Madhya Pradesh High Court
Jabar Singh Lodhi vs The State Of Madhya Pradesh on 22 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 M.Cr.C.No. 7802 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 22nd OF APRIL, 2025
MISC. CRIMINAL CASE No. 7802 of 2025
JABAR SINGH LODHI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Deepak Sharma - Advocate for applicant.
Shri Mohit Shivhare - Public Prosecutor for respondent/State.
ORDER
This application, under Section 528 of BNSS, has been filed seeking the
following reliefs.
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2. It is submitted by counsel for the applicant that daughter of applicant was
pregnant and therefore she was admitted in a hospital where cesarean operation
was done. However, the daughter of the applicant expired. It is alleged that
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daughter of applicant had informed her mother Bhoori that her husband
Hitendra, father-in-law, mother-in-law (respondent Nos.5 to 7 respectively) and
aunt (Bua) were saying that two months' prior to her marriage, her father had
sold an agricultural field worth rupees two crores and therefore they should be
given a Scorpio vehicle. It was also informed by her daughter that after the
ultrasound, respondent Nos. 5 to 7 came to know that she is carrying a female
baby and therefore they were saying that they do not require a girl child.
Accordingly, it was alleged that in connivance with respondent Nos. 3 & 4, the
cesarean operation was unnecessarily done, as a result daughter of the applicant
has expired. It is submitted that although applicant has made a complaint to
Police, but no action has been taken.
3. Heard learned counsel for the applicant.
4. Respondent Nos. 3 and 4 are doctors, who are running a nursing home
and an advanced ultrasound lab. Whether daughter of applicant expired on
account of any negligent act by doctors/respondent Nos. 3 and 4, or not, cannot
be investigated by Police, until and unless a report is given by a body of
experts.
5. The Supreme Court in the case of Jacob Mathew Vs. State of Punjab
reported in (2005) 6 SCC 1 has held as under:-
"48. We sum up our conclusions as under:-
(1) Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice
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G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act
or omission amounting to negligence attributable to the person
sued. The essential components of negligence are three: 'duty',
'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily
calls for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor,
additional considerations apply. A case of occupational
negligence is different from one of professional negligence. A
simple lack of care, an error of judgment or an accident, is not
proof of negligence on the part of a medical professional. So
long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence
merely because a better alternative course or method of
treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice
or procedure which the accused followed. When it comes to the
failure of taking precautions what has to be seen is whether
those precautions were taken which the ordinary experience of
men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the
particular happening cannot be the standard for judging the
alleged negligence. So also, the standard of care, while
assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the
date of trial. Similarly, when the charge of negligence arises out
of failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.
(3) A professional may be held liable for negligence on one of
the two findings: either he was not possessed of the requisite
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skill which he professed to have possessed, or, he did not
exercise, with reasonable competence in the given case, the skill
which he did possess. The standard to be applied for judging,
whether the person charged has been negligent or not, would be
that of an ordinary competent person exercising ordinary skill in
that profession. It is not possible for every professional to
possess the highest level of expertise or skills in that branch
which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis
or the yardstick for judging the performance of the professional
proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in
Bolam v. Friern Hospital Management Committee, [1957] 1
W.L.R. 582, at p.586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown to
exist. For an act to amount to criminal negligence, the degree of
negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree
may provide a ground for action in civil law but cannot form the
basis for prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC,
yet it is settled that in criminal law negligence or recklessness,
to be so held, must be of such a high degree as to be 'gross'. The
expression 'rash or negligent act' as occurring in Section 304A
of the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or
failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses
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and prudence would have done or failed to do. The hazard taken
by the accused doctor should be of such a nature that the injury
which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in
the domain of civil law specially in cases of torts and helps in
determining the onus of proof in actions relating to negligence.
It cannot be pressed in service for determining per se the
liability for negligence within the domain of criminal law. Res
ipsa loquitur has, if at all, a limited application in trial on a
charge of criminal negligence.
