Munnalal Wadiwa vs The State Of Madhya Pradesh
2024 Latest Caselaw 5394 MP

Madhya Pradesh High Court

Munnalal Wadiwa vs The State Of Madhya Pradesh on 22 February, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                          1                    W.P.No.3867/2024



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 22nd OF FEBRUARY, 2024
              WRIT PETITION No. 3867 of 2024

BETWEEN:-

MUNNALAL WADIWA S/O SHRI KUWARLAL
WADIWA,    AGED    ABOUT   45   YEARS,
OCCUPATION: DISTRICT PRESIDENT M.P.
ADIVASI VIKAS PARISHAD BHOPAL DISTRICT
BRANCH BETUL) R/O MUKAAM HATHI DINGRA
POST KOGAON TEHSIL AND DISTRICT BETUL
(MADHYA PRADESH)
                                               .....PETITIONER
(BY SHRI GAJENDRA SINGH THAKUR - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH
      THROUGH    ITS  CHIEF   SECRETARY
      MANTRALLAYA    DISTRICT    BHOPAL
      (MADHYA PRADESH)

2.    PRINCIPAL SECRETARY : DEPTT. OF
      HIGHER EDUCATION JAN JATIYA KARYA
      VIBHAG MANTRALAYA BHOPAL (MADHYA
      PRADESH)

3.    COMMISSIONER JAN JATIYA KARYA
      VIBHAG SATPURA BHAWAN, BHOPAL
      (MADHYA PRADESH)

4.    LOKAYUKT      MADHYA    PRADESH
      SAMADHAN BHAWAN F-BLOCK OLD
      SECRETARIAT   SULTANIYA  BHOPAL
      (MADHYA PRADESH)

5.    ECONOMIC OFFENCE WING STATE OF
      MADHYA PRADESH THROUGH DIRECTOR
                                 2                       W.P.No.3867/2024



     GENERAL EOW EOW BHAWAN 42 ARERA
     HILLS BHOPAL (MADHYA PRADESH)

6.   COLLECTOR DISTRICT BETUL (M.P.)
     CUMPRESIDENT      DISTRICT   LEVEL
     COMMITTEE     SPECIAL    AND    M.P.
     RESIDENTIAL     ACADEMIC   SOCIETY,
     DISTRICT BETUL (MADHYA PRADESH)

7.   SPECIAL    POLICE    ESTABLISHMENT
     (LOKAYUKT BHOPAL SULTANIYA ROAD )
     SBI SQUARE BHOPAL (MADHYA PRADESH)

8.   ASSISTANT    COMMISSIONER     TRIBAL
     AFFAIRS DEPARTMENT BETUL CUM
     SECRETARY        DISTRICT      LEVEL
     COMMITTEE     (M.P.   SPECIAL    AND
     RESIDENTIAL     ACADEMIC    SOCIETY)
     DISTRICT BETUL (MADHYA PRADESH)
                                                     .....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE)

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

This petition under Article 226 of Constitution of India has been filed seeking following relief(s):-

"(i) Issue a writ in the nature of mandamus directing the Principal Secretary-respondent no.2 and Commissioner-respondent no.3 to initiate investigation in pursuance to the complaint (Annexure P/3) and take appropriate action against the erring officials and contractors, in the interest of justice.

(ii) Issue a writ in the nature of mandamus directing the Lokayukt-respondent no.4, Director General EOW-

respondent no.5 and respondent no.7 to initiate investigation in pursuance to the complaint (Annexure

P/3) and register a criminal offence against the erring official, in the interest of justice.

(iii) Issue any other writ, order or direction as this Hon'ble Court deems fit."

2. It is submitted by counsel for respondents/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 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.

3. Heard the counsel for parties.

4. 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."

5. 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.

6. 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.

7. 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.

8. Accordingly, this petition is dismissed with liberty to petitioner that if the petitioner is so advised, then he may file a criminal complaint under Section 200 of Cr.P.C. before the competent Court of criminal jurisdiction.

(G.S. AHLUWALIA) JUDGE VB* VINAY KUMAR BURMAN 2024.02.23 15:55:28 +05'30'