Madhya Pradesh High Court
Smt. Manoj Sharma vs The State Of Madhya Pradesh on 15 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:8370
1 MCRC-45827-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 15 th OF APRIL, 2025
MISC. CRIMINAL CASE No. 45827 of 2024
SMT. MANOJ SHARMA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Nirmal Sharma - Advocate for applicant.
Dr. Anjali Gyanani - Public Prosecutor for State.
ORDER
This application under Section 528 of BNSS has been filed seeking the
following reliefs:-
“Thus, prayed that, this Hon’ble Court may kindly be pleased to allow
this Petition and the respondent be directed to take cognizance. on the
complaint of the petitioner in expeditious manner within a period of 2
weeks in the interest of. justice.”
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.
4. It is submitted that if the police is not taking action in the matter, then
applicant has a remedy of approaching the concerning Magistrate.
5. Heard the learned counsel for the parties.
6. 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 ?
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Signed by: RASHID KHAN
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7. 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
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 thatSignature Not Verified
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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.”
8. 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)Signature Not Verified
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“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.”
9. 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.”
10. The Supreme Court in the case of Sudhir Bhaskarrao Tambe Vs.
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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
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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.”
11. 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.”
12. 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 for redressal of his
grievance.
(G. S. AHLUWALIA)
JUDGE
Rashid
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Signed by: RASHID KHAN
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