52. Statutory Rules or Executive Instructions incorporating
certain guidelines need to be framed and issued by the
Government of India and/or the State Governments in
consultation with the Medical Council of India. So long as it is
not done, we propose to lay down certain guidelines for the
future which should govern the prosecution of doctors for
offences of which criminal rashness or criminal negligence is an
ingredient. A private complaint may not be entertained unless
the complainant has produced prima facie evidence before the
Court in the form of a credible opinion given by another
competent doctor to support the charge of rashness or
negligence on the part of the accused doctor. The investigating
officer should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and
competent medical opinion preferably from a doctor in
government service qualified in that branch of medical practice
who can normally be expected to give an impartial and unbiased
opinion applying Bolam [1957] 1 W.L.R. 582, test to the facts
collected in the investigation. A doctor accused of rashness or
negligence, may not be arrested in a routine manner (simply
because a charge has been levelled against him). Unless his
arrest is necessary for furthering the investigation or for
collecting evidence or unless the investigation officer feels
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satisfied that the doctor proceeded against would not make
himself available to face the prosecution unless arrested, the
arrest may be withheld."
6. The Supreme Court in the case of Kusum Sharma and others vs. Batra
Hospital and Medical Research Center and Others reported in (2010) 3
SCC 480 has held as under:-
89. On scrutiny of the leading cases of medical negligence both
in our country and other countries specially the United
Kingdom, some basic principles emerge in dealing with the
cases of medical negligence. While deciding whether the
medical professional is guilty of medical negligence following
well-known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to
do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and
reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The
negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an
error of judgment.
III. The medical professional is expected to bring a reasonable
degree of skill and knowledge and must exercise a reasonable
degree of care. Neither the very highest nor a very low degree of
care and competence judged in the light of the particular
circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably
competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for
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genuine difference of opinion and one professional doctor is
clearly not negligent merely because his conclusion differs from
that of other professional doctor.
VI. The medical professional is often called upon to adopt a
procedure which involves higher element of risk, but which he
honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher
chances of failure. Just because a professional looking to the
gravity of illness has taken higher element of risk to redeem the
patient out of his/her suffering which did not yield the desired
result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he
performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in
preference to the other one available, he would not be liable if
the course of action chosen by him was acceptable to the
medical profession.
VIII. It would not be conducive to the efficiency of the medical
profession if no doctor could administer medicine without a
halter round his neck.
IX. It is our bounden duty and obligation of the civil society to
ensure that the medical professionals are not unnecessarily
harassed or humiliated so that they can perform their
professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from
such a class of complainants who use criminal process as a tool
for pressurizing the medical professionals/hospitals, particularly
private hospitals or clinics for extracting uncalled for
compensation. Such malicious proceedings deserve to be
discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so
long as they perform their duties with reasonable skill and
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competence and in the interest of the patients. The interest and
welfare of the patients have to be paramount for the medical
professionals
7. The Supreme Court in the case of Martin F. D'Souza v. Mohd. Ishfaq
reported in (2009) 3 SCC 1 has held as under:-
31. As already stated above, the broad general principles of
medical negligence have been laid down in the Supreme Court
judgment in Jacob Mathew v. State of Punjab [(1957) 1 WLR
582 : (1957) 2 All ER 118] . However, these principles can be
indicated briefly here:
The basic principle relating to medical negligence is known as
the Bolam Rule. This was laid down in the judgment of
McNair, J. in Bolam v. Friern Hospital [(1957) 1 WLR 582 :
(1957) 2 All ER 118] as follows : (WLR p. 586)
"... where you get a situation which involves the use of some
special skill or competence, then the test as to whether there has
been negligence or not is not the test of the man on the top of a
Clapham omnibus, because he has not got this special skill. The
test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the
highest expert skill; it is well-established law that it is sufficient
if he exercises the ordinary skill of an ordinary competent man
exercising that particular art."
(emphasis supplied)
Bolam test has been approved by the Supreme Court in Jacob
Mathew case.
65. From the aforementioned principles and decisions relating to
medical negligence, with which we agree, it is evident that
doctors and nursing homes/hospitals need not be unduly worried
about the performance of their functions. The law is a
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watchdog, and not a bloodhound, and as long as doctors do their
duty with reasonable care they will not be held liable even if
their treatment was unsuccessful. However, every doctor
should, for his own interest, carefully read the Code of Medical
Ethics which is part of the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002 issued by the
Medical Council of India under Section 20-A read with Section
3(m) of the Indian Medical Council Act, 1956.
66. Having mentioned the principles and some decisions
relating to medical negligence (with which we respectfully
agree), we may now consider whether the impugned judgment
of the Commission is sustainable. In our opinion the judgment
of the Commission cannot be sustained and deserves to be set
aside.
67. The basic principle relating to the law of medical negligence
is the Bolam Rule which has been quoted above. The test in
fixing negligence is the standard of the ordinary skilled doctor
exercising and professing to have that special skill, but a doctor
need not possess the highest expert skill. Considering the facts
of the case we cannot hold that the appellant was guilty of
medical negligence.
