Bitthal Ahirwar vs The State Of Madhya Pradesh
2022 Latest Caselaw 11636 MP

Citation : 2022 Latest Caselaw 11636 MP
Judgement Date : 5 September, 2022

Madhya Pradesh High Court

Bitthal Ahirwar vs The State Of Madhya Pradesh on 5 September, 2022

Author: Gurpal Singh Ahluwalia

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             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                BEFORE
             HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                       ON THE 5th OF SEPTEMBER, 2022

                    WRIT PETITION No. 14677 of 2022

        Between:-
        BITTHAL AHIRWAR S/O SHRI PURUSHOTTAM
        AHIRWAR, AGE 32 YEARS OCCUPATION PRIVATE
        JOB R/O VILLAGE KUSHMODA TEHSIL &
        DISTRICT GUNA (MADHYA PRADESH)

                                                                .....APPLICANT
        (BY SHRI GIREESH KUMAR-ADVOCATE)

        AND

1.      STATE OF MADHYA PRADESH THROUGH ITS
        PRINCIPAL SECRETARY, DEPARTMENT OF
        HOME    DEPARTMENT,  GOVERNMENT  OF
        MADHYA    PRADESH   VALLABH  BHAWAN
        BHOPAL.

2.      DIRECTOR GERANIAL OF POLICE, POLICE
        HEADQUARTER BHOPAL (MADHYA PRADESH)

3.      SUPERINTENDENT OF POLICE, GUNA DISTRICT
        GUNA (MADHYA PRADESH)

4.      STATION HOUSE OFFICER, POLICE STATION
        CANT. GUNA DISTRICT GUNA (MADHYA
        PRADESH)

5.      D.S.P. (SPECIAL CELL) S.C./S.T. WELFARE GUNA
        DISTRICT GUNA (MADHYA PRADESH)

                                                            .....RESPONDENTS
        (BY SHRI DEVENDRA CHOUBEY-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 2 of 5

seeking following reliefs :-

(i) The Police Authorities/respondents 1 to 5 kindly be directed to consider the representations Annexure P-1 to P-4 submitted by petitioners to the respondents authorities and also directed to immediately register the FIR against the accused persons/culprits as mentioned in the representations Annexure P-1 to P-4 while arresting the accused persons immediately who had committed fraud with the petitioner by grabbing the money of petitioner amounting to Rs,4,12,759/- by following the guidelines in the case of Lalita Kumari Vs State of UP. in the interest of justice and refunded the money to the petitioner for an amount of Rs, 4,12,759/- from the culprits/accused in the interest of justice.

(ii) Any other relief which this Hon'ble Court deems fit in the

facts and circumstances of the case may also kindly be granted.

(iii) Cost of the petition may kindly be awarded in favour of petitioner.

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 the counsel for the parties. The moot question for consideration is that :-

"Whether a writ petition under Article 226 of the Constitution 3 of 5

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 4 of 5

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."

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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.