A Bench of Justices Chandra Dhari Singh and Tarun Saxena took note of the police response that allegations made by petitioner Amit Kumar Srivastava were false and made only with an intention to get security for himself.
“Taking into consideration the contents and averments made in the writ petition as well as the counter-affidavit, it is evident that the parties are at variance on the question as to whether the alleged incident had actually taken place,” the Court said in an order delivered on August 12.
The Court also reiterated the settled legal position that when the police fails to register an FIR, the aggrieved person can approach the magistrate under Section 156(3) of the Code of Criminal Procedure (CrPC) or Section 175(3) of Bharatiya Nagarik Suraksha Sanhita (BNSS).
“The Magistrate, upon being prima-facie satisfied, can direct the FIR to be registered, or if it has already been registered, can direct a proper investigation to be conducted, including the power to recommend a change of the investigating officer to ensure a fair and proper investigation,” the Court said.
However, Srivastava had chosen to directly approach the High Court.
In the judgment delivered on August 12, the Court said that without availing the remedy under BNSS, his petition was not maintainable.
“We do not find any reason to invoke the extra-ordinary jurisdiction under Article 226 of the Constitution of India for issuance of order, direction or writ in the nature of Mandamus, as prayed in the instant writ petition. present writ petition,” the Court ruled.