Madhya Pradesh High Court
Umesh Kumar Bohare vs The State Of Madhya Pradesh on 6 July, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
W.P.No.8618/2020
(Umesh Kumar Bohare Vs. State of M.P. and others)
Gwalior, Dated:-6/7/2020
Shri Umesh Kumar Bohare appears in person.
Shri M.P.S. Raghuvanshi, learned Additional Advocate General
for the respondents/State.
In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this petition has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsel through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.
Heard the learned counsel for the parties.
Petitioner has filed the present petition seeking following reliefs:
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Learned counsel for the petitioner submitted that in whole 2 THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) country the pandemic COVID-19 disease is spreading and to reduce the chances of being infected or spreading COVID-19 by taking some precautions like maintaining social distancing, regularly and thoroughly clean the hands with an alcohol-based hand sanitizer or wash them with soap and water and avoid going to crowded places, but the respondent no.5 while on Gwalior tour on 7.6.2020 has not followed the above precautions and therefore, the respondent no.1 to 4 may be directed to register the FIR against the respondent no.5 and also imposed fine upon him.
Per contra, counsel for the State has prayed for dismissal of the petition and submits that no such direction can be granted in the petition under Article 226 of the Constitution of India, and therefore, prays for dismissal of this petition.
The Division Bench of this Court in the case of Mukesh Dangi Vs. State of M.P. And others, (W.A.No.341/2016) decided on 20.12.2016 has held as under:
"3. Now this Court takes up the principal issue No.1.
3.1 The self imposed restriction of availability of statutory remedy, adopted by a writ Court while considering issuance of writ of mandamus is universally applied with few exceptions as enumerated above.
3.2. The Code of Criminal Procedure provides various avenues before the informant / victim to initiate criminal prosecution. The first avenue is of lodging of FIR under Section 154(1) / 154(3) 3 THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) which can be availed by the victim and as well as a stranger to the offence, provided the first information discloses commission of cognizable offence. The lodging of FIR under Section 154 Cr.P.C. sets the investigative machinery into motion without prior permission of the Magistrate as is otherwise required for noncognizable offences.
3.3 The second avenue available to the victim and as well as a stranger to the cognizable offence, is u/s 156(3) by approaching the concerned Magistrate by informing commission of cognizable offence. The Magistrate can then conduct an enquiry himself or direct the concerned police station to register the offence alleged, thereby triggering the investigation. 3.4 The third avenue available is under Section 190 Cr.P.C empowering the competent Magistrate to take cognizance of any offence upon receipt of complaint of facts containing allegation constituting the offence, or upon a police report of such facts or upon information received from any person other than a police officer, or upon his own knowledge of commission of cognizable and as well as non- cognizable offence, except offences punishable under Chapter XX of IPC, for which procedure prescribed u/s 198 Cr.P.C. is to be adhered to. 3.5 The fourth avenue is under Section 200 Cr.P.C where a complaint, oral or in writing if made before the competent Magistrate leads to hearing by the Magistrate on the question of taking cognizance of offence or not and if it is found that complaint discloses commission of any offence punishable in law then the Magistrate issues summons to the proposed accused on appearance of whom statements of rival parties are recorded and the Magistrate decides on the question of framing of charge or discharging the accused. If charges are framed then trial proceeds.
3.6 The above said discussion makes it clear that there are four different remedies available under Cr.P.C for the informant /victim to initiate prosecution in respect of the cognizable / noncognizable offence which is alleged in the 4 THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) first information furnished which fails to invoke response from the police. More so, these statutory remedies cannot be branded as nonefficacious or onerous. Accordingly, informant whose first information does not lead to registration of offence under Section 154 Cr.P.C is not remedy-less and therefore the constraints exercised by the writ Court while issuing writ of mandamus come into play. These constraints as enumerated above are self imposed and lie within the domain of discretion rather than rule but none the less are invariably applied by superior courts while exercising writ jurisdiction. To elaborate, if it is demonstrated that impugned action or inaction is vitiated by violation of principles of natural justice, or being bereft of jurisdiction or violates any statutory provision or causes breach of fundamental rights, then non-availing of alternative remedy cannot restrain the informant or victim to successfully invoke the writ jurisdiction of the superior Court.
