Amar Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 5897 MP

1 THE HIGH COURT OF MADHYA PRADESH WP No.5002/2021 Amar Singh vs. State of MP and Ors.

Gwalior, Dated:23/09/2021

Shri Rajeev Shrivastava, Counsel for the petitioner through

video conferencing.

Shri M.P.S. Raghuvanshi, Additional Advocate General for the

State.

This petition under Article 226 of the Constitution of India has

been filed seeking following reliefs :-

"1 That, from the above mentioned peculiar facts and circumstances the police authorities be directed to complete the investigation and to submit the charge sheet or final report before the competent court and also to informed the petitioner about the result of investigation.

2. That, the petitioner may also be provided necessary police protection from the harassment of the culprits who has committed the murder of petitioner brother.

3. That, the cost of the litigation may also be awarded.

4. Any other relief which this Hon'ble Court deem fit in the facts and circumstances of the case may kindly be granted to the petitioner."

It is submitted by the counsel for the petitioner that a Merg

enquiry was registered on the complaint of the petitioner. However,

neither it has culminated into an FIR nor any further

investigation/enquiry is being done by the police.

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 2 THE HIGH COURT OF MADHYA PRADESH WP No.5002/2021 Amar Singh vs. State of MP and Ors.

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 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 3 THE HIGH COURT OF MADHYA PRADESH WP No.5002/2021 Amar Singh vs. State of MP and Ors.

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:-

"(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.

4 THE HIGH COURT OF MADHYA PRADESH WP No.5002/2021 Amar Singh vs. State of MP and Ors.

(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.."

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) Judge Arun* ARUN KUMAR MISHRA 2021.09.24 15:12:48 +05'30'