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2021 DIGILAW 138 (MP)

Rajesh Choudhary v. State of M. P.

2021-02-10

NANDITA DUBEY

body2021
JUDGMENT : Nandita Dubey, J. HEARD THROUGH VIDEO CONFERENCING 1. Petitioner's son's body was found on the railway track near Hawai Patti, Umariya. Thereafter, Marg was registered at no. 97/2019 in Police Station-Kotwali, District-Umariya. Thereafter, the statement of petitioner and his wife has been recorded, in which they had made allegation against the private respondent no. 4 alleging that she got their son murdered. It is the grievance of the petitioner that despite the fact that he has raised strong suspicion on respondent no. 4 for being involved in the murder of his son, no action has been taken against her. He suspects that police is not doing fair investigation and trying to shield the respondent no. 4. It is his further grievance that he has filed an application under the Right to Information Act for providing the documents as required by him. However, the same has also not been considered. 2. Learned PL has contended that the petition is not maintainable. There is a separate channel for seeking the information under the Right to Information Act and if the documents, as required by the petitioner, are not supplied to him, he may challenge the same before the appellate authority. 3. As regards the contention of petitioner that the police authorities are not taking any action or not investigating the crime properly, he submits that the petitioner may file an application before the concerned Magistrate under Section 156(3) of the Cr.P.C. 4. In Sudhir Bhaskar Rao Tambe Vs. Hemant Yashwant Dhage and others (2016) 6 SCC 277 , the 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. 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." 5. 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? (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? 6. The Division Bench of this Court while deciding the bunch of writ appeals held in para 2.10, 2.11, 3.6 thus: 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. 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 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. 7. 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. The petitioner may avail the remedy available to him under Sections 154(3), 156(3), 190 or 200 Cr.P.C. 8. So far as the contention of petitioner that documents under Right to Information Act have not been provided to him, statutory remedy of appeal is available to him under the Act which he may avail. 9. The petitioner may avail the remedy available to him under Sections 154(3), 156(3), 190 or 200 Cr.P.C. 8. So far as the contention of petitioner that documents under Right to Information Act have not been provided to him, statutory remedy of appeal is available to him under the Act which he may avail. 9. With the aforesaid liberties, the petition is disposed of.