3.7 In the cases at hand none of these four exceptions are either alleged or made out. 3.8. Pertinently the Apex Court while contemplating the options available to an informant / victim when his first information falls on deaf ears in the case of Aleque padamsee and others V. Union of India and others [(2007) 6 SCC 171] has laid down thus :-
"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 Employees' Union (Regd.) Vs. Union of India, (1996) 11 SCC 582 and re-iterated in Gangadhar's case (supra) 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's case (supra), 5 THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) Gangadhar Janardan Mhatre Vs. State of Maharashtra, (2004) 7 SCC 768, Hari Singh Vs. State of U.P. (2006) 5 SCC 733, Minu Kumari Vs. State of Bihar, (2006) 5 SCC 733, and Ramesh Kumar Vs. ( NCT of Delhi) (2006) 2 SCC 677, we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice.
In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was re- iterated in Lallan Chaudhary and Ors. V. State of Bihar (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's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its 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 Sections 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) 530/2002 and WP(C) 221/2002. 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.6
THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) (3) So far as non-grant of sanction aspect is concerned, it is for the concerned government to deal with the prayer. The concerned government 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."
3.9 Similar view was reiterated by the Apex Court in its subsequent verdict in Sakiri Vasu Vs. State of U.P., (2008) 2 SCC 409. The relevant paras are reproduced below :-
"25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?"
3.10. The decision of Aleque padamsee (supra) 7 THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) has though been referred by the Constitution Bench in Lalita Kumari but has neither been distinguished nor over-ruled and therefore, the same continues to hold the field. That the view taken by the Apex Court in case of Aleque padamsee and Sakiri Vasu (supra) has been subsequently reiterated and reaffirmed in the case of Sudhir Bhaskar Rao Tambe Vs. Hemant Yashwant Dhage and Ors, [(2016) 6 SCC 277] as follows :-
"2. This Court has held in Sakiri Vasu Vs. State of U.P. (supra), 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 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 investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case (supra) 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 properinvestigation.
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."8
THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) 3.11 Accordingly, the principal issue No.1 is decided by holding that writ of mandamus can be declined due to non-availing of alternative remedy when the cause shown is non-
registration of offence u/s 154 Cr.P.C despite furnishing information of commission of cognizable offence.
4. Turning to the peripheral issues and taking up the first in that category, it is seen that the same relates to WA. No. 341/2016 filed to assail the order dated 3.10.2016 in WP No. 6986/ 2016 where the writ Court found the informant to be functus officio and thus held that petitioner therein has no locus standi for seeking a writ of mandamus.
4.1 A bare perusal of terminology employed by the legislature in Section 154 Cr.P.C discloses that even a stranger to the offence can inform the police about commission of any coginzable offence. Object behind this is that legislature did not want that any coginzable offence committed in the society should go uninvestigated and untried if found to be prima facie committed. By restricting the connotation of the expression "informant" to that of "victim" would defeat this object. Accordingly, once Section 154 enables even a stranger to the cognizable offence to invoke statutory powers of the police of registration of offence ( which is now held to be mandatory by the verdict of Apex Court in Lalita Kumari), then the act of failure of police to perform this statutory duty can certainly accrue cause of action to the stranger to seek writ of mandamus under Article 226 of the Constitution of India from the superior Court to compel the police to perform its statutory duty under Section 154 Cr.P.C.
4.2 Consequently even a stranger to a cognizable offence has locus standi to seek issuance of mandamus against the police to act u/s 154 Cr.P.C provided such stranger is the first informant.
5. As regards peripheral issue No.2, it is seen that the same relates to question whether proposed accused in the first information is 9 THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) entitled to a hearing before the writ court in a petition seeking mandamus under Article 226 directing the police to register the FIR under Section 154 Cr.P.C.
