Mohanlal Mahare vs The State Of Madhya Pradesh
2021 Latest Caselaw 734 MP

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              HIGH COURT OF MADHYA PRADESH
                              WP-1985-2021
       (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)


Gwalior, Dated : 16.03.2021

      Shri S.S. Kushwaha, learned counsel for the petitioner.

      Shri   Jitesh   Sharma,    learned   Government Advocate        for

respondent//State.

Shri Rahul Yadav, learned counsel for the respondent Nos. 6&7.

With consent of the parties, the matter is heard finally.

The present petition has been filed being aggrieved by the action

on the part of the respondents/authorities, whereby, they are not taking

any action with respect to written complaint lodged by the petitioner in

the concerning Police Station as well as senior authorities, but the

Police Authorities are not taking any note about the safety and security

of the petitioner, because petitioner is having a serious apprehension of

life and liberty from the private respondents specially from respondent

No.5 who is having criminal antecedents. In such circumstances, he

has submitted several applications before the senior authorities, but

they have not taken any action with respect to registration of FIR. It is

argued that the police authorities are not investigating the matter and

are not arresting the respondents till date as per the provisions under

Sections 156 and 157 of Cr.P.C. In such circumstances, he has relied

upon the judgment passed by the Principal Seat, at Jabalpur in the case

of Rajendra Singh Pawar Vs. State of M.P. and Ors. passed in W.P.

No. 18878/2020 vide order dated 24.12.2020, wherein, certain

guidelines to be followed by the Police and held that Police Officer

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

shall enter complaint in General Diary as per M.P. Police Regulation,

634 and give number of entry to complaints. If cognizable offence is

made out, then First Information Report shall be registered. If

preliminary inquiry is required then, same shall be completed within

fifteen days. In case of delay after giving reasons preliminary inquiry

shall be completed within 42 days and outcome shall be communicated

to the complainant. In case of failure to complete preliminary inquiry

in 42 days and communicate result to complainant, in such

circumstances, the concerning Superintendent of Police shall take an

appropriate action against the concerning Police Officers.

2. It is submitted that petitioner is a BMS Doctor and running a

hospital known as Kaya Hospital situated at 30/15, Kesar Road, Race

Course Road, Morar, District Gwalior. It is submitted that the

petitioner was entered into an agreement with Sonu Mahore for

running the aforesaid Hospital for thirty years. After establishment of

hospital, the private respondent namely Sonu Mahore creating a

nuisance in the smooth and better functioning of the Hospital, so that a

notice dated 13.01.2021 was served upon Sonu Mahore by his counsel

for the petitioner. The petitioner has also served a legal notice to one

Smt. Neeraj Jain and One Gyan Singh who are unauthorizedly creating

nuisance in the smooth and better functioning of the Hospital and also

use the electricity without payment, therefore, the petitioner sent a

notice to the aforesaid persons with a prayer to vacate the premises

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

forthwith, but private respondents hire a anti social element namely

Yadunath Singh Tomar who is impleaded as private respondent No.5 in

the present petition. Later on, Yadunath Singh Tomar along with other

goons entered into the hospital and called to the petitioner and

threatened him with respect to life and liberty. It is submitted that the

said incident has also captured in CCTV Camera, despite of the fact

that neither the authorities are not registering the FIR nor are giving

the protection to the petitioner. In such circumstances, the present

petition has been filed with the following reliefs:-

"(1) That, the respondents/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. (2) That, the respondent-Station House Officer of Police Station, Padav, District Gwalior may kindly be directed to act upon on the complaint Annexure P/5 so made by the petitioner in accordance with law recently held by Principal Seat of this Hon'ble Court in the case of Rajendra Singh Pawar (Supra) in the interest of justice.

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

3. Per contra, counsel for the State has opposed the arguments

made by the petitioner and has argued that in pursuance to the order

dated 09.02.2021, an status report has been filed by the State

authorities, wherein, it is mentioned that an FIR has already been

registered by the Police Authorities bearing Crime No.73/2021 for

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

offences under Sections 294, 506 and 34 of IPC and Sec. 3(1)(Da),

3(1)(Dha) and 3(2)(V-a) of SC/ST Act against the private respondents,

in such circumstances, relief No. 2 claimed by the petitioner has

already been complied with by the State authorities.

4. As far as relief No. 1 with respect to harassment and protection

to the petitioner is concerned it is submitted that the Witness Protection

Scheme, 2018 has been framed by the Home Ministry. The petitioner

has to apply as per the provision of Scheme, 2018 and file an

application to the competent authority in a prescribed format. The

matter can be taken up by the authorities for granting protection to the

petitioner who happens to be witnesses of the case, therefore, no the

reliefs can be extended to the petitioner at this stage in the petition. He

has prayed for dismissal of the petition.

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

6. From perusal of the record it is seen that with respect to incident

an FIR has already been registered by the Police Authorities bearing

Crime No. 73/2021 for offence under Sections 294, 506 and 34 of IPC

and Sec. 3(1)(Da), 3(1)(Dha) and 3(2)(V-a) of SC/ST Act registered at

Police Station Padav, District Gwalior against the private respondents.

