The Delhi High Court has reiterated that it cannot exercise its extraordinary writ jurisdiction ordinarily, if an effective and efficacious remedy is available, while dismissing a plea under Article 226 and 227 of the Constitution, seeking writ of certiorari for immediate arrest of accused persons and action against IO for delay in lodging FIR, and helping them.
A Single-Judge Bench of Justice Chandra Dhari Singh observed, “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.
“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,” opined the High Court and dismissed the petition for being devoid of merits.
The High Court was seized of a petition seeking issuance of writ of Certiorari for immediate arrest of accused persons in FIR No 746/2020, PS Dwarka North, under Sections 376/354A/354B/34 of the Indian Penal Code, 1860 and taking appropriate action against the investigation officer for delay in lodging FIR and helping accused persons.
In fact, the petitioner apprised the bench that the FIR was registered at the intervention of the High Courts order passed in December 2021, but the accused not been arrested and interrogated properly by Investigating Officer.
The High Court after considering the catena of judicial pronouncements by the Apex Court and the High Court, observed, 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 of Criminal Procedure, unless the exceptions enumerated in the decision of the Apex court given in case of “Whirlpool Corporation Vs Registrar of Trade Marks (1998) 8 SCC 1, availability of alternative remedy not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for enforcement of any of the Fundamental Rights or where there has been a violation of the Principles of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged.”
The High Court said, 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.
Further, the High Court also denied to interfere with the investigation because it is at the advance stage. It noted, the FIR has already been lodged against the accused. As per the statement of the APP, the investigating 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.
Furthermore, it denied the prayer of petitioner that the accused may be arrested and held that it is the prerogative of the police/investigating agency to determine whether custodial interrogation is required.