Madhya Pradesh High Court
Abhay Bangatri vs The State Of Madhya Pradesh on 14 October, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 14th OF OCTOBER, 2024
WRIT PETITION No. 30231 of 2024
ABHAY BANGATRI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Aseem Trivedi - Advocate for the petitioners.
Shri Alok Agnihotri - Government Advocate for the respondents/State.
ORDER
By the instant petition filed under Article 226 of the Constitution of
India, the petitioners pray for the following relief:-
(i) That, direct the respondent No.5 to register the offence
under Explanation 4(j) to Section 2 of Prevention of Insults to
National Honour Act, 1971, Section 2(j) and other relevant
provisions of the National Honour Insult Prevention Act, 1971
against respondent No.2 and his responsible supporters under
Section 173 of the Bhartiya Nagarik Suraksha Sanhita, 2023, in
the interest of justice.
(ii) That, the Hon'ble Court may also issue any other
appropriate writ, direction as the Hon'ble Court deems fit in the
interest of justice."
2. Counsel for the petitioners submits that respondent No.2 who is the State
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Minister for Transport in the State of Madhya Pradesh had conducted a rally
known as 'Tiranga Yatra' in which he has used the national flag of the
country. It is alleged in the petition that the bonnet of the vehicle i.e. Jeep
Car on which respondent No.2 was standing while addressing the public was
wrapped with the national flag. He submits that as per the provisions of
Prevention of Insults to National Honour Act, 1971 (for short, the Act,
1971), it is a crime. He has further pointed out that the Act, 1971 has been
constituted with an object to prevent general public from insulting the
national honour. He submits that Section 2 of the Act, 1971 very
categorically provides Insults to Indian National Flag and Constitution of
India. He further submits that as per the definition provided under Section 2
of the Act, 1971, the respondent No.2 has used the national flag in the
manner which comes within the definition of crime. He has pointed out that
as per Explanation 4(j) of Section 2 of the Act, 1971, it is an offence and,
therefore, FIR should be registered against the respondent No.2 and he
should be punished accordingly. He further submits that petitioner has made
a complaint to the Collector and also to Superintendent of Police by letters
dated 02.09.2024 (Annexure P/5 and Annexure P/6) but no action has been
taken so far.
3. On the other hand, Shri Agnihotri, learned counsel for the
respondent/State has opposed the submission made by counsel for the
petitioners and relied upon the decision passed by the Co-ordinate Bench of
this Court in W.P. No.18731/2024 decided vide order dated 24.07.2024,
dismissing the petition observing therein that petitioner may avail the
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alternative remedy which is available to him. The Co-ordinate Bench relying
upon several Supreme Court decisions has observed as under:-
6. 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
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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."
7. 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
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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 : (SCCpp. 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."
8. 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
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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."
9. 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
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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."
10. 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 9 W.P. No.18731/2024 Cr.P.C without availing
alternative remedy under Section 154(3), 156(3), 190 and
200 Cr.P.C."
4. Considering the averments made in the petition and the
documents filed thereof, it is clear that this petition has been filed by two
petitioners. However, on perusal of record, especially the cause title of
petition creates suspicion for the reason that in the cause title of the petition,
the petitioner No.2 has shown his age as 30 years whereas in the affidavit
submitted by him, he has mentioned his age as 40 years. Similarly, his
address in the cause title is shown at Narsinghpur whereas in the affidavit he
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has mentioned that he is the resident of Katni District. Under such
circumstances, I am of the opinion that petition deserves to be dismissed as
not maintainable for the reason that petitioner No.2 has not shown his
credentials correctly and as such, he is misusing the forum of this Court.
5. The petition accordingly stands dismissed as not maintainable.
(SANJAY DWIVEDI)
JUDGE
Rao
