Allahabad High Court
Smt. Kalpana Devi vs State Of U.P. Thru. Prin. Secy. ... on 23 December, 2022
Bench: Rajesh Singh Chauhan, Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 9
Case :- CRIMINAL MISC. WRIT PETITION No. - 9828 of 2022
Petitioner :- Smt. Kalpana Devi
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Others
Counsel for Petitioner :- Suneel Kumar Maurya,Dinesh Kumar
Counsel for Respondent :- G.A.
Hon'ble Rajesh Singh Chauhan,J.
Hon'ble Mohd. Aslam,J.
Heard learned counsel for the petitioner and learned Additional Government Advocate for the State-respondents.
By means of this writ petition, the petitioner has prayed for the following reliefs:-
"(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties particularly the opposite party Nos.2 & 3 to take proper action against the opposite party Nos.4 & 5 on the basis of application dated 16.12.2022 (Annexure No.1).
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties particularly the opposite party No.3 to register the First Information Report against the opposite party Nos.4 & 5 on the basis of application dated 16.12.2022 (Annexure No.1)."
On the aforesaid prayers, learned Additional Government Advocate has drawn attention of this Court towards the decisions of Apex Court rendered in re: Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others reported in (2016) 6 Supreme Court Cases 277 and in re: M. Subramaniam and another vs. S. Janaki and another reported in (2020) 16 Supreme Court Cases 728 and the judgment of a coordinate bench of this Court rendered in re: Waseem Haider vs. State of U.P. and others reported in [2021 (2) ADJ 86 (LB) (DB)] by submitting that when the statutory alternative remedy is provided under the provisions of Section 156 (3) Cr.P.C., no direction can be issued by this Court to register the F.I.R.
Learned Additional Government Advocate has further submitted that an alternative statutory remedy may not be circumvented.
Learned Additional Government Advocate has also submitted that the coordinate bench of this Court in the case of Waseem Haider (supra) has considered the judgment of Apex Court rendered in re: Lalita Kumari. Therefore, as per learned Additional Government Advocate instead of approaching this Court under Article 226 of the Constitution of India the petitioner should approach the competent court of law by filing an application under Section 156 (3) Cr.P.C.
Having heard learned counsel for the parties and having perused the material available on record as well as the dictums of Apex Court rendered in re: Sudhir Bhaskarrao Tambe (supra) and M. Subramaniam and another (supra) and the judgment of a coordinate bench of this Court rendered in re: Waseem Haider (supra), we are of the considered opinion that the petitioner should first approach the learned court of Magistrate by filing appropriate application under Section 156 (3) Cr.P.C. if the F.I.R. of the petitioner has not been registered despite the fact that she has approached the police authorities. No direction for registration of the F.I.R. can be issued under Article 226 of the Constitution of India.
Accordingly, the instant writ petition is disposed of finally at the admission stage giving liberty to the present petitioner to file an appropriate application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned taking all pleas and grounds which are available with her within a period of one week from today and if such application is filed by the petitioner within the aforesaid stipulated time the same shall be considered and disposed of strictly in accordance with law with expedition preferably within a period of two weeks from the date of filing of the application without giving unnecessary adjournments to the parties concerned.
[Mohd. Aslam,J.] [Rajesh Singh Chauhan,J.]
Order Date :- 23.12.2022
Suresh/
