Madhya Pradesh High Court
Brajesh Chandra Mishra vs The State Of Madhya Pradesh on 1 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:7458
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 1 st OF APRIL, 2025
WRIT PETITION No. 10000 of 2025
BRAJESH CHANDRA MISHRA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Brajesh Chandra Mishra - Petitioner present in person.
Mr. S. S. Kushwaha - Govt. Advocate for State.
ORDER
This petition under Article 226 of Constitution of India has been filed
seeking following reliefs :-
“7.1. आयु नगर पािलक िनगम को ीमान कले टर के आदे श दनांक
13/01/2023 के अंतगत तीन ब दओ
ु ं के िनदश का पालन करने हे तु आदे िशत कया
जावे।
7.2. आयु नगर पािलक िनगम वािलयर को आदे िशत कया जावे क,
यशोदा रे जीडसी के सम त अित मण को तोडा / हटाया जाकर को का वकासकायपूण कर उिचत िनयोजन कया जावे है ।
7.3. पुिलस अधी क महोदय से नगर पािलक िनगम वािलयर ारा कराइ
गई F.I.R. . 0065/20 क गित ितवेदन तलब कया जाने हे तु आदे िशत कया
जावे।
7.4. यशोदा गृह िनमाण सहकार सं था मया दत, स यम ब डस ए ड
डे लोपस एवं फैर लड होट स ए ड रसो स ा.िल. क सम त व ीय घोटालो क
जाँ च ववेचना ED एवं CBI से कराये जाने हे तु आदे श पा रत करने क कृ पा क जावे।
7.5. यशोदा रे जीडसी म विध व आवंट / े तागण एवं अवैध क जाधार
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िनवािसगण से अित मण खाली कराया जावे व विध व आवं टय / े तागण के
आवंटन एवं व य प िनर त कया जावे। अनािधकृ त क जाधा रय के व
दं डा मक कायवाह हे तु आदे श पा रत करने क कृ पा क जावे।”
2. During the course of arguments, it was submitted by petitioner that
respondent No. 13 Dr. Atibal Singh Yadav, who claimed himself to be the
founder member of Yashoda Grih Nirman Sahakari Sanstha Maryadit,
Gwalior is posted in the Municipal Corporation Gwalior, is in habit of
removing the file from the Corporation and in this case also, he has removed
the relevant files.
3. Since the aforesaid allegation was serious one, therefore, petitioner
was directed to point out from the writ petition as to whether the verbalallegations which are being made by petitioner have been mentioned in the
writ petition supported by an affidavit or not.
4. After going through the writ petition, it was submitted by petitioner
that although he has not specifically alleged that Dr. Atibal Singh Yadav is
posted in Municipal Corporation Gwalior and has removed all these files but
it is submitted that reports submitted by various authorities indicate that files
were either removed or washed away, therefore, it is submitted that this
Court should draw an inference that act of removing the file or washing
away the file was of respondent No. 13. It is further submitted that FIR in
Crime No.65/2020 has been lodged at Police Station – University, District –
Gwalior for offence under Sections 292 (c) of M.P. Municipal Corporation
Act and under Section 120 (B) of IPC but inspite of the fact that
approximately five years have passed, no action has been taken. It is furtherSignature Not Verified
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submitted that similarly, a complaint was also made to E.O.W. and said
complaint was also forwarded by E.O.W. to Principal Secretary, Cooperation
Department but no action has been taken. Therefore, it is prayed that the
matter should be handed over to either E.D. or C.B.I.
5. Per contra, petition is vehemently opposed by counsel for State. It is
submitted by counsel for State that petitioner has not impleaded Enforcement
Directorate (E.D.) or C.B.I. as respondent. Furthermore, if Police Station –
University, District – Gwalior has failed to file final report (closure report or
charge-sheet), then petitioner has an alternative remedy of approaching the
concerned Magistrate as held by the Supreme Court in the case of Sakiri
Vasu Vs. State of U.P. reported in (2008) 1 MPHT 429 . It is further
submitted that allegation of bias or manipulation argued by petitioner has not
been specifically raised in the writ petition.
6. Considered the submissions made by the parties.
7. So far as allegations of non-action by Police Station – University,
District – Gwalior in FIR No. 65/2020 is concerned, it is well established
principle of law that this Court cannot supervise the investigation.
8 . The Supreme Court in the Case of Manohar Lal Sharma Vs.
Principal Secretary and others, reported in (2014) 2 SCC 532 has held as
under :-
“38. The monitoring of investigations/inquiries by the Court is
intended to ensure that proper progress takes place without directing or
channelling the mode or manner of investigation. The whole idea is to
retain public confidence in the impartial inquiry/investigation into the
alleged crime; that inquiry/investigation into every accusation is made
on a reasonable basis irrespective of the position and status of that
person and the inquiry/investigation is taken to the logical conclusion
in accordance with law. The monitoring by the Court aims to lendSignature Not Verified
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credence to the inquiry/investigation being conducted by CBI as
premier investigating agency and to eliminate any impression of bias,
lack of fairness and objectivity therein.
