
Court, both under Section 482 Cr.P.C.,
challenging the aforesaid charge sheet i.e.
Under Section 8/21 N.D.P.S. Act (vide
crime no. 463/04) and also under Section
3/25 Arms Act ( vide crime no. 464/04).
This Court vide its order dated 31.7.2006
and 1.8.2006 stayed the proceedings of
the lower court in the aforesaid Criminal
Misc. Applications which stay order is
still in vogue. Respondent no. 2, however,
initiated
a
departmental
proceedings
against the respondent nos 4 to 7 under
Rule 14 Sub clause (I) of the U.P. Police
Officers
of
the
Subordinate
Rank
(Punishment and Appeal) Rules 1991 in
which the objection of the petitioner was
invited.

7. The petitioner desires and now he
has prayed that the proceedings against
the respondent nos. 4 to 7 be initiated
under the provisions of paragraph no. 486
(I) and (III) of the U.P. Police Regulation
as it was imperative on the part of the
police authorities to lodge a FIR against
them for the offence under IPC and get
the matter investigated. According to the
petitioner, his effort is to get the FIR
registered against the respondent no. 4 to
7, yielded no result, although it should
have been registered as envisaged under
paragraph no. 486 (I) and (III) of the
Police Regulations.

8. After hearing the petitioner's
counsel in support of this petition and the
learned AGA, we are of the considered
opinion that prayer made in this writ
petition is wholly misconceived and the
petitioner
has
alternative
statutory
remedies available to him. Firstly, he
should have filed an application under
Section 156(3) Cr.P.C., secondly he
should have lodged complaint against
malefactors under Section 190 (I) (a) of
the Code. The tendency of the litigants to
approach High Court or Supreme Court
under
Article
226
or
32
of
the
Constitution to get their FIR registered
have been depreciated by the Apex Court.
This not only throng dockets of the higher
courts but also erodes the tendency of the
litigants to by pass statutory remedies.
This practice, in our view, should not be
encouraged. This writ power under
Article 226 of the Constitution of India is
an extraordinary Constitutional power
which should be entertained only when
other statutory remedies have been
exhausted. We do not mean that the
alternative remedy is a bar in exercise of
writ power but what we mean to say is
that it should be exercised only when it is
most desired in rarest of rare cases to
preserve the Fundamental Rights of the
citizens. Our thrust is not so much on
possession of power but is on its exercise.
This matter is no longer res integra. The
Apex Court has held in the following
decisions that for registration of a FIR
victim or aggrieved person has got
alternative remedies. It has been held in
case of Sakiri Vasu Vs. State of U.P.
And others 2008(60) ACC 689 as
follows:-

"11. In this connection we would like
to state that if a person has a grievance
that the police station is not registering his
F.I.R. 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 F.I.R. is still not
registered, or that even after registering it
616 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
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.

Further in the same decision Supreme
Court held as follows:-

13 We would further clarify that even if
an F.I.R. 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 other orders
as he thinks necessary for ensuring a
proper investigation. All these powers a
Magistrate enjoys under 156(3), Cr. P. C.
.............................
15. Section 156(3) provides for a check
by
the
Magistrate
on
the
police
performing its duties under Chapter XII,
Cr. PC. 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.
............................
17. In our opinion section 156(3), Cr.P.C.
is wide enough to include all such powers
in a Magistrate which are necessary for
ensuring a proper investigation, and it
includes the power to order registration of
an F.I. R. and of ordering a proper
investigation if the Magistrate is satisfied
that a proper investigation has not been
done, or is not being done by the police.
Section 156(3),k Cr. P.C., though briefly
worked, in our opinion, is very wide and
it will include all such incidental powers
as are necessary for ensuring a proper
investigation.

9. Further it has been held by the
Apex court in the case of Gangadhar
Janardan
Mhatre
V
State
of
Maharashtra:
AIR
2004
Supreme
Court 4753

"13. When the information is laid
with Police, but no action in that behalf is
taken, the complainant is given power
under Section 190 read with Section 200
of the Code to lay the complaint before
the Magistrate having jurisdiction to take
cognizance of the offence and the
Magistrate is required to enquire into the
complaint as provided in Chapter XV of
the Code. In case the Magistrate after
recording evidence finds a prima facie
case, instead of issuing process to the
accused, he is empowered to direct the
police concerned to investigate into
offence under Chapter XII of the Code
and to submit a report. If he finds that the
complaint does not disclose any offence
to. take further action, he is empowered to
dismiss the complaint under Section 203
of the Code. In case he finds that the
complaint/evidence recorded prima facie
discloses an offence, he is empowered to
take cognizance of the offence and would
issue process to the accused. These
aspects have been highlighted by this
Court in All India Institute of Medical
2 All] Ram Sagar Patel V. State of U.P. and others
617
Sciences
Employees'
Union
(Reg.)
through its President v. Union of India
and others (1997) Supreme Court Cases
(Crl) 303. It was specifically observed
that a writ petition in such cases is not to
be entertained.

