Madhya Pradesh High Court
Anubhav Rai vs The State Of Madhya Pradesh on 9 May, 2018
1 THE HIGH COURT OF MADHYA PRADESH W.P. No. 10455/2018 Anubhav Rai Vs. State of M.P. and others Gwalior, 09/05/2018 Shri Awdhesh Singh Bhadauriya, learned counsel for the petitioner.
Petitioner, by way of present petition, seeks following relief:-
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As regards direction to register an FIR against the alleged culprits, it has been held by the Supreme Court in the case of Aleque Padamsee v.
Union of India (2007) 6 SCC 171, Sakiri Vasu v.
State of Uttar Pradesh (2008) 2 SCC 409, Divine Retreat Centre v. State of Kerala (2008) 3 SCC 542 and Kunga Nima Lepcha v. State of Sikkim AIR 2010 SC 1671 that a direction cannot be issued in a petition under Article 226 of the Constitution of India to register an FIR. The petitioner has a remedy under Section 154 and 156 of the Code of Criminal Procedure, 1973, as the case may be, for redressal of the grievance.
In Sudhir Bhaskarrao Tambe vs Hemant Yashwant Dhage (2016) 6 SCC 277,it is held -
"2. This Court has held in Sakiri Vasu v State of U.P. (2008) 2 SCC 409 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 3 remedy of the aggrieved person is not to go 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 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 4 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."
Recently, the Division Bench of this Court at Principal Seat in Writ Appeal No.594/2017 (Dharmendra Sonkar Vs. The State of Madhya Pradesh) decided on 20.09.2017 has held:
"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 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:5
(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 6 the police authorities to perform their statutory duty under Section 154 Cr.P.C in case the FIR is not lodged. 7 (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 7 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).
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."
In view whereof, the petitioner is set at liberty to take recourse to the forum as per Code of Criminal Procedure, 1973 for redressal of his grievance.
The petition is disposed of finally in above terms. No costs.
(Sanjay Yadav) Judge shubh* Digitally signed by SHUBHANKAR MISHRA Date: 2018.05.11 10:44:38 +05'30'