Smt Kamlesh Dubey W/O Shri Pradeep ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 5108 MP

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          THE HIGH COURT OF MADHYA PRADESH
                      WP No.16214/2021
           Smt. Kamlesh Dubey vs. State of M.P. & Ors.

Gwalior, Dated : 07.09.2021

      None for the petitioner.

      Shri Deepak Khot, Government Advocate for the State.

      This petition under Article 226 of the Constitution of India has

been filed seeking following reliefs:

             1.    The respondent no.1 to 3 may kindly be

directed to take cognizance on the complaints dated 7.6.2021 Annexure P/1 & P/2 against the respondent no.4, in the interest of justice.

2. The competent police authorities/respondent No.1 to 3 be directed to provide necessary police protection to the life of petitioner.

3. 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.

It is the case of the petitioner that she has made a complaint to

the SHO, Police Station Mahila Thana, Shivpuri but the FIR has not

been registered.

Per contra, it is submitted by the counsel for the State 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

THE HIGH COURT OF MADHYA PRADESH WP No.16214/2021 Smt. Kamlesh Dubey vs. State of M.P. & Ors.

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 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 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

THE HIGH COURT OF MADHYA PRADESH WP No.16214/2021 Smt. Kamlesh Dubey vs. State of M.P. & Ors.

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:-

"(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

THE HIGH COURT OF MADHYA PRADESH WP No.16214/2021 Smt. Kamlesh Dubey vs. State of M.P. & Ors.

availing alternative remedy under Section 154(3), 156(3), 190 and 200 Cr.P.C.."

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.

With aforesaid liberty, the present petition is dismissed.

                                                               (G.S. Ahluwalia)
(alok)                                                               Judge




ALOK KUMAR
2021.09.07 17:41:36 +05'30'