Asohk Jha vs The State Of Madhya Pradesh
2023 Latest Caselaw 3599 MP

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                           IN    THE    HIGH COURT OF MADHYA PRADESH
                                              AT GWALIOR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                            ON THE 1 st OF MARCH, 2023
                                          WRIT PETITION No. 4234 of 2023

                          BETWEEN:-
                          ASHOK JHA S/O SHRI RAM KISHORE JHA, AGED ABOUT
                          42 YEARS, OCCUPATION: SHOPKEEPER,          R/O
                          DEEDAR COLONY DABRA, DISTRICT GWALIOR
                          (MADHYA PRADESH)

                                                                             .....PETITIONER
                          (BY SHRI VIBHOR KUMAR SAHU - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH ITS
                                PRINCIPAL SECRETARY DEPARTMENT OF HOME
                                VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

                          2.    INSPECTOR GENERAL OF POLICE RANGE
                                G WA L I O R KAMPOO GWALIOR (MADHYA
                                PRADESH)

                          3.    SUPERINTENDENT    OF     POLICE DISTRICT
                                GWALIOR (MADHYA PRADESH)

                          4.    STATION HOUSE OFFICER POLICE STATION
                                DABRA CITY DABRA,    DISTRICT GWALIOR
                                (MADHYA PRADESH)

                          5.    MEERA MANJHI W/O LATE SHRI RAGHUVEER
                                SINGH MANJHI R/O RAGHU NAGAR BALLA KA
                                DERA DABRA, DISTRICT GWALIOR (MADHYA
                                PRADESH)

                          6.    RAMU MANJHI S/O LATE SHRI RAGHUVEER
                                SINGH MANJHI R/O RAGHU NAGAR BALLA KA
                                DERA DABRA, DISTRICT GWALIOR (MADHYA
                                PRADESH)

                                                                           .....RESPONDENTS
                          (BY SHRI S.K. SHARMA - GOVERNMENT ADVOCATE )
Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 03-Mar-23
9:15:43 AM
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                                This petition coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following reliefs :-

(i) That the respondent No.1 to 4 may kindly be directed to take appropriate action over the complaint of the petitioner that is (Annexure P/1 as per law.

(ii) That, any other relief which the Hon'ble Court deems fit in the fact and circumstances of the present case.

It is submitted by the learned counsel for the petitioner that the petitioner has made a complaint 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 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 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 Signature Not Verified Signed by: MOHD AHMAD Signing time: 03-Mar-23 9:15:43 AM

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:-

Signature Not Verified Signed by: MOHD AHMAD Signing time: 03-Mar-23 9:15:43 AM

(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 petitioners have an efficacious and alternative remedy of filing a criminal complaint before the Court of Magistrate/Special Judge, therefore, this petition is dismissed with liberty to file a criminal complaint before the Court of Magistrate/Special Judge.

With aforesaid liberty, the present petition is dismissed.

(G.S. AHLUWALIA) JUDGE Ahmad

Signature Not Verified Signed by: MOHD AHMAD Signing time: 03-Mar-23 9:15:43 AM