Smt. Munni Bai vs The State Of Madhya Pradesh
2021 Latest Caselaw 6288 MP

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          THE HIGH COURT OF MADHYA PRADESH
                     WP No.18117/2021
            Smt. Munni Bai vs. State of M.P. & Ors.

Gwalior, Dated : 01.10.2021

      Shri Harshad Bahirani, Counsel for the petitioner through video

conferencing.

      Shri Deepak Khot, Government Advocate for the State.

      This petition under Article 226 of the Constitution of India has

been filed seeking following reliefs:

                    "A. That, looking to the grievance of the
             petitioner direction may kindly be given to the
             respondent police authorities to conduct fair and

impartial investigation of the case and to register FIR against the accused person.

B. That, other suitable relief which is deem fit in the nature of case may kindly be awarded in favour of the petitioner."

It is submitted by the counsel for the petitioner that the

petitioner has made several complaints to respondent No.4 for

registration of offence but no action has been taken so far and,

accordingly, it is prayed that in the light of the order passed by the

Supreme Court in the case of Neetu Kumar Nagaich vs. State of

Rajasthan & Ors. passed on 16.9.2020 in W.P.(Crl.) No.141/2020

the denovo investigation can be directed.

Per contra, the petition is vehemently opposed by the counsel

for the State. It is submitted that it is well established principle of law

that the writ petition for registration of FIR is not maintainable and if

THE HIGH COURT OF MADHYA PRADESH WP No.18117/2021 Smt. Munni Bai vs. State of M.P. & Ors.

the petitioner has a grievance on account of non-action on the part of

the police authorities, then she has an efficacious remedy of filing a

criminal complaint under Section 200 of Cr.P.C. It is further

submitted that in the light of the judgments passed by the Supreme

Court in the case of Sakiri Vasu vs. State of U.P., reported in (2008)

2 SCC 409, Aleque Padamsee and others Vs. Union of India &

Ors., reported in (2007) 6 SCC 171, Divine Retreat Centre Vs.

State of Kerala and others reported in (2008) 3 SCC 542 and

Division Bench of this Court in Writ Appeal No.247/2016 (Shweta

Bhadauria Vs. State of M.P. & Ors.), this petition is not

maintainable.

Heard the learned counsel for the parties.

The moot question for consideration is that :-

"Whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?"

The Supreme Court in the case of Divine Retreat Centre

(supra) has held as under:-

"41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and

THE HIGH COURT OF MADHYA PRADESH WP No.18117/2021 Smt. Munni Bai vs. State of M.P. & Ors.

noncompliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.

42. Even in cases where no action is taken by the police on the information given to them, the informant's remedy lies under Sections 190, 200 CrPC, but a writ petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre v. State of Maharashtra held: (SCC pp. 774-75, para 13) "13. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd.) v. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained."

The Division Bench of this Court in the case of Shweta

Bhadauria (supra) has held as under:-

THE HIGH COURT OF MADHYA PRADESH WP No.18117/2021 Smt. Munni Bai vs. State of M.P. & Ors.

"(1) Writ of mandamus to compel the police to perform its statutory duty u/s 154 Cr.P.C can be denied to the informant /victim for non-availing of alternative remedy u/Ss. 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.."

So far as the judgment relied upon by the counsel for the

petitioner passed in the case of Neetu Kumar Nagaich (supra) is

concerned, the facts of the said case are completely different. In the

said case it has not been directed that the FIR should have been

registered but the denovo investigation was directed after finding that

the closure report filed by the police was not acceptable as the same

was filed on the ground that although the death of the deceased was

homicidal in nature but there is no clue about the offender.

As the petitioner has an efficacious and alternative remedy of

filing a criminal complaint before the Court of competent jurisdiction,

therefore, this petition is dismissed with liberty to file a criminal

complaint before the Court of competent jurisdiction.

THE HIGH COURT OF MADHYA PRADESH WP No.18117/2021 Smt. Munni Bai vs. State of M.P. & Ors.

With aforesaid liberty, the present petition is dismissed.

                                                         (G.S. Ahluwalia)
(alok)                                                         Judge




 ALOK KUMAR
 2021.10.01 16:45:34 +05'30'