Madhya Pradesh High Court
Shreepat Shakya vs The State Of Madhya Pradesh on 20 December, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:23360
1 MCRC-54768-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 54768 of 2024
SHREEPAT SHAKYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rajmani Bansal - Advocate for applicant.
Shri Naval Kishor Gupta - Public Prosecutor for respondent/State.
ORDER
This application, under Section 482 of Cr.P.C., has been filed seeking
following relief(s):-
i) A direction may kindly be given to the respondents to
make an investigation upon application submitted by
the present petitioner;
ii) Further direction may kindly be given to the
respondents to if the offence is made out to register the
FIR against the accused persons;
iii) Any other relief which is just and proper may kindly
be awarded to the present petitioner.
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, it is submitted by counsel for State that it is well
established principle of law that a petition for registration of FIR is not
maintainable because applicant has an efficacious remedy of approaching the
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 12/20/2024
6:38:09 AM
NEUTRAL CITATION NO. 2024:MPHC-GWL:23360
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Trial Magistrate under Section 200 of Cr.P.C. (now under 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 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 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 SCCSignature Not Verified
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DHARKAR
Signing time: 12/20/2024
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NEUTRAL CITATION NO. 2024:MPHC-GWL:23360
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(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.
(4) We make it clear that we have not expressed
any opinion on the merits of the case.”
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 12/20/2024
6:38:09 AM
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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 IndiaSignature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 12/20/2024
6:38:09 AM
NEUTRAL CITATION NO. 2024:MPHC-GWL:233605 MCRC-54768-2024
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:-
“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 SectionSignature Not Verified
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DHARKAR
Signing time: 12/20/2024
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NEUTRAL CITATION NO. 2024:MPHC-GWL:233606 MCRC-54768-2024
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.”
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:-
Signature Not Verified
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Signing time: 12/20/2024
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NEUTRAL CITATION NO. 2024:MPHC-GWL:23360
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“(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, the application is dismissed with liberty to applicant
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
pd
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 12/20/2024
6:38:09 AM
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