Allahabad High Court
Gaurav Kumar Saxena vs State Of U.P. Thru. Prin. Secy. ... on 13 September, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:58974-DB
Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 7011 of 2023
Petitioner :- Gaurav Kumar Saxena
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Others
Counsel for Petitioner :- Amit Srivastava
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
Case called out. It has been informed that the Advocates are abstaining from judicial work. However, Learned A.G.A. is present for the State/respondents.
The present writ petition has been filed by the petitioner with the following main prayers :
"(i). Issue a writ, order or direction in the nature of mandamus commanding the opposite party No.1-7 to take action against the Cyber Criminals who committed fraud with the petitioner and recover the loss money of Rs.15,00,000/- and Rs.49,999/- from them immediately, as 1 year has already been passed since giving of application to the respondents.
(ii). Issue a writ, order or direction in the nature of mandamus commanding the opposite parties No.1-7, to register a First Information Report against the persons mentioned in the applications in favour of the petitioner in the interest of justice."
It reveals from the pleadings that the petitioner was having two saving accounts in two different banks, i.e. in the State Bank of India and Punjab National Bank bearing Account No.30847871993 and Account No. 1243000400271208 respectively. On 21.09.2022 a fraud was committed and Rs.15.00 Lakhs and Rs.49,999/- was withdrawn from the above mentioned accounts of the petitioner. Then the petitioner moved an application on 22.09.2022 to the cyber cell Lakhimpur Kheri but they referred the petitioner to give application to Cyber Cell, Lucknow as they did not have jurisdiction above Rs.5.00 Lakhs. Thereafter, petitioner moved application on 23.09.2022 to the Cyber Cell, Lucknow but no heed was paid. Petitioner also made complaint on Jan Sunvai but no action has been taken.
In the case of Lalita Kumari vs. Government of U.P. and others; (2014) 2 SCC 1, the Hon'ble Supreme Court has observed that where a cognizable offence is made out in an application/representation by any person, then the respondents/police authorities are duty bound to register the F.I.R. However, no F.I.R. has been registered till date in the case of the petitioner.
Learned A.G.A., on the other hand, has pointed out that a Division Bench of this Court in the case of Waseem Haider Vs. State of U.P. and others, Misc. Bench No.24492 of 2020: 2021 ADJ 86, wherein the Division Bench after considering the observation made by the Supreme Court in the case of Lalita Kumari vs. Government of U.P. and others has observed in paragraph 45 that the informant/victim has remedy under Section 156 (3) Cr.P.C. and writ petitions should ordinarily not be filed for seeking a direction in the nature of mandamus to perform the statutory duty under Section 154 Cr.P.C. This court has perused the paragraph 45 of the judgment as cited by the learned A.G.A. Paragraph 45 of the judgment in Waseem Haider Vs. State of U.P. and others (supra) is quoted herein below:-
"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."
This writ petition is disposed of with a direction to the petitioner to approach the competent court by filing an application under Sections 156 (3) Cr.P.C., if he is aggrieved by any action on the part of respondents.
Order Date :- 13.9.2023
ML/-
