Madhya Pradesh High Court
Rijwana vs The State Of Madhya Pradesh on 2 November, 2023
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 2 nd OF NOVEMBER, 2023
WRIT PETITION No. 27938 of 2023
BETWEEN:-
RIJWANA W/O LATE SHRI LAYIK, AGED-35 YEARS,
OCCUPATION: HOUSEWIFE R/O VILLAGE MALNIYA
POLICE STATION AND TEHSIL LATERI DISTRICT
VIDISHA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI J.P. KUSHWAH- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY MINISTRY OF HOME VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. THE SUPERINTENDENT OF POLICE POLICE
HEADQUARTERS VIDISHA (MADHYA PRADESH)
3. THE POLICE STATION LATERI DISTRICT VIDISHA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIVEK KHEDKAR- AAG FOR THE STATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition under Article 226 of the Constitution of India has not
been directed against any particular order, but has been preferred being
aggrieved by the inaction on the part of the police authorities in not registering
the crime against the accused persons who have been alleged to be involved in
murder of the husband of the petitioner and investigating the matter.
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Nov-23
3:57:18 PM
Apart from the above following reliefs have also been claimed:
A) Preserve the call details of the deceased and
live location which has been send by the
deceased from his mobile no.8959717044 to the
Naseem Mobil no.9617452207.
B. Record the statement of the eye witnesses
which is eye witness of the soon before death.
C. Consider the sale deed of survey no.81/4 area
0.379 of village Bugaai Kala Vidisha, for which
the consideration amount of such deed caused
the murder of petitioner's husband.
D. Preserve and considered the suspected Kamil,
Iliyaaj and Sameer mobile location at the time of
incident i.e.29.08.2023 during 8AM to 12 PM,
because as per petitioner and her son's
statement, they took to the deceased for given
consideration amount.
Learned counsel for the petitioner has vehemently argued that on
29.08.2023 at about 8Am in the morning one Kamil Khan had called the
petitioner's husband on his mobile and had asked him to fetch the amount of
consideration of the sale-deed which was executed by him on 26.06.2023.
Upon his asking, the petitioner reached to Lateri square where his son Sohil was
present and, thereafter, the deceased went along with one Kamil Khan, Iliyaaj
and Samir on their motorcycle and the son of the deceased went to his shop. It
was further argued that as the deceased did not returned till late in the night, the
petitioner tried to call him on his mobile, but he did not picked the phone A
search was being made in the neighbor, with the relatives, but he was not found.
It was further contended that in the meanwhile one Naseem s/o Shri Haneem
told the petitioner that the deceased had sent him live location from his mobile
on his mobile and, thereafter the relatives of the petitioner went to the police,
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Nov-23
3:57:18 PM
but the police authorities did not entertained them, thereafter with the help of
village Sarpanch again the petitioner approached the police and on this
occassion on the basis of the live location sent to the mobile of Naseem, the
dead body of the husband of the petitioner was traced hanging in Aari Jungle
Ghati.
It was further argued that thereafter the police authorities have done
formalities and had not conducted any proper investigation in the matter. It was
also argued that till date the statements of the witnesses have not been recorded,
the call records/live location sent to Naseem had not been seized and presumed,
the suspected persons have not been arrested till date rather no crime till date
has been registered in the matter. Therefore, a prayer has been made that since
the inaction of the respondent authorities is in utter violation of the fundamental
rights of the petitioner as contained under Article 14 of the Constitution of
India, therefore, suitable directions are required to be issued to the police
authorities to look into the matter, register the crime against the accused
persons, arrest them and conduct the investigation properly.
On the contrary Shri Vivek Khedkar, learned AAG while placing reliance
in the matter of Sakiri Vasu vs. State of UP and Ors reported in 2008 (2)
SCC 409 in paras 14 to 16 contended that the relief as claimed by the petitioner
in the present petition is against the mandate given by the Hon'ble Apex Court in
the aforesaid judgment and the proper remedy to the petitioner would be to
approach competent Court of criminal jurisdiction under Section 156 (3) of
Cr.P.C. for redressal of her grievance as in the aforesaid judgment Hon'ble
Apex Court has categorically held that whenever there is a complaint of non-
registration of FIR, proper investigation being not conducted and further
enquiry is necessary in the matter, then the competent authority is Judicial
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Nov-23
3:57:18 PM
Magistrate having jurisdiction. It was, thus, submitted that the present petition is
wholly mis-conceived and deserves to be dismissed.
Heard the counsels for the parties and perused the record.
The law with regard to registration of crime against someone or directing
the police authorities for conducting proper investigation/monitoring the
investigation and directing the police authorities for further investigating the
matter is more well settled. The Hon'ble Apex Court in the matter of Sakiri
Vasu vs. State of UP and Ors reported in 2008 (2) SCC 409 as has been
cited by the learned counsel for the respondent/State in para 14, 15 and 16 has
laid down as under:
14. Section 156 (3) States: Any Magistrate
empowered under Section 190 may order such an
investigation as above mentioned." The words "as
above mentioned" obviously refer to Section 156 (1),
which contemplates investigation by the officer in
charge of the police station.
15. Section 156 (3) provides for a check by the
Magistrate on the police performing its duties under
Chapter XII Cr.P.C. In cases where the Magistrate
finds that the police has not done its duty of
investigating the case at all, or has not done it
satisfactorily, he can issue a direction to the police to
do the investigation properly, and can monitor the
same.
16. The power in the Magistrate to order further
investigation under Section 156 (3) is an
independent power and does not affect the power of
the investigating officer to further investigate the
case even after submission of his report vide Section
173 (8). Hence the Magistrate can order reopening
of the investigation even after the police submits the
final report.
Apart from the aforesaid judgment the Hon'ble Apex Court in number of
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Nov-23
3:57:18 PM
judgments had considered this aspect and had depricated the practice of
preferring the writ petitions under Article 226 of the Constitution of India for the
aforesaid reliefs and had also directed the High Court not to entertain such writ
petitions as the remedy available in such cases lay under the Code of Criminal
Procedure under Section 156(3) before a Court of competent criminal
jurisdiction. Some of the decisions are of Aleque Padamsee and others Vs.
Union of India and others, (2007) 6 SCC 171 and Shweta Bhadauria Vs.
State of M.P. And others, 2017 (1) MPJR 247 has taken a similar view.
Accordingly, this Court finds that the relief which has been claimed by
the petitioner cannot be granted under the writ jurisdiction of this Court. The
petitioner is at liberty to approach competent court of criminal jurisdiction under
the provisions of Cr.P.C for redressal of her grievance.
Accordingly the admission is declined.
(MILIND RAMESH PHADKE)
JUDGE
Chandni
Signature Not Verified
Signed by: CHANDNI
NARWARIYA
Signing time: 03-Nov-23
3:57:18 PM
