Madhya Pradesh High Court
Dharmendra Sonkar vs The State Of Madhya Pradesh on 20 September, 2017
Bench: Hemant Gupta, Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
Writ Appeal No.594/2017
Dharmendra Sonkar
-Versus-
The State of M.P. and others
Shri Ahadulla Usmani, Advocate for the appellant.
Shri Amit Seth, Govt. Advocate for the respondents/State.
Whether approved for Yes
reporting ?
Law laid down There is no mandate that in exercise of jurisdiction
under Article 226 of the Constitution of India, a writ
Court can issue a direction for registration of an FIR.
Significant paragraph Nos. 7.
JUDGEMENT (Oral)
(20.9.2017) Per: Hemant Gupta, C.J.-
The challenge in the present intra-court appeal is to an order passed by the learned Single Bench on 23-6-2017 in W.P. No.8044/2017 whereby in view of the Division Bench judgment of this Court rendered in Shweta Bhadauria vs. State of M.P. and others, 2017(1) MPJR 247, it was held that if an FIR is not registered on the basis of a complaint which discloses a cognizable 2 offence, the remedy available to an aggrieved person is to take recourse to the provisions envisaged under Section 154 of the Code of Criminal Procedure 1973 ( For short "the Code").
2. Learned counsel for the appellant vehemently argued that the judgment rendered in Shweta Bhadoria (supra) is not correctly decided, as in the case of Lalita Kumari vs. Government of U.P., (2014) 2 SCC 1 the Supreme Court held that registration of an FIR is the mandatory duty of the police. Therefore, to ensure that the mandatory duty is carried by the Police, the interference of this court is essential to secure rule of law. The relevant extract of the Constitution Bench judgment in Lalita Kumari (supra) read thus:
"120. In view of the aforesaid discussion, we hold:
120.1 Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.3
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."
3. In Lalita Kumari (Supra) an earlier judgment of the Supreme Court rendered in Aleque Padamsee and others vs. Union of India and others, (2007) 6 SCC 171 was referred to. In the said case the issue - whether it is within the powers of the Court to issue a writ directing the police to register an FIR in the case where it is alleged that the accused has made such a speech which is likely to disturb communal harmony was examined. It was held that in case a police officer fails to register an FIR, the modalities to be 4 adopted are set out under Section 190 read with Section 200 of the Code. But there was no disagreement with the view recorded in the case of Aleque Padamsee and others (supra).
Apart from the judgment in Aleque Padamsee and others (supra), the Supreme Court in another judgment reported as Sakiri Vasu vs. State of U.P., (2008) 2 SCC 409, categorically held that if a person is aggrieved that his FIR has not been registered by the police or having been registered, proper investigation is not done, the remedy available to 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) of the Code. Relevant extract of the order read thus:
"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).5
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?"
4. The view taken by the Apex Court in Sakiri Vasu (supra) was followed in the case of Sudhir Bhaskar Rao Tambe vs. Hemant Yashwant Dnage and others, decided on 12th April 2010, but reported in (2016) 6 SCC 277 wherein it was held to the following effect:
"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 6 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 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."
5. Considering the aforesaid judgments this Court in Shweta Bhadauria (supra) considered the question as to whether a writ of mandamus can be issued to the police authority to perform a statutory duty under Section 154(1) of the Code, in a petition 7 complaining non-registration of the FIR despite disclosing of a cognizable offence. In response to such question, this Court held as under:
"6. Before parting the conclusion arrived at based on the above discussion and analysis is delineated below for ready reference and convenience:
(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.
8(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."
6. We have examined the arguments raised by learned Counsel for the appellant and find no reason to take a different view than the view taken by the Division Bench of this Court in Shweta Bhadauria (supra).
7. The Constitution Bench in Lalita Kumari (supra) was considering the question as to whether registration of an FIR is mandatory, in case it discloses a cognizable offence. If the information does not disclose a cognizable offence, it mandates to conduct a preliminary enquiry. But, there is no mandate in the aforesaid judgment that this Court under Article 226 of the Constitution of India should issue a direction for registration of an FIR. Such a question has been specifically answered in Aleque Padamsee and others (supra), Sakiri Vasu (supra) and Sudhir Bhaskar Rao Tambe (supra).
9
8. In view of the aforesaid, we do not find any error in the order passed by the learned Single Bench in writ jurisdiction, which may warrant any interference in the present intra-court appeal. It is accordingly dismissed.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
ac.