Allahabad High Court
Rafat Ullah Arif vs State Of U.P. Thru. Its Secy. Prin. ... on 13 October, 2023
Bench: Sangeeta Chandra, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:67102-DB
Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 7959 of 2023
Petitioner :- Rafat Ullah Arif
Respondent :- State Of U.P. Thru. Its Secy. Prin. Secy. Home Lko. And Others
Counsel for Petitioner :- Vinay Kumar Tiwari
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Karunesh Singh Pawar,J.
(1) Heard the learned counsel for the petitioner and the learned A.G.A. who appears for the State-respondent nos.1 to 4.
(2) This petition has been filed by the petitioner for the following main prayer:-
"(i) Issue a writ, order or direction in the nature of Mandamus commanding the opposite party No. 2 & 3 to lodge the FIR against the Opposite Party No. 4 to 10 under appropriate sections of IPC.
(ii) Issue a writ, order or direction in the nature of Mandamus commanding the opposite party No. 2 to ensure the protection of the petitioner and his family, in the interest of justice."
(3) It has been submitted by learned counsel for the petitioner that the petitioner started a business of selling old automobiles in District Gonda. The opposite party no. 4 to 10 invested their money in the business and made good profit. After sometime, the petitioner due to losses in the business closed down the business and left with nothing. Now, the opposite parties no. 4 to 10 asked their invested money back and for which they threatened the petitioner. The opposite parties no. 4 to 9 are police officials. The petitioner has also approached the Police, but the F.I.R. has not been lodged. As a result, the petitioner has filed a representation dated 02.09.2023 to the Superintendent of Police, Gonda also, a copy of which has been filed as Annexure 1 to the writ petition
(4) Learned A.G.A. has pointed out that the judgment rendered by the Division Bench of this Court in the case of Waseem Haider Vs. State of U.P. and others reported in (2021) 2 ADJ 86, to say that after considering the law laid down by the Hon'ble Supreme Court in the Lalita Kumari' case (supra), this Court expressed its opinion that the informant has statutory remedy under Section 156 (3) Cr.P.C. or under Section 200 of Cr.P.C. The Paragraph-45 of the said judgment is being quoted hereinbelow:-
"45. Before parting, the conclusion arrived at based on the above discussion and analysis is delineated below for ready reference and convenience :-
(1) Writ of mandamus to compel the police to perform its statutory duty under Section 154 Cr.P.C can be denied to the informant/victim for non-availing of alternative remedy under Sections 154(3), 156(3), 190 and 200 Cr.P.C., unless the four exceptions enumerated in decision of Apex Court in the the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1, come to rescue of the informant / victim.
(2) The verdict of Apex Court in the case of Lalita Kumari Vs. Government of U.P. & Ors. reported in (2014) 2 SCC 1 does not pertain to issue of entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 154 Cr.P.C without availing alternative remedy under Section 154(3), 156(3), 190 and 200 Cr.P.C..
(3) The informant/victim after furnishing first information regarding cognizable offence does not become functus officio for seeking writ of mandamus for compelling the police authorities to perform their statutory duty under Section 154 Cr.P.C in case the FIR is not lodged.
(4) The proposed accused against whom the first information of commission of cognizable offence is made, is not a necessary party to be impleaded in a petition under Article 226 of the Constitution of India seeking issuance of writ of mandamus to compel the police to perform their statutory duty under Section 154 Cr.P.C".
(5) This Court is of the opinion that if the petitioner is aggrieved by non-lodging of the FIR, therefore, he has appropriate remedy of filing a complaint under Section 156 (3) Cr.P.C. or under Section 200 of the Cr.P.C.
(6) This writ petition stands disposed of.
Order Date :- 13.10.2023
Darpan Sharma
