Madhya Pradesh High Court
Pujabai Urf Mango Bai Ahirwar vs The State Of Madhya Pradesh on 28 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P. No.2919/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 28th OF MAY, 2024
MISC. PETITION No. 2919 of 2024
BETWEEN:-
POOJABAI URF MANGO BAI AHIRWAR
W/O SHRI BABULAL AHIRWAR, AGED
ABOUT 35 YEARS, OCCUPATION:
MAJDOORI, R/O GRAM SAIKHEDA
TEHSIL DEVRI ZILA RAISEN (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI NARENDRA NIKHARE- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
DWARA POLICE ADHIKSHAK
RAISEN ZILA RAISEN (MADHYA
PRADESH)
2. THANA PRABHARI THANA DEVRI
JILA RAISEN (MADHYA PRADESH)
3. THANA PRABHARI POLICE THANA
AADIM JATI KALYAN VIBHAG JILA
RAISEN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SWAPNIL GANGULY- DEPUTY ADVOCATE GENERAL)
---------------------------------------------------------------------------------------------------------
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 227 of Constitution of India has been
filed seeking following relief(s):-
"¼v½ ;g fd] ;kfpdkdrkZ }kjk izLrqr ;kfpdk Lohdkj dh
tkdj] ;kfpdkdrkZ ds }kjk dh xbZ f'kdk;r dh fu"i{k tkap
dh tkdj vfHk;qDrx.k ds f[kykQ vijk/k iathc) fd, tkus
gsrq vukosndx.k dks funZsf'kr djus dh d`ik dh tk;sA
¼c½ ;g fd] vU; vuqrks"k tks ekuuh; mPp U;k;ky;
;kfpdk dh izd`fr ds vuqlkj tks mfpr le>s og Hkh
;kfpdkdrkZ dks fnyk;s tksu dh d`ik dh tkosA"
2. It is submitted by counsel for petitioner that in spite of complaint
made by petitioner pointing out the commission of cognizable offence
no FIR has been registered.
3. The moot question for consideration is as to whether this Court in
exercise of power under Article 226 of Constitution of India can direct
the Police Authority to register the FIR or not?
4. The Supreme Court in the case of Aleque Padamsee and others
vs. Union of India & Ors, reported in (2007) 6 SCC 171 has held as
under :-
"7. Whenever any information is received
by the police about the alleged commission
of offence which is a cognizable one there is
a duty to register the FIR. There can be no
dispute on that score. The only question is
whether a writ can be issued to the police
authorities to register the same. The basic
question is as to what course is to be
adopted if the police does not do it. As was
held in All India Institute of Medical
Sciences case [(1996) 11 SCC 582 : 1997
SCC (Cri) 303] and reiterated in Gangadhar
case [(2004) 7 SCC 768 : 2005 SCC (Cri)
404] the remedy available is as set out above
by filing a complaint before the Magistrate.
Though it was faintly suggested that there
was conflict in the views in All India
Institute of Medical Sciences case [(1996)
11 SCC 582 : 1997 SCC (Cri) 303] ,
Gangadhar case [(2004) 7 SCC 768 : 2005
SCC (Cri) 404] , Hari Singh case [(2006) 5
SCC 733 : (2006) 3 SCC (Cri) 63] , Minu
Kumari case [(2006) 4 SCC 359 : (2006) 2
SCC (Cri) 310] and Ramesh Kumari case
[(2006) 2 SCC 677 : (2006) 1 SCC (Cri) 678
: AIR 2006 SC 1322] , we find that the view
expressed in Ramesh Kumari case [(2006) 2
SCC 677 : (2006) 1 SCC (Cri) 678 : AIR
2006 SC 1322] related to the action required
to be taken by the police when any
cognizable offence is brought to its notice.
In Ramesh Kumari case [(2006) 2 SCC 677
: (2006) 1 SCC (Cri) 678 : AIR 2006 SC
1322] the basic issue did not relate to the
methodology to be adopted which was
expressly dealt with in All India Institute of
Medical Sciences case [(1996) 11 SCC 582 :
1997 SCC (Cri) 303] , Gangadhar case
[(2004) 7 SCC 768 : 2005 SCC (Cri) 404] ,
Minu Kumari case [(2006) 4 SCC 359 :
(2006) 2 SCC (Cri) 310] and Hari Singh
case [(2006) 5 SCC 733 : (2006) 3 SCC
(Cri) 63] . The view expressed in Ramesh
Kumari case [(2006) 2 SCC 677 : (2006) 1
SCC (Cri) 678 : AIR 2006 SC 1322] was
reiterated in Lallan Chaudhary v. State of
Bihar [(2006) 12 SCC 229 : (2007) 1 SCC
(Cri) 684 : AIR 2006 SC 3376] . The course
available, when the police does not carry out
the statutory requirements under Section
154 was directly in issue in All India
Institute of Medical Sciences case [(1996)
11 SCC 582 : 1997 SCC (Cri) 303] ,
Gangadhar case [(2004) 7 SCC 768 : 2005
SCC (Cri) 404] , Hari Singh case [(2006) 5
SCC 733 : (2006) 3 SCC (Cri) 63] and Minu
Kumari case [(2006) 4 SCC 359 : (2006) 2
SCC (Cri) 310] . The correct position in law,
therefore, is that the police officials ought to
register the FIR whenever facts brought to
their notice show that cognizable offence
has been made out. In case the police
officials fail to do so, the modalities to be
adopted are as set out in Section 190 read
with Section 200 of the Code. It appears that
in the present case initially the case was
tagged by order dated 24-2-2003 with WP
(C) No. 530 of 2002 and WP (C) No. 221 of
2002. Subsequently, these writ petitions
were delinked from the aforesaid writ
petitions.
8. The writ petitions are finally disposed of
with the following directions:
(1) If any person is aggrieved by the
inaction of the police officials in registering
the FIR, the modalities contained in Section
190 read with Section 200 of the Code are to
be adopted and observed.
(2) It is open to any person aggrieved by
the inaction of the police officials to adopt
the remedy in terms of the aforesaid
provisions.
(3) So far as non-grant of sanction aspect
is concerned, it is for the Government
concerned to deal with the prayer. The
Government concerned would do well to
deal with the matter within three months
from the date of receipt of this order.
(4) We make it clear that we have not
expressed any opinion on the merits of the
case."
5. 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."
6. 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."
7. 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."
8. 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."
9. Accordingly, this petition is dismissed with liberty to petitioner
that if so desire, then he can approach the concerning Magistrate under
Sections 156(3), 200 and 202 of Cr.P.C for redressal of his grievance
(G.S. AHLUWALIA)
JUDGE
AL
Date: 2024.05.28 17:50:46 +05'30'
