Decided on January 15,2020

Chinabhai Virabhai Vaja Appellant


S.H.VORA,J. - (1.) The present petition under Article 226 of the Constitution of India has been filed by the petitioner seeking following direction:- "10(B) Your Lordship be pleased to issue any appropriate writ, order or direction to direct the respondent no.4 to register the complaint of the petitioner dated 01/10/2019 (Annnexure-A) and further be pleased to direct respondent no.1 - State of Gujarat to handover the investigation of the said complaint to Higher Police Authority and directed to make investigation in accordance with law."
(2.) Heard learned advocate for the petitioner.
(3.) The Hon'ble Apex Court in the case of Divine Retreat Centre v/s. State of Kerala and Ors. reported in (2008) 3 SCC 542 has held in para 41 and 42 as under :- "41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and noncompliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code. 42. Even in cases where no action is taken by the police on the information given to them, the informants remedy lies under Sections 190, 200 Cr. P.C., but a Writ Petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre Vs. State of Maharashtra and ors. held: "13. 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 (Regd.) V. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained." ;

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