Madhya Pradesh High Court
Jaswinder Singh vs The State Of Madhya Pradesh on 20 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:1068
1 MCRC-1724-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 1724 of 2025
JASWINDER SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Uma Kushwah - Advocate for applicant.
Dr. Anjali Gyanani - Public Prosecutor for the State.
ORDER
The application, under Section 528 of BNSS, 2023 (Section 482 of
Cr.P.C. 1973) has been filed seeking the following reliefs:-
“It is therefore humbly prayed that this Hon’ble Court may kindly be
pleased to allow this petition and may direct the respondent to
complete the investigation with the period of two months.”
2 . It is submitted by counsel for applicant that in spite of complaint
made by the applicant, FIR has not been lodged by the police.
3. Per contra, the application is vehemently opposed by counsel for the
State. It is submitted that the applicant has an efficacious remedy of
approaching the concerning Magistrate under section 190 and 200 Cr.P.C..
4. Heard the learned counsel for the parties.
5. The moot question for consideration is as to whether an application
for a direction to the Police to lodge an FIR is maintainable or not ?
6. The Supreme Court in the case of Aleque Padamsee and others vs.
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Signing time: 21-Jan-25
7:37:23 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1068
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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 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 readSignature Not Verified
Signed by: ANAND KUMAR
Signing time: 21-Jan-25
7:37:23 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:10683 MCRC-1724-2025
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 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 specificallySignature Not Verified
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NEUTRAL CITATION NO. 2025:MPHC-GWL:10684 MCRC-1724-2025
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 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
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Signing time: 21-Jan-25
7:37:23 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:10685 MCRC-1724-2025
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.”
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 Cr.P.C
without availing alternative remedy under Section 154(3), 156(3),
190 and 200 Cr.P.C.”
11. Accordingly, no case is made out for directing the police to register
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Signed by: ANAND KUMAR
Signing time: 21-Jan-25
7:37:23 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1068
6 MCRC-1724-2025
the offence. If applicant is of view that some offence has been committed
against him, then he has a remedy to approach the concerned Magistrate
under Section 200 of Cr.P.C./223 of BNSS.
12. With aforesaid liberty, application is dismissed as not
maintainable.
(G. S. AHLUWALIA)
JUDGE
AK/-
Signature Not Verified
Signed by: ANAND KUMAR
Signing time: 21-Jan-25
7:37:23 PM
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