39. However, the investigation/inquiry monitored by the court does
not mean that the court supervises such investigation/inquiry. To
supervise would mean to observe and direct the execution of a task
whereas to monitor would only mean to maintain surveillance. The
concern and interest of the court in such “Court-directed” or “Court-
monitored” cases is that there is no undue delay in the investigation,
and the investigation is conducted in a free and fair manner with no
external interference. In such a process, the people acquainted with
facts and circumstances of the case would also have a sense of security
and they would cooperate with the investigation given that the superior
courts are seized of the matter. We find that in some cases, the
expression “Courtmonitored” has been interchangeably used with
“Court-supervised investigation” Once the court supervises an
investigation, there is hardly anything left in the trial. Under the Code,
the investigating officer is only to form an opinion and it is for the
court to ultimately try the case based on the opinion formed by the
investigating officer and see whether any offence has been made out. If
a superior court supervises the investigation and thus facilitates the
formulation of such opinion in the form of a report under Section
173(2) of the Code, it will be difficult if not impossible for the trial
court to not be influenced or bound by such opinion. Then trial
becomes a farce. Therefore, supervision of investigation by any court
is a contradiction in terms. The Code does not envisage such a
procedure, and it cannot either. In the rare and compelling
circumstances referred to above, the superior courts may monitor an
investigation to ensure that the investigating agency conducts the
investigation in a free, fair and time-bound manner without any
external interference.”
9. However, Section 173 (1) of Cr.P.C. mandates that the investigation
has to be completed without any unnecessary delay. The FIR in Crime
No.65/2020 was registered at Police Station – University, District – Gwalior
on 14th of February, 2020 and more than five long years have passed.
According to the petitioner, final report (closure report or charge-sheet) has
not been filed. Therefore, this Court can always monitor the investigation.
10. Section 173 (1) of Cr.P.C. reads as under :-
“173. Report of police officer on completion of investigation.– (1)
Every investigation under this Chapter shall be completed without
unnecessary delay.”
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Therefore, it is the mandate of law that the investigation has to be
completed without any unnecessary delay.
11. Accordingly, without adverting to the correctness of allegations
made in the FIR, Investigating Officer posted in Police Station – University,
District – Gwalior is directed to complete the investigation in Crime No.
65/2020 without any further delay and file the final report (whether closure
report or charge-sheet).
12. So far as personal allegation made against respondent No. 13 Dr.
Atibal Singh Yadav, respondent No. 13, is concerned, those allegations are
serious in nature. However, in order to allege against a person, allegations
must be specific and clear and duly supported by an affidavit of the
petitioner.
13. Although, during the course of arguments, petitioner has argued
that it is respondent No. 13 Dr. Atibal Singh Yadav, who is posted in
Municipal Corporation Gwalior, is involved in removing as well as washing
away the relevant files but in absence of any specific contention, this Court
cannot take any action. Although, during the course of arguments, liberty
was granted to file fresh writ petition along with specific allegation but
petitioner has refused to make any specific allegation against respondent No.
13 Dr. Atibal Singh Yadav. Under these circumstances, it is held that this
Court is unable to take cognizance of the verbal allegations made by
petitioner against respondent No. 13 Dr. Atibal Singh Yadav.
14. So far as submissions made by petitioner that even E.O.W. has not
taken any action on the complaint is concerned, it is well established
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principle of law that writ petition for registration of FIR is not maintainable.
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 :-
“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 caseSignature Not Verified
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[(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.”
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 underSignature Not Verified
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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.”
17. The Supreme Court in the case of Sakiri Vasu (supra) 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.”
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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 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.”
19. A Division Bench of this Court in the case of Shweta Bhadauria
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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, petitioner is granted liberty that if so desires, then he
can file a complaint under Section 156 (3) of Cr.P.C. / 175 (3) of B.N.S.S.
before the concerned Magistrate. Needless to mention that if such a
complaint is filed, then the concerning Magistrate shall be free to take notice
of the provisions of Section 210 of Cr.P.C. / 233 of B.N.S.S.
21. So far as relief claimed by petitioner for investigation by E.D. or
C.B.I. about the alleged illegalities committed by Yashoda Grih Nirman
Sahakari Sanstha Maryadit, Stayam Builders and Developers, and Fairyland
Hotels and Resorts Pvt. Ltd., is concerned, it is sufficient to mention here
that petitioner has not approached any of the aforesaid authorities, Even
Enforcement Directorate (E.D.) and C.B.I. has not been impleaded as party.
Therefore, in absence of any complaint to these aforesaid authorities, no
further direction is required.
22. So far as relief claimed by petitioner with regard to cancellation of
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allotment in favour of various persons is concerned, petitioner has an
efficacious remedy of approaching the competent authority under Section 64
of M.P. Cooperative Societies Act.
23. It is fairly conceded by petitioner that he has not approached the
competent authority under Section 64 of M.P. Cooperative Societies Act for
cancellation of allotment to the various persons.
24. With aforesaid observation, this petition is disposed of.
(G. S. AHLUWALIA)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 02-04-2025
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