Smt. Jamna Bai vs The State Of Madhya Pradesh
2021 Latest Caselaw 4169 MP

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                    HIGH COURT OF MADHYA PRADESH
                               W.P.No.13549/2021
              (Smt. Jamna Bai Vs. The State of M.P. & Others)

Gwalior, Dated : 11.08.2021

      Shri Shyam Kishor Singh Jadon, learned counsel for the

petitioner.

      Shri M.P.S.Raghuvanshi, learned Additional Advocate General

for the State.

      The present petition under Article 226 of the Constitution of

India is being filed seeking following reliefs:-

              "1.    That, the respondent-police authorities

may kindly be directed to grant protection to the petitioner from the act of threatening of life and liberty to the petitioner by the private respondents for which representation Annexure P/3 is already submitted by the petitioner.

2. That, the respondent-Station House Officer of Police Station Kadwaya, District Ashoknagar may kindly be directed to add offence punishable under Sections 354 and 392 of IPC in the already registered FIR at Crime No.125/2020 dated 08.08.2020 as per the factual incident occurred with the petitioner.

3. That, the respondent no.3- Superintendent of Police, District Ashoknagar further may kindly be directed to take action against the respondent no.4 in accordance with the directives in para 111 (iv) laid down by the Constitutional Bench of Hon'ble the Apex Court in the case of Lalita Kumari (supra).

HIGH COURT OF MADHYA PRADESH W.P.No.13549/2021 (Smt. Jamna Bai Vs. The State of M.P. & Others)

4. Any other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case be granted. Costs be awarded."

Learned counsel for the petitioner submits that the petitioner is a

lady and permanent resident of Village Bhairogarh, Police Station

Kadwaya, District Ashoknagar.. Incident of outraging and modesty and

robbery was committed by the private respondents with the petitioner

and when the petitioner promptly approached before the police station

Kadwaya, District Ashoknagar, however, the police station Kadwaya,

District Ashoknagar has not paid any heed. In such a serious matter

only lodged F.I.R. in the bailable offences under Sections 323, 294,

506 and 34 of IPC at Crime No.125/2020. The petitioner has

approached to the Superintendent of Police, District Ashoknagar by

filing a representation and narrating all the story in writing and met

personally with the S.P.. After filing a representation Annexure P/2,

S.P. Ashoknagar has also not taken any action in the matter and

approximately seven months has lapsed and the police has not taken

any steps in the matter and the S.P., Ashoknagar has also not directed

to the police to add Sections 392 and 354 of IPC along with the section

of criminal trespass in already registered FIR at Crime No.125/2020.

In such circumstances, looking to the serious inaction of the police

authorities, the petitioner is left with no option except to take the

HIGH COURT OF MADHYA PRADESH W.P.No.13549/2021 (Smt. Jamna Bai Vs. The State of M.P. & Others)

shelter of this Hon'ble Court by filing the present petition.

Per contra, learned Additional Advocate General for the State

has contended that no such relief can be granted by this Court in view

of the law laid down by the Hon'ble Supreme Court in catena of

judgments. The petitioner is having remedy under Section 156 (3) of

Cr.P.C. to approach the Court of competent jurisdiction for redressal of

his grievances.

Heard the learned counsel for the parties and perused the record.

The Hon'ble Supreme Court in the case of Sudhir Bhaskar Rao

Tambe vs. Hemant Yashwant Dhage and Others reported in (2016)

6 SCC 277 has considered the law laid down by the Hon'ble Supreme

Court in the case of Sakri Vasu v. State of UP reported in (2008) 2

SCC 409 and has held as under:-

"2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156 (3) Cr.P.C. If such an application under Section 156 (3) Cr.P.C is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has

HIGH COURT OF MADHYA PRADESH W.P.No.13549/2021 (Smt. Jamna Bai Vs. The State of M.P. & Others)

already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

3. We are of the opinion that if the High Courts entertain such writ petitions then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156 (3) Cr.P.C. and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged

HIGH COURT OF MADHYA PRADESH W.P.No.13549/2021 (Smt. Jamna Bai Vs. The State of M.P. & Others)

offence under Section 156 (3) Cr.P.C. and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court."

The same view has been reiterated by the Hon'ble Supreme

Court recently in the case of M. Subramaniyam and Others Vs. S.

Janki and Others, (2020) 16 SCC 728.

Considering the aforesaid law laid down by the Hon'ble Supreme

Court in the aforesaid cases, the remedy available to the petitioner is

before concerning Magistrate under Section 156 (3) of Cr.P.C. or

Section 200 of Cr.P.C..

Accordingly, finding no substance in the petition, it is hereby

dismissed.

The petitioner is at liberty to approach the concerning Magistrate

by way of filing application u/s. 156 (3) of Cr.P.C or by filing of

private complaint under Section 200 of Cr.P.C., if so advised.

E-copy of this order be provided to the petitioner and it is made

HIGH COURT OF MADHYA PRADESH W.P.No.13549/2021 (Smt. Jamna Bai Vs. The State of M.P. & Others)

clear that E-copy of this order shall be treated as certified copy for

practical purposes in respect of this order.

                                                                (Vishal Mishra)
AK/-                                                                Judge
       ANAND KUMAR
       2021.08.12 11:58:59 +05'30'