Allahabad High Court
Satish vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 7 May, 2024
Bench: Vivek Chaudhary, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:35170-DB
Court No. - 9
Case :- CRIMINAL MISC. WRIT PETITION No. - 3226 of 2024
Petitioner :- Satish
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Others
Counsel for Petitioner :- Ram Phal,Divya Singh,Neelam Kumari,Pooja Srivastava,Samar Singh Rawat
Counsel for Respondent :- G.A.
Hon'ble Vivek Chaudhary,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioner, learned A.G.A. for the State/opposite parties and perused the record.
The present writ petition has been filed by the petitioner with the following main prayers :
"(i). writ, order or direction in the nature of Mandamus be issued commanding the opposite party No.2 to get lodged the FIR against the opposite party Nos. 4 & 5 in an appropriate sections in the light of case of Lalita Kumari vs. Government of Uttar Pradesh AIR 2014 SC 187 and take appropriate and strict action against him so that the petitioner could get justice."
Submission of learned counsel for the petitioner is that the petitioner is a bhumidhar and recorded tenure holder of Gata No.380 rakba 0.366 hectares situated at village Pandari, Police Station Kurshi, Tehsil Fatehpur, District Barabanki, whereupon opposite party Nos. 4 & 5 have forcibly taken possession. In this regard, petitioner has moved an application/representation to the District Magistrate, Barabanki as also the Superintendent of Police, Barabanki and S.H.O.concerned on 26.02.2024 to get remove the illegal encroachment of the opposite party No.4 & 5 and to lodge an FIR, however, FIR was not being lodged, hence this petition.
Learned counsel for the petitioner states that in the case of Lalita Kumari vs. Government of U.P. and others; (2014) 2 SCC 1, 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 petitioners.
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. Shri S.N. Tilhari. 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 inaction on the part of opposite party Nos. 4 & 5.
.
(Narendra Kumar Johari,J.) (Vivek Chaudhary,J.)
Order Date :- 7.5.2024
Reena/-
