Madhya Pradesh High Court
Abdul Sohail vs The State Of Madhya Pradesh on 16 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-JBP:2014
1 WP-31191-2024
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. 31191 of 2024
ABDUL SOHAIL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
None appeared for petitioner.
Ms. Shraddha Tiwari - Panel Lawyer for the respondents/State.
ORDER
This petition under Article 226 of the Constitution of India has been
filed by the petitioner seeking following reliefs :-
“(i) Issue a writ of mandamus directing the respondent to initiate
action on report.
(ii) Issue a writ of mandamus directing the respondents to register
an FIR against the Private Respondents and others based on the
petitioner’s complaint regarding the fraudulent claims related to
the pension and property of Mohd. Rafiq S/o Sheikh Babbu in a
time-bound manner.
(iii) Issue a writ of mandamus directing the respondents to
examine the validity of the death certificates and claims made by
the Private Respondents, ensuring a thorough and impartial
investigation into the fraudulent activities in a time-bound manner.
(iv) Any other relief deemed fit be also granted;
(iv) Cost of the petition.”
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 1/17/2025
9:58:08 AM
NEUTRAL CITATION NO. 2025:MPHC-JBP:2014
2 WP-31191-2024
2 . It is submitted by counsel for petitioner that in spite of complaint made
by petitioner, Police has not taken any action.
3. It is submitted by counsel for the State that it is well established
principle of law that a Writ Petition for registration of FIR is not
maintainable because petitioner has an efficacious remedy of approaching
the Trial Magistrate under Section 200 of Cr.P.C. (Section 223 of Bharatiya
Nagarik Suraksha Sanhita, 2023).
4. Considered the submissions made by counsel for the parties.
5 . The moot question for consideration is as to whether a Writ Petition for
direction to the Police to register FIR is maintainable or not?
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
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 1/17/2025
9:58:08 AM
NEUTRAL CITATION NO. 2025:MPHC-JBP:2014
3 WP-31191-2024
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
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 1/17/2025
9:58:08 AM
NEUTRAL CITATION NO. 2025:MPHC-JBP:2014
4 WP-31191-2024
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.
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 1/17/2025
9:58:08 AM
NEUTRAL CITATION NO. 2025:MPHC-JBP:2014
5 WP-31191-2024
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.”
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:-
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 1/17/2025
9:58:08 AM
NEUTRAL CITATION NO. 2025:MPHC-JBP:2014
6 WP-31191-2024
“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.”
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 hisSignature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 1/17/2025
9:58:08 AM
NEUTRAL CITATION NO. 2025:MPHC-JBP:20147 WP-31191-2024
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 theSignature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 1/17/2025
9:58:08 AM
NEUTRAL CITATION NO. 2025:MPHC-JBP:20148 WP-31191-2024
impugned order of the High Court.”
1 0 . 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
i n (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.”
11. Accordingly, this petition is dismissed with liberty to petitioner that if
so desire, then he can approach the concerning Magistrate under Section 200
of Cr.P.C/Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 for
redressal of his grievance.
(G. S. AHLUWALIA)
JUDGE
Priya.P
Signature Not Verified
Signed by: PRIYANKA
PITHAWE
Signing time: 1/17/2025
9:58:08 AM