Madhya Pradesh High Court
Neha Sikarwar vs The State Of Madhya Pradesh on 19 July, 2022
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19TH OF JULY, 2022
WRIT PETITION NO. 14509 OF 2022
Between:-
NEHA SIKARWAR W/O SANDEEP
SINGH SIKARWAR D/O RAJESH
SINGH CHAUHAN, AGED 24
YEARS, OCCUPATION NOTHING,
R/O AT PRESENT GALLA MANDI,
GANJ KILA ROAD, GWALIOR
(MADHYA PRADESH)
........PETITIONER
(BY SHRI N.K. SAXENA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL
SECRETARY, HOME
DEPARTMENT, VALLABH BHAWAN
BHOPAL
2. COLLECTOR, DISTRICT GWALIOR
(MADHYA PRADESH)
3. SUPERINTENDENT OF POLICE,
GWALIOR (MADHYA PRADESH)
4. MAHILA POLICE THANA
THROUGH INCHARGE POLICE
STATION MAHILA THANA PADAV,
2
GWALIOR
5. SANDEEP SINGH SIKARWAR S/O
SHRI DINESH SINGH SIKARWAR,
AGED 27 YEARS, OCCUPATION
BUSINESS, R/O 990 FIRST BLOCK,
KANSANA KOTHI KE PAS,
SHATADIPURAM, GWALIOR
(MADHYA PRADESH)
........RESPONDENTS
(BY SHRI DEVENDRA CHAUBEY - GOVERNMENT
ADVOCATE)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has
been filed seeking following reliefs :-
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It is submitted that on the report of the petitioner, no action is
being taken by police authorities.
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 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 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
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 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
(alok)
ALOK KUMAR
2022.07.19 19:00:07 +05'30'
