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2021 DIGILAW 477 (MP)

Poonam Sharma v. State of M. P.

2021-06-03

G.S.AHLUWALIA

body2021
ORDER 1. This petition under Article 226 of the Constitution of India has been filed seeking following reliefs :- (i) This Hon'ble Court may kindly be pleased to call the entire record in respect of the subject matter and direct to the respondent No.4 to register the offence against the accused person on the complaint of petitioner dated 17.4.2021. (ii) This Hon'ble Court may kindly be pleased to direct the respondent No.2 to initiate the departmental enquiry against the respondent No.4 S.H.O. Police Station Kailaras, Distt. Morena and concluded within prescribed time, and punished him accordingly, in the interest of justice and set forth the example so that none of executive cane disobey the statutory duty imposed on him or her. (iv) This Hon'ble Court may kindly be pleased to direct to respondent No.3 to filed the complaint case against the respondent No.4 here S.H.O. Kailaras under section 166-A(c) of the I.P.C. within prescribed time limit, in the interest of justice. (v) Any other relief which this Hon'ble Court may deems fit and proper may also be passed together cost of the petition. 2. It is submitted by the Counsel for the petitioner, that a complaint has been made to the police authorities with regard to offence committed against her husband, but no action has been taken by the police, therefore, the police be directed to register the FIR. 3. Per contra, it is submitted by the counsel for the State that in the light of the judgments passed by the Supreme Court in the case of Sakiri Vasu v. State of U.P., reported in (2008) 2 SCC 409 , Aleque Padamsee and others v. Union of India & Ors., reported in (2007) 6 SCC 171 , Divine Retreat Centre v. State of Kerala and others reported in (2008) 3 SCC 542 and Division Bench of this Court in Writ Appeal No.247/2016 (Shweta Bhadauria v. State of M.P. & Ors.), this petition is not maintainable. 4. Heard counsel for the parties. 5. The moot question for consideration is that :- “Whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?” 6. The Supreme Court in the case of Divine Retreat Centre (supra), has held as under :-- “41. 4. Heard counsel for the parties. 5. The moot question for consideration is that :- “Whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?” 6. The Supreme Court in the case of Divine Retreat Centre (supra), has held as under :-- “41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and noncompliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code. 42. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy lies under sections 190, 200 CrPC, but a writ petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre v. State of Maharashtra held : (SCC pp. 774-75, para 13) “13. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under section 190 read with section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under section 203 of the Code. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees’ Union (Regd.) v. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained.” 7. The Division Bench of this Court in the case of Shweta Bhadauria (supra), has held as under :-- “(1) Writ of mandamus to compel the police to perform its statutory duty u/s 154 CrPC can be denied to the informant /victim for non-availing of alternative remedy u/Ss. 154(3), 156(3), 190 and 200 CrPC, unless the four exceptions enumerated in decision of apex Court in the the case of Whirlpool Corporation v. 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 v. 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 CrPC without availing alternative remedy under section s154(3), 156(3), 190 and 200 CrPC.” 8. As the petitioner has an efficacious and alternative remedy of filing a criminal complaint before the Court of competent jurisdiction, therefore