Madhya Pradesh High Court
Laleshwari Sahu (Minor) vs The State Of Madhya Pradesh on 4 October, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:51007
1 WP No.30696/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 4th OF OCTOBER, 2024
WRIT PETITION No. 30696 of 2024
LALESHWARI SAHU (MINOR) AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vivek K. Tankha- Senior Advocate through VC with Shri Shivendra Pandey -
Advocate for the petitioners.
Shri Abhishek Singh - GA for the respondents / State.
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :-
"(i). Pass an appropriate Writ, Order or Direction in the nature of Mandamus or any other similar writ directing the Respondents to conduct a fresh postmortem, file the Inquest and Magisterial report as per the provisions of Sections 196 and 197 of BNSS after disinterring the dead body of the Petitioner no.1's father, and direct it to be placed the same before the police Authorities and this Hon'ble Court.
(ii) Pass an appropriate Writ, order or Direction in the nature of Mandamus or any other similar writ directing the Respondents to register a First Information Report to NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 2 WP No.30696/2024 investigate the suspected murder of the father of the Petitioner No.1.
(iii). Pass an appropriate Writ, Order or Direction in the nature of Mandamus or any other similar writ directing the respondent authorities to constitute a High-Level Investigation Team for re-postmortem and proper investigation of the death of the father of the petitioner no.1 Shiv Prasad Sahu.
(iv). That, this Hon'ble Court may kindly be pleased to grant any other relief, as it may deem fit."
2. It is the case of the petitioners that the petitioners are the close relatives being daughter and mother-in-law of the deceased Shivprasad Sahu. The dead body of father of the petitioner no.1, namely, Shivprasad Sahu was found hanging on 15/9/2024 in a forest area near the border of Village Bijatola, Railwahi, Police Station Birsa, District Balaghat. The picture of the dead body hanging on a tree was widely circulated on whatsapp and according to the petitioners, feet of the deceased were touching the ground. In order to find out real cause of death, police of Police Station Birsa, District Balaghat got the post- mortem of the father of petitioner no.1 done. Although the dead body of the father of petitioner no.1 was found in a suspicious circumstances, therefore, the police should have informed the petitioner, but no information was given. Thereafter, the dead body of the father of the petitioner was sent back to Chhattisgarh and with the help of police, the dead body of the father of petitioner no.1 was buried NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 3 WP No.30696/2024 at Village Loharidih, Chhattisgarh. Earlier one Raghunath Sahu and his supporters had threatened to kill the father of the petitioners. Raghunath Sahu was also sent to jail for molesting the mother of the petitioner and after coming out of the jail, Raghunath Sahu had tried to kill the father of petitioner no.1. It is submitted that in fact the father of the petitioner no.1 was murdered by Raghunath Sahu in a conspiracy and his dead body was hanged in the forest area near Village Bijatola, Railwahi, Police Station Birsa, District Balaghat, which is on the border of Rengakhar forest, Village Loharidih, Chhattisgarh. The act of Madhya Pradesh and Chhattisgarh police is very suspicious and in fact it made every effort to save the murderers of the father of petitioner no.1. The petitioners have made a complaint to Superintendent of Police Kabirdham and also requested for fresh post-mortem of the father of petitioner no.1, but till date no action was taken. Even one Prashant Sahu has also died on account of beating by the police. Prashant Sahu was the suspect of the death of father of petitioner no.1. Even the mother of Prashant Sahu was beaten in the police custody. Since father of petitioner no.1 had died in suspicious circumstances and his dead body has been buried by the police in a hurry without appropriate post-mortem and burial, therefore, the provisions of Sections 194 and 196 of BNSS, 2023 have not been complied with. The petitioner had earlier filed a writ petition before the High Court of Chhattisgarh at Bilaspur, which was registered as WPCR No.386/2024, however, the petition was dismissed with liberty to the petitioners to NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 4 WP No.30696/2024 approach the concerned authorities in Madhya Pradesh and accordingly, it is submitted that the post-mortem of the dead body of the father of petitioner no.1 be re-conducted and respondents be directed to register the First Information Report against the suspects and High Level Investigation Team may be constituted for proper investigation of the death of the father of petitioner no.1.