It has further been held in the case of
Hari Singh versus State Of U.P., AIR
2006 SC 2464 as follows:-

"4. When the information is laid with
the police, but no action in that behalf is
taken, the complainant can under Section
190 read with Section 200 of the Code lay
the complaint before the Magistrate
having jurisdiction to take cognizance of
the offence and the Magistrate is required
to enquire into the complaint as provided
in Chapter XV of the Code. In case the
Magistrate after recording evidence finds
a prima facie case, instead of issuing
process to the accused, he is empowered
to
direct
the
police
concerned
to
investigate into offence under Chapter XII
of the Code and to submit a report. If he
finds that the complaint does not disclose
any offence to take further action, he is
empowered to dismiss the complaint
under Section 203 of the Code. In case he
finds
that
the
complaint/evidence
recorded prima facie discloses an offence,
he is empowered to take cognizance of the
offence and would issue process to the
accused.
These
aspects
have
been
highlighted by this Court in All India
Institute of Medical Sciences Employees'
Union (Reg.) through its President v.
Union of India and others ((1996) 11 SCC
582). It was specifically observed that a
writ petition in such cases is not to be
entertained".

10. Yet in another decision Minu
kiumari and another versus State of
Bihar and another: AIR 2006 SC 1937
it has been laid down by the apex court as
follows:-

"15. When the information is laid
with the Police, but no action in that
behalf is taken, the complainant is given
power under Section 190 read with
Section 200 of the Code to lay the
complaint before the Magistrate having
jurisdiction to take cognizance of the
offence and the Magistrate is required to
enquire into the complaint as provided in
Chapter XV of the Code. In case the
Magistrate after recording evidence finds
a prima facie case, instead of issuing
process to the accused, he is empowered
to
direct
the
police
concerned
to
investigate into offence under Chapter XII
of the Code and to submit a report. If he
finds that the complaint does not disclose
any offence to take further action, he is
empowered to dismiss the complaint
under Section 203 of the Code. In case he
finds
that
the
complaint/evidence
recorded prima facie discloses an offence,
he is empowered to take cognizance of the
offence and would issue process to the
accused.
These
aspects
have
been
highlighted by this Court in All India
Institute of Medical Sciences Employees'
Union (Reg.) through its President v.
Union of India and others (1996 (11) SCC
582). It was specifically observed that a
writ petition in such cases is not to be
entertained."

In view of the above discussions, this
petition is devoid of merits and hence it is
dismissed.
---------
618 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED ALLAHABAD: 01.07.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.7568 of 2000

Yogesh Kumar Pandey
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.K. Ojha
Sri O.P. Singh
Sri B.D. Mishra
Sri M.S. Rathore
Sri R.K. Singh
Sri I.N. Singh
Sri D.N. Dubey
Sri V.R. Dwivedi

Counsel for the Respondents:
S.C.

Constitution
of
India-Art.226-Service
Law-termination on ground of false
declaration
in
application
formchallenged on the ground of subsequent
acquittal held-subsequent absolvement
of criminal proceeding will not condone
the misconduct of misrepresentationcourt declined to interfere.

Held: Para 2

In my opinion, the said judgment cannot
be relied upon by the petitioner in view
of the successive pronouncements given
by
the
Supreme
Court
in
various
decisions.
Further,
the
decision
in
Qamrul Hoda's case is no longer a good
law as held in Ravindera Singh vs. State
of U.P. decided on 16.5.2005 in writ
petition No.39418 of 2005.
Case law discussed:
1997 (2) UPLBEC 1201, 1996 (11) SCC 605,
2003 (3) SCC 306, 2005 (2) SCC 746, 2003 (1)
AWC 294
(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner was selected as a
constable and was sent for training. At the
time of filling his form, a declaration was
required to be given by the petitioner,
which he did, stating therein that he was
not involved in any criminal proceedings.
The respondents made an enquiry and
found that the petitioner was involved in a
criminal proceeding under Section 307
IPC in case crime No. 27 of 1997.
Consequently, the respondents issued an
order dated 4.11.99 terminating the
services of the petitioner. The petitioner,
being aggrieved, has filed the present writ
petition contending that the punishment of
dismissal
was
harsh
and
did
not
commensurate
with
the
misconduct.
Further, the petitioner was absolved in
that
criminal
proceedings
and
was
acquitted by the Court. In support of his
submission, the petitioner has relied upon
a decision in Qamrul Hoda vs. Chief
Security Commissioner, N.E. Railway,
Gorakhpur, 1997 (2) UPLBEC 1201.

2. In my opinion, the said judgment
cannot be relied upon by the petitioner in
view of the successive pronouncements
given by the Supreme Court in various
decisions. Further, the decision in Qamrul
Hoda's case is no longer a good law as
held in Ravindera Singh vs. State of U.P.
decided on 16.5.2005 in writ petition
No.39418 of 2005.

3.

In
Delhi
Administration
through its Chief Secretary and others
vs. Sushil Kumar, 1996 (11) SCC 605,
the
Supreme
Court
held
that
the
concealment of involvement in the
criminal proceeding in the declaration
form and subsequent absolvement in the
criminal proceedings will not condone the