5.1 Reverting to the terminology of Section 154 Cr.P.C. one finds that the statute does not contemplate any prior hearing to the proposed accused before registration of cognizable offence. Thus the natural consequence that follows is that while issuing writ of mandmus directing the police to perform its statutory duty under Section 154 Cr.P.C the accused is not required to be heard.
5.2 More so, impleadment of a party (respondent) in a writ petition is based on the principle of natural justice ( audi alterem partem). No judicial order ought to be passed without hearing the person against whom the same is made. More so the impleadment of a respondent further becomes necessary when any particular respondent against whom though no relief is sought but such respondent is required to be heard by the writ court for proper and effective adjudication of the cause. In this background if the peripheral issue No.2 is seen then it is evident that the writ of mandamus sought under Article 226 is based on the cause of failure of police to perform its statutory duty despite receipt of first information of commission of cognizable offence. The direction sought in such a writ petition is against the police authorities and not against the proposed accused and therefore the proposed accused is neither required to be heard nor to be impleaded as party.
5.3. Accordingly, peripheral issue No.2 is decided by holding that proposed accused whose name is mentioned in the FIR is not a necessary party, in a writ seeking issuance of mandamus against police authorities compelling them to perform their statutory duty under Section 154 Cr.P.C.
6. Before parting the conclusion arrived at based on the above discussion and analysis is delineated below for ready reference and convenience :-
10THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) (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..
(3) Subject to (1) supra the informant / victim after furnishing first information regarding cognizable offence does not become functus officio for seeking writ of mandamus for compelling the police authorities to perform their statutory duty under Section 154 Cr.P.C in case the FIR is not lodged.
(4) Subject to (1) supra the proposed accused against whom the first information of commission of cognizable offence is made, is not a necessary party to be impleaded in a petition under Article 226 of the Constitution of India seeking issuance of writ of mandamus to compel the police to perform their statutory duty under Section 154 Cr.P.C.
7. From the above discussion of facts and analysis of law including the judicial verdict relied upon this court deems it appropriate to dispose of all the writ appeals as follows :-
7.1 (i) WA.394/2016 (Mirza Javed Baig and Ors.
Vs. State of M.P. & Ors.) and WA No. 379/2016 (Bare Lal and Anr. Vs. Deepa and Ors.) are allowed and the impugned orders dated 18.10.2016 passed in WP No. 2539/ 2016 and order dated 12.08.2016 passed in WP No. 5603/ 2016 are set aside, leaving the petitioners free to avail the statutory remedies under Sections 154(3), 156(3), 190 and 200 Cr.P.C. 7.2 (ii) WA. 341/2016 (Mukesh Dangi Vs. The 11 THE HIGH COURT OF MADHYA PRADESH W.P.No.8618/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) State of M.P. & Ors.) is partly allowed to the following extent :-
(a) the impugned order of the writ court dated 03.10.2016 passed in WP No.6986/2016 is set aside to the extent it declares the petitioner/appellant to be functus officio and having no locus to file the writ.
(b) The petitioner / appellant is free to avail remedy available to him u/s 154(3), 156(3), 190 or 200 Cr.P.C.
7.3 (iii) WA No. 247/2016 (Shweta Bhadoria Vs. State of M.P. & Ors.) and WA No. 358 / 2016 (Naveen Bajaj Vs. State of M.P. & Ors.) are dismissed and impugned orders dated 2058/2016 passed in WP No. 2058/2016 and order dated 13.07.2017 passed in WP No. 1076/2016 are affirmed, leaving it open for the petitioners to avail the remedy under Section 154(3), 156(3), 190 and 200 Cr.P.C."
Considering the overall facts and circumstances of the case and also in view of the order dated 20.12.2016 passed by the Division Bench in the case of Mukesh Dangi (supra) no such relief of registration of FIR can be granted in the petition under Article 226 of the Constitution of India.
Accordingly, petition fails and is dismissed. There shall be no order as to costs.
(Vishal Mishra) Judge Pawar* ASHISH PAWAR 2020.07.10 10:47:25 +05'30'