3. Per contra, petition is vehemently opposed by the counsel for the State. It is submitted that so far as the submission that from the photographs it appears that the feet of the deceased were touching the ground is concerned, it is a natural phenomenon. Whenever a person commits suicide by hanging himself, then his neck as well as rope are liable to be stretched and in those circumstances, some part of the feet may touch the ground. In the post-mortem report, cause of death was found to be asphyxia due to hanging. It is further submitted that a writ petition for registration of FIR is not maintainable. If the petitioner has a suspicion that the police is not investigating the matter, then they have a remedy of approaching the concerning Magistrate either by filing an application under Section 156(3) of Cr.P.C./175(3) of BNSS or under Section 200 of Cr.P.C./223 of BNSS.
4. Heard learned counsel for the petitioner.
5. So far as the contention of counsel for petitioners that the dead body of father of petitioner No.1 was buried without informing the family members is concerned, the same appears to be false. Petitioners have filed a copy of representation made to Superintendent NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 5 WP No.30696/2024 of Police, Kabirdham (C.G.). The said representation was made by petitioner No.1 namely, Laleshwari Sahu. In the said representation, it is mentioned that last rites of burial were performed by her 9 year old brother. Thus, it is clear that family members of the deceased were informed by Chhattisgarh Police. Last rites of burial were performed by 9 years old son of the deceased.
6. Be that whatever it may be.
7. The preliminary contention of counsel for petitioners that petitioners have a suspicion that the father of petitioner No.1 might have been murdered by Raghunath Sahu and others and accordingly, it is prayed that FIR may be lodged.
8. No reasons have been assigned by petitioners for demanding re-postmortem of dead body of father of petitioner No.1.
9. Be that whatever it may be.
10. The moot question for consideration is as to whether a Writ Petition for registration of FIR is maintainable or not?
11. The Supreme Court in the case of AlequePadamsee 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 6 WP No.30696/2024 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] , MinuKumari 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] , MinuKumari 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 7 WP No.30696/2024 Kumari case [(2006) 2 SCC 677 : (2006) 1 SCC (Cri) 678 : AIR 2006 SC 1322] was reiterated in LallanChaudhary 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 MinuKumari 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.
NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 8 WP No.30696/2024 (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."
12. 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 9 WP No.30696/2024 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 GangadharJanardanMhatre 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 10 WP No.30696/2024 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."
13. A Division Bench of this Court in the case of Shweta BhadauriaVs. 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 LalitaKumariVs.
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."
NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 11 WP No.30696/2024
14. Therefore, if the petitioners have a grievance that the Police has not registered the FIR, then they have a remedy under Section 200 of Cr.P.C / Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 by filing a complaint before the Court of competent jurisdiction.
15. So far as the dissatisfaction expressed by the petitioners with regard to the enquiry/investigation which is being done by the Police is concerned, 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 12 WP No.30696/2024 ensure a proper investigation."
16. The Supreme Court in the case of SudhirBhaskarraoTambe Vs. HemantYashwantDhage and Others reported in (2016) 6 SCC 277 has held as under:-
"2. This Court has held in SakiriVasu v. State of U.P. [SakiriVasu 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 SakiriVasu case [SakiriVasu 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 13 WP No.30696/2024 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 SakiriVasu case [SakiriVasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 : AIR 2008 SC 907] , the impugned judgment [HemantYashwantDhage v. S.T. Mohite, 2009 SCC OnLineBom 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."
NEUTRAL CITATION NO. 2024:MPHC-JBP:51007 14 WP No.30696/2024
17. Thus, it is clear that if the petitioners are not satisfied with the enquiry done by the Police, then they have remedy of approaching to the Court of Magistrate for redressal of their grievance.
18. Since petitioners have an alternative remedy, therefore no relief can be granted to them.
19. Accordingly, with aforesaid liberty, petition is dismissed.
(G. S. AHLUWALIA) JUDGE JITENDRA KUMAR Digitally signed by JITENDRA KUMAR PAROUHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64a5a , postalCode=482001, st=Madhya Pradesh, PAROUHA serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF10402B1 9143AD99, cn=JITENDRA KUMAR PAROUHA Date: 2024.10.05 15:20:18 +05'30' JP