Madhya Pradesh High Court
Basant Kumar Gupta vs The State Of Madhya Pradesh on 17 July, 2018
HIGH COURT OF MADHYA PRADESH
Writ Petition No. 15415/2018
(Basant Kumar Gupta Vs. State of M.P. and others)
Jabalpur :17/07/2018
Shri A.M. Trivedi, learned Sr. Counsel with Shri Jayant
Patel, Advocate for the petitioner.
Shri Nirmala Nayak, Govt. Advocate for the
respondent/State.
Heard on admission.
This writ petition is filed under Article 226 of the Constitution of India, seeking a direction to the respondents No.1 to 7 to provide security to the lives of the petitioner and his family members in order to save their lives from respondents No.8 and 9.
The grievance of the petitioner is that respondent No.8 is blackmailing him for extortion of Rs.50 lakhs and threatened that in case her demand is not fulfilled, he will be implicated in a case under Section 376 of the I.P.C., as earlier the petitioner and respondent No.8 were in live-in- relationship. Therefore, it is prayed that the police authorities be directed to register FIR against respondents No.8 and his brother respondent No.9 for threatening the petitioner.
In Sudhir Bhaskar Rao Tambe Vs. Hemant Yashwant Dhage and others (2016) 6 SCC 277, the HIGH COURT OF MADHYA PRADESH Writ Petition No. 15415/2018 (Basant Kumar Gupta Vs. State of M.P. and others) Supreme Court referring to the case of Aleque Padamsee and others Vs. Union of India and others (2007) 6 SCC 171 and Sakri Vasu Vs. State of U.P. (2008) 2 SCC 409 has held :-
"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 proper investigation.
HIGH COURT OF MADHYA PRADESH Writ Petition No. 15415/2018 (Basant Kumar Gupta Vs. State of M.P. and others)
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 alternate his 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."
Similar issue was raised in W.A. No.247/2016, Shweta Bhadauria Vs. State of M.P. and others. The principal issues raised were :-
(i) Whether in the face of remedies u/s 154(3), 156(3), 190 & 200 Cr.P.C. writ of mandamus can be issued to police authorities to perform their statutory duty u/s 154(1) Cr.P.C. in a petition complaining non-registration of FIR despite furnishing first information of commission of cognizable offence?
HIGH COURT OF MADHYA PRADESH Writ Petition No. 15415/2018 (Basant Kumar Gupta Vs. State of M.P. and others)
(ii) Whether the Constitution Bench decision of the Apex Court in Lalita Kumari (supra) is an answer to the above said principal issue No.1 ? The Division Bench of this Court while deciding the bunch of writ appeals held in para 2.10, 2.11, 3.6 :
2.10. Therefore it can safely be concluded that the Apex Court while interpreting the statutory provision u/s 154 Cr.P.C said nothing further as regards remedy available to the informant whose information of commission of cognizable offence does not invoke any response from the police. Thus, the judgment of Lalita Kumari does not lay down any law in respect of remedies available to the informant under Cr.P.C. to be invoked in case of failure on the part of the police to perform its statutory duty under Section 154(1)/154(3) Cr.P.C. as a sine qua non for seeking writ of mandamus.
2.11. Consequently, the case of Lalita Kumari of the Apex Court does not answer the principal issue No.1 framed by this Court.
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/non-
cognizable offence which is alleged in the first HIGH COURT OF MADHYA PRADESH Writ Petition No. 15415/2018 (Basant Kumar Gupta Vs. State of M.P. and others) information furnished which fails to invoke response from the police. More so, these statutory remedies cannot be branded as non- efficacious 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. In view of the law laid down in the case of Sudhir Bhaskar Rao Tambe (supra) and in W.A. No. 247/2016 (Shweta Bhadauria Vs. State of M.P. and others), this writ petition has no merits is dismissed accordingly, leaving it HIGH COURT OF MADHYA PRADESH Writ Petition No. 15415/2018 (Basant Kumar Gupta Vs. State of M.P. and others) open to the petitioner to avail remedy available to him under Sections 154(3), 156(3), 190 or 200 Cr.P.C.
(Smt. Nandita Dubey) Judge gn Digitally signed by GEETHA NAIR Date: 2018.07.18 14:29:53 +05'30'