Madhya Pradesh High Court
Yawar Ali vs The State Of M.P. on 16 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-JBP:1858
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 16th OF JANUARY, 2025
WRIT PETITION No. 652 of 2025
YAWAR ALI
Versus
THE STATE OF M.P. AND OTHERS
Appearance:
Shri Anil Lala - Advocate for the petitioner.
Shri Yash Soni - Deputy Advocate General for the respondent/State.
ORDER
This petition under Article 226 of Constitution of India has been filed
seeking the following reliefs :-
"7.1 To issue writ in the nature of mandamus directing
the respondent no 1-5 to take appropriate action against
the respondent no. 6-11 as per law.
7.2 Any other suitable relief deemed fit in the facts and
circumstances of the case may also kindly be granted
together with the cost of the present case."
2. It is submitted by counsel for petitioner that petitioner can intimate
the grievances to Registrar Co-operative Societies under Section 59 of the
Co-operative Societies Act, but fairly conceded that no such intimation has
been given to him. Although the petitioner tried to refer to the allegations
made in the complaint, but the person against whom the complaint has been
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made has not been impleaded as a party, therefore, it can't be treated as an
application under Section 59 of Co-operative Societies Act.
3. So far as the direction to the police authorities to lodge the FIR is
concerned, the law is very clear in this regard.
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
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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.
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(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:-
"4 1 . 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
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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:-
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"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
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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."
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9. Accordingly, this petition is dismissed with the following liberties
:-
1. If so advised, the petitioner may file a criminal complaint under
Section 273 of B.N.S.S. before the concerning Magistrate.
2. The petitioner can move an application under Section 59 of the M.P.
Co-operative Societies Act pointing out his grievance.
3. If any application under Section 59 of Co-operative Societies Act is
made then Registrar shall take up that application without getting influenced
or prejudiced by the liberty granted by this order and the application if made
shall be strictly considered in accordance with law.
(G. S. AHLUWALIA)
JUDGE
sjk