104. Hence courts/Consumer Fora should keep the above factors
in mind when deciding cases related to medical negligence, and
not take a view which would be in fact a disservice to the
public. The decision of this Court in Indian Medical Assn. v.
V.P. Shantha [(1995) 6 SCC 651] should not be understood to
mean that doctors should be harassed merely because their
treatment was unsuccessful or caused some mishap which was
not necessarily due to negligence. In fact in the aforesaid
decision it has been observed (vide SCC para 22) : (V.P.
Shantha case [(1995) 6 SCC 651] , SCC p. 665)
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"22. In the matter of professional liability professions
differ from other occupations for the reason that professions
operate in spheres where success cannot be achieved in every
case and very often success or failure depends upon factors
beyond the professional man's control."
105. It may be mentioned that All India Institute of Medical
Sciences has been doing outstanding research in stem cell
therapy for the last eight years or so for treating patients
suffering from paralysis, terminal cardiac condition,
parkinsonism, etc. though not yet with very notable success.
This does not mean that the work of stem cell therapy should
stop, otherwise science cannot progress.
106. We, therefore, direct that whenever a complaint is received
against a doctor or hospital by the Consumer Fora (whether
District, State or National) or by the criminal court then before
issuing notice to the doctor or hospital against whom the
complaint was made the Consumer Forum or the criminal court
should first refer the matter to a competent doctor or committee
of doctors, specialised in the field relating to which the medical
negligence is attributed, and only after that doctor or committee
reports that there is a prima facie case of medical negligence
should notice be then issued to the doctor/hospital concerned.
This is necessary to avoid harassment to doctors who may not
be ultimately found to be negligent. We further warn the police
officials not to arrest or harass doctors unless the facts clearly
come within the parameters laid down in Jacob Mathew case
[(2005) 6 SCC 1 : 2005 SCC (Cri) 1369], otherwise the
policemen will themselves have to face legal action."
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8. The Supreme Court in the case of Malay Kumar Ganguly v. Dr.
Sukumar Mukherjee and others reported in (2009) 9 SCC 221 has held as
under :-
133. It is noteworthy that standard of proof as also culpability
requirements under Section 304-A of the Penal Code, 1860
stand on an altogether different footing. On comparison of the
provisions of the Penal Code with the thresholds under the tort
law or the Consumer Protection Act, a foundational principle
that the attributes of care and negligence are not similar under
civil and criminal branches of medical negligence law is borne
out. An act which may constitute negligence or even rashness
under torts may not amount to the same under Section 304-A.
175. Criminal medical negligence is governed by Section
304-A of the Penal Code. Section 304-A of the Penal Code
reads as under:
"304-A. Causing death by negligence.--Whoever causes the
death of any person by doing any rash or negligent act not
amounting to culpable homicide shall be punished with
imprisonment of either description for a term which may extend
to two years, or with fine, or with both."
176. The essential ingredients of Section 304-A are as under:
(i) Death of a person.
(ii) Death was caused by the accused during any rash or
negligent act.
(iii) Act does not amount to culpable homicide.
And to prove negligence under criminal law, the prosecution
must prove:
(i) The existence of a duty.
(ii) A breach of the duty causing death.
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(iii) The breach of the duty must be characterised as gross
negligence.
(See R. v. Prentice [1994 QB 302 : (1993) 3 WLR 927 : (1993)
4 All ER 935] .)
177. The question in the instant case would be whether the
respondents are guilty of criminal negligence.
178. Criminal negligence is the failure to exercise duty with
reasonable and proper care and employing precautions guarding
against injury to the public generally or to any individual in
particular. It is, however, well settled that so far as the
negligence alleged to have been caused by medical practitioner
is concerned, to constitute negligence, simple lack of care or an
error of judgment is not sufficient. Negligence must be of a
gross or a very high degree to amount to criminal negligence.
179. Medical science is a complex science. Before an inference
of medical negligence is drawn, the court must hold not only the
existence of negligence but also omission or commission on his
part upon going into the depth of the working of the
professional as also the nature of the job. The cause of death
should be direct or proximate. A distinction must be borne in
mind between civil action and the criminal action.
180. The jurisprudential concept of negligence differs in civil
and criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to
amount to an offence the element of mens rea must be shown to
exist. For an act to amount to criminal negligence, the degree of
negligence should be (sic of a) much high degree. A negligence
which is not of such a high degree may provide a ground for
action in civil law but cannot form the basis for prosecution.
