Madhya Pradesh High Court

Shitanshu Jain vs The State Of Madhya Pradesh on 9 February, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                           1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 9th OF FEBRUARY, 2024
                 WRIT PETITION No. 2558 of 2024

BETWEEN:-

SHITANSHU JAIN S/O SHRI M.C. JAIN, AGED
ABOUT   38  YEARS,   OCCUPATION:    PVT.
PROFESSOR R/O 433, PROFESSOR COLONY,
PATAN ROAD, KARMETA DISTRICT JABALPUR
(MADHYA PRADESH)
                                                  .....PETITIONER
(BY SHRI MAHENDRA PATERIA - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH
      THROUGH THE SECRETARY REVENUE
      DEPARTMENT    VALLABH   BHAWAN
      BHOPAL (MADHYA PRADESH)

2.    SUPERINTENDENT OF POLICE JABALPUR
      JABALPUR (MADHYA PRADESH)

3.    STATION IN    CHARGE OF    MADAVTAL
      JABALPUR       JABALPUR     (MADHYA
      PRADESH)

4.    RAJENDRA      RAI   SUB   REGISTRAR
      JABALPUR     2   JABALPUR  (MADHYA
      PRADESH)

5.    LIPIKA SETH D/O NOT MENTION 973,
      HANUMANTAL WARD DARHAI TEHSIL
      AND DISTRICT JABALPUR (MADHYA
      PRADESH)

6.    SUMIT SAHU S/O NOT MENTION H. NO. 923
      MACHHARHAI ROAD NEAR LORDGANJ
                                         2


             POLICE STATION JABALPUR (MADHYA
             PRADESH)

  7.         AMIT CHAUBEY S/O NOT MENTION LAMTI
             ROAD BEHIND SAI SWEETS KARMETA
             JABALPUR (MADHYA PRADESH)

  8.         SUSHIL KUMAR SAHU S/O NOT MENTION
             H. NO. 1231 GANJIPURA JABALPUR
             (MADHYA PRADESH)

  9.         PIYUSH JAIN S/O NOT MENTION MAHAVIR
             PHOTOCOPY DUTT RESIDENCY OPPOSITE
             RAILWAY STADIUM JABALPUR (MADHYA
             PRADESH)
                                                            .....RESPONDENTS
   (BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)

              This petition coming on for admission this day, the court passed
  the following:
                                        ORDER

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

i) This Hon'ble court may be pleased to direct the respondents to decide the pending complaints dated 28.2.2023 (annexure P/3) and 16.9.2023 (annexure P/4) of the petitioner as expeditiously as possible in accordance with law.

ii) This Hon'ble court may be pleased to direct the respondents to conduct a fresh investigation and proceedings in accordance with law.

iii) This Hon'ble court may by its any writ/order be pleased to pass any other suitable relief deemed fit in the facts and circumstances of the case.

2. It is submitted by counsel for the petitioner that private respondents by playing fraud on the petitioner has sold the Government land, which was already declared surplus under the M.P. Ceiling Act and now the property was purchased by the petitioner by taking loan from the Bank. The petitioner has made complaint to the S.H.O. Police Station, Madhotal, Jabalpur and the Superintendent of Police, Jabalpur but no action has been taken.

3. Per contra, the petition is vehemently opposed by counsel for the State. It is submitted 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 and Ors. 4 W P No. 524 /202 4 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. and Ors.), writ petition for registration of FIR is not maintainable and petitioner has an alternative remedy of filing a complaint under Section 200 of Cr.P.C.

4. Heard the learned counsel for the parties.

5. The moot question for consideration is as to whether writ petition for a direction to the Police Authorities to lodge FIR is maintainable or not ?

6. The Supreme Court in the case of Divine Retreat Centre Vs. State of Kerala and Others reported in (2008) 3 SCC 542 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 non-

compliance 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 [(2004) 7 SCC 768] 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 [(1996) 11 SCC 582 : 1997 SCC (Cri) 303] . It was specifically observed that a writ petition in such cases is not to be entertained."

7. The Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh and Others reported in (2008) 2 SCC 409 has held as under:-

11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the

Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

8. The Supreme Court in the case of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and Others reported in (2016) 6 SCC 277 has held as under:-

2. This Court has held in Sakiri Vasu v. State of U.P. [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 : AIR 2008 SC 907] , that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 : AIR 2008 SC 907] because what we have found in this country is that the High Courts have been flooded with writ petitions praying for

registration of the first information report or praying for a proper investigation.

3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

4. In view of the settled position in Sakiri Vasu case [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 : AIR 2008 SC 907] , the impugned judgment [Hemant Yashwant Dhage v. S.T. Mohite, 2009 SCC OnLine Bom 2251] of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done.

The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.

9. A Division Bench of this Court in the case of Shweta Bhadauria Vs.

State of M.P. & Ors. decided on 20/12/2016 in W.A. No. 247/2016 (Gwalior Bench) has held that a Writ Petition for the purposes of directing the respondents to lodge the FIR is not maintainable and 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.

10. Accordingly, no case is made out for directing police to register the offence. If petitioner is of view that some offence has been committed against him, then he has a remedy to approach the concerned Magistrate under Section 200 of Cr.P.C.

11. With aforesaid liberty, petition is dismissed as not maintainable.

(G.S. AHLUWALIA) HEMANT SARAF JUDGE 2024.02.09 16:27:25 +05'30'