Madhya Pradesh High Court
Manohar Singh vs The State Of Madhya Pradesh on 24 February, 2021
Author: Nandita Dubey
1
HIGH COURT OF MADHYA PRADESH
W.P. No.4233/2021
(Manohar Singh Vs. State of M.P. and others)
Jabalpur, Dated :24.02.2021
Shri D.K Tripathi, learned counsel for the petitioner.
Shri Sheetal Tiwari, learned Panel Lawyer for the
respondent/State.
Heard.
The petitioner has filed this petition under Article 226
of the Constitution of India, seeking the following reliefs:-
(i) to call for the relevant record.
(ii) to direct the respondents No.2 to 4 to take action/decision
on the complaints made by the petitioner and proceed in
accordance with law.
(iii) Any other relief together cost of the petition which this
Hon'ble Court deem fit and proper under the facts and
circumstances of this case may also be awarded in favour
of the petitioner.
It is the case of the petitioner that his father was the
owner of land Khasra No.146, area 8.094 hectares situated
at village Gadarwas. He died on 03.02.2019. The respondent
No.5, on the basis of a forged Will and in collusion with
revenue authorities got the suit land in her favour on
06.11.2019. Against the mutation order, petitioner preferred
an appeal before the SDO, who vide order dated 09.10.2020
allowed the appeal and the land was recorded in the name
of petitioner and his family. During the pendency of the
appeal, respondent No.5 in collusion with respondent
No.6/Bank authorities, illegally obtained loan of
Rs. 12,50,000/- by mortgaging the aforesaid land.
Aggrieved by the fraudulent action of respondent No.5 and
other respondents, petitioner made several complaints to
police authorities to take action against respondent No.5,
but no action has been taken in this regard.
In Sudhir Bhaskar Rao Tambe Vs. Hemant
Yashwant Dhage and others (2016) 6 SCC 277, the
Supreme Court referring to the case of Aleque Padamsee
and others Vs. Union of India and others (2007) 6 SCC
171 and Sakri Vasu Vs. State of U.P. (2008) 2 SCC 409
has held :-
"2. This Court has held in Sakiri Vasu Vs. State of U.P.
(supra), 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 Constitution of India, but to
approach the Magistrate concerned under Section 156(3)
CrPC. If such an application under Section 156(3) CrPC is
made and the Magistrate is, prima facie, satisfied, he can
direct the FIR to be registered, or if it has already been
registered, he can direct proper investigation to be done
which includes in his discretion, if he deems it necessary,
recommending change of investigating officer, so that a
proper investigation is done in the matter. We have said
this in Sakiri Vasu case (supra) 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 alternate his remedy to
approach the Magistrate concerned under Section 156(3)
CrPC 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."
In the case of Shweta Bhadauria Vs. State of M.P.
and others (W.A. No.247/2016) the principal issues raised
were :-
(i) Whether in the face of remedies u/s 154(3), 156(3), 190
& 200 Cr.P.C. writ of mandamus can be issued to police
authorities to perform their statutory duty u/s 154(1)
Cr.P.C. in a petition complaining non-registration of FIR
despite furnishing first information of commission of
cognizable offence?
(ii) Whether the Constitution Bench decision of the Apex
Court in Lalita Kumari Vs. Government of U.P. and
others (2014) 2 SCC 1 is an answer to the above said
principal issue No.1 ?
The Division Bench of this Court while deciding the
bunch of writ appeals held in para 2.10, 2.11, 3.6 :-
2.10. Therefore it can safely be concluded that the Apex
Court while interpreting the statutory provision u/s 154
Cr.P.C said nothing further as regards remedy available to
the informant whose information of commission of
cognizable offence does not invoke any response from the
police. Thus, the judgment of Lalita Kumari does not lay
down any law in respect of remedies available to the
informant under Cr.P.C. to be invoked in case of failure on
the part of the police to perform its statutory duty under
Section 154(1)/154(3) Cr.P.C. as a sine qua non for
seeking writ of mandamus.
2.11. Consequently, the case of Lalita Kumari of the Apex
Court does not answer the principal issue No.1 framed by
this Court.
3.6. The above said discussion makes it clear that there are
four different remedies available under Cr.P.C for the
informant/victim to initiate prosecution in respect of the
cognizable/non-cognizable offence which is alleged in the
first information furnished which fails to invoke response
from the police. More so, these statutory remedies cannot
be branded as non-efficacious or onerous. Accordingly,
informant whose first information does not lead to
registration of offence under Section 154 Cr.P.C is not
remedy-less and therefore the constraints exercised by the
writ Court while issuing writ of mandamus come into play.
These constraints as enumerated above are self imposed
and lie within the domain of discretion rather than rule but
none the less are invariably applied by superior courts
while exercising writ jurisdiction. To elaborate, if it is
demonstrated that impugned action or inaction is vitiated
by violation of principles of natural justice, or being bereft
of jurisdiction or violates any statutory provision or causes
breach of fundamental rights, then non-availing of
alternative remedy cannot restrain the informant or victim
to successfully invoke the writ jurisdiction of the superior
Court.
In the present case, the grievance of the petitioner is
that police is not taking cognizance on his complaint and not
registering the FIR. Hence, in view of the the settled position
of law, this writ petition is disposed of, leaving it open to the
petitioner to avail alternative remedy available to him under
Sections 154(3), 156(3), 190 or 200 Cr.P.C.
With the aforesaid liberty, this petition stands disposed
of.
(Nandita Dubey)
Judge
gn Digitally signed by GEETHA NAIR
Date: 2021.02.25 16:01:16 +05'30'