181. To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or
failed to do something which in the given facts and
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circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do."
9. The Supreme Court in the case of S. K. Jhunjhunwala v. Dhanwanti
Kaur and another reported in (2019) 2 SCC 282 has held as under:-
21. So far as this Court is concerned, a three-Judge Bench in
Jacob Mathew v. State of Punjab [Jacob Mathew v. State of
Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] examined this
issue. R.C. Lahoti, C.J. (as he then was) speaking for the Bench
extensively referred to the law laid down in Bolam case [Bolam
v. Friern Hospital Management Committee, (1957) 1 WLR
582 : (1957) 2 All ER 118 (QBD)] and in Eckersley case
[Eckersley v. Binnie, (1988) 18 Con LR 1 (CA)] and placing
reliance on these two decisions observed in his distinctive style
of writing that the classical statement of law in Bolam case
[Bolam v. Friern Hospital Management Committee, (1957) 1
WLR 582 : (1957) 2 All ER 118 (QBD)] has been widely
accepted as decisive of the standard of care required by both of
professional men generally and medical practitioner in
particular and it is invariably cited with approval before the
courts in India and applied as a touchstone to test the pleas of
medical negligence.
22. It was held in Jacob Mathew case [Jacob Mathew v. State of
Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] that a
physician would not assure the patient of full recovery in every
case. A surgeon cannot and does not guarantee that the result of
surgery would invariably be beneficial, much less to the extent
of 100% for the person operated on. The only assurance which
such a professional can give or can be understood to have given
by implication is that he is possessed of the requisite skill in that
branch of profession which he is practising and while
undertaking the performance of the task entrusted to him he
would be exercising his skill with reasonable competence. This
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is what the entire person approaching the professional can
expect. Judged by this standard, a professional may be held
liable for negligence on one of two findings : either he was not
possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable competence
in the given case, the skill which he did not possess.
23. It was further observed in Jacob Mathew case [Jacob
Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri)
1369] that the fact that a defendant charged with negligence
who acted in accord with the general and approved practice is
enough to clear him of the charge. It was held that the standard
of care, when assessing the practice as adopted, is judged in the
light of knowledge available at the time of the incident and not
at the date of trial. It was held that the standard to be applied for
judging whether the person charged has been negligent or not
would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not possible for every
professional to possess the highest level of expertise or skills in
that branch which he practises. His Lordship quoted with
approval the subtle observations of Lord Denning made in
Hucks v. Cole [Hucks v. Cole, (1968) 118 New LJ 469],
namely,
"a medical practitioner was not to be held liable simply
because things went wrong from mischance or misadventure or
through an error of judgment in choosing one reasonable
course of treatment in preference of another. A medical
practitioner would be held liable only where his conduct fell
below that of the standards of a reasonably competent
practitioner in his field".
(emphasis supplied)
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24. In our view, the facts of the case at hand have to be
examined in the light of the aforesaid principle of law with a
view to find out as to whether the appellant, a doctor by
profession and who treated Respondent 1 and performed
surgery on her could be held negligent in performing the general
surgery of her gall bladder on 8- 8-1996."
10. A similar law has been laid down by the Supreme Court in the case of
Kalyani Rajan vs. Indraprastha Apollo Hospital and others, reported in
2024 (1) MPLJ Page 1.
11. Thus, it is clear that unless and until the committee constituted as per the
directions given by the Supreme Court in the case of Jacob Mathew (supra)
gives its report about the medical negligence of the doctors, the doctors should
not be prosecuted.
12. Therefore, no direction can be given to the police to register FIR against
respondent Nos. 3 and 4, until and unless a report is given by a Committee of
Experts regarding medical negligence of respondent Nos 3 and 4.
13. Accordingly, this application, so far as it relates to respondent Nos 3 and
4, is hereby rejected.
14. So far as direction to register FIR against respondent Nos. 5 to 7 is
concerned, they are the husband, father-in-law, and mother-in-law of daughter
of the applicant.
Now the only question for consideration is as to whether an application
under Section 528 of BNSS for registration of FIR is maintainable or not?
15. 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 :-
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"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
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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.
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(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."
16. 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)
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"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."
17. 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:-
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"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."
18. 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
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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
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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."
19. 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."
20. Accordingly, the application is dismissed with liberty to applicant that if
he so desires, then he can approach the concerning Magistrate under Section
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200 of Cr.P.C./Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 for
redressal of his grievance qua applicant Nos. 5 to 7.
(Justice G.S.Ahluwalia)
Judge
(and)