7. As far as the relief with respect to the conclusion of investigation

is concerned the provision of Sections, 173, 156 and 157 of Cr.PC. are

required to be seen.

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

173. Report of police officer on completion of investigation.

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, weather with or without sureties;

(g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).

156. Police officer' s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.

157. Procedure for investigation preliminary inquiry.

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that-

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

station shall state in his report his reasons for not fully complying with the requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

8. From perusal of the aforesaid sections it is apparently clear that

the police authorities on receipt of the information with respect to

cognizable offence has to take up the matter and investigate the same

and conclude the investigation without any delay and submit the report

to the concerning Magistrate. They are duty bound to follow such

procedure prescribed in the aforesaid sections without any undue delay.

Therefore, in such circumstances, if the investigation is pending in the

case bearing Crime No.73/2021 registered at Police Station Padav,

District Gwalior, the authorities are directed to conclude the same and

produce the report before the concerning Magistrate at the earliest.

9. As far as the relief claimed by the petitioner with respect to

granting protection to him as he is witness in the offence committed

under Sections 294, 506 and 34 of IPC and Sec. 3(1)(Da), 3(1)(Dha)

and 3(2)(V-a) of SC/ST Act are concerned, the Witness Protection

Scheme, 2018 provides for filing of an application by the witness in

the prescribed format before the competent authorities for seeking

witness protection order. It can be moved by the witness or his family

members or duly engaged counsel or Investigating Officer or Station

House Officer or SDO(P)/Prison and SP concerned and the same shall

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

preferably be got forwarded through the Prosecutor concerned; The

Competent Authorities is defined as the Standing Committee in each

District chaired by District and Sessions Judge with Head of the Police

in the District as Member and Head of the Prosecution in the District as

its Member Secretary.

10. The offences for which such the offences is formulated is

provided under the definition Clause 2(i) which is read as under:

"Offence" means those offences which are punishable with death or life imprisonment or an imprisonment up to seven years and above and also offences punishable under Section 354, 354-A, 354-B, 354-C, 354-D and 509 of IPC."

11. The Procedure for processing the application is also prescribed

in Clause 6 which reads as under:-

"(a) As and when an application is received by the Member Secretary of the Competent Authority, in the prescribed form, it shall forthwith pass an order for calling for the Threat Analysis Report from the ACP/DSP in charge of the concerned Police Sub-Division.

(b) Depending upon the urgency in the matter owing to imminent threat, the Competent Authority can pass orders for interim protection of the witness or his family members during the pendency of the application.

(c) The Threat Analysis Report shall be prepared expeditiously while maintaining full confidentiality and it shall reach the Competent Authority within five working days of receipt of the order.

(d) The Threat Analysis Report shall categorize the threat perception and also include suggestive protection measures for providing adequate protection to the witness or his family.

(e) While processing the application for witness protection, the Competent Authority shall also interact preferably in person and if not possible through electronic means with the witness and/or his family members/employers or any other person deemed fit so as to ascertain the witness protection needs of the witness.

(f) All the hearings on Witness Protection Application shall be

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

held in-camera by the Competent Authority while maintaining full confidentiality.

(g) An application shall be disposed of within five working days of receipt of Threat Analysis Report from the Police authorities.

(h) The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the State/UT or the Trial Court, as the case may be. Overall responsibility of implementation of all witness protection orders passed y the Competent Authority shall lie on the Head of the Police in the State/UT.

However the Witness Protection Order passed by the Competent Authority for change of identity and/or relocation shall be implemented by the Department of Home of the concerned State/UT.

(i) Upon passing of a Witness Protection Order, the witness Protection Cell Shall file a monthly follow-up report before the Competent Authority.

(j) In case, the Competent Authority finds that there is a need to revise the Witness Protection Order or an application is moved in this regard, and upon completion of trial, a fresh Threat Analysis Report shall be called from the ACP/DSP in charge of the concerned Police Sub-Division."

12. In the present case, the petitioner has not filed any application

and the petitioner has sought protection alleging himself from the

threatening given by the accused persons pressurizing him to vacate

the premises out of fear of dire consequences as the petitioner is one of

the witnesses in the criminal case registered against the private

respondents. The petitioner is required to file an application to the

concerning Authorities i.e. the competent authorities as defined under

Clause 2(c) of the Witness Protection Scheme, 2018. The application

on the prescribed format is required to be submitted. As soon as the

application will be filed, then, the same will be processed by the

competent authorities. In such circumstances and looking to the

Witness Protection Scheme 2018, no relief regarding protection can be

HIGH COURT OF MADHYA PRADESH WP-1985-2021 (MOHANLAL MAHORE Vs THE STATE OF MADHYA PRADESH AND OTHERS)

extended to the petitioner at this stage. Petitioner is at liberty to prefer

an application to the competent authority claiming protection.

13. With the aforesaid observation, the petition is disposed off.

                                                   (Vishal Mishra)
LJ*/-                                                  Judge


        LOKENDRA
        JAIN
        2021.03.19
        11:59:48 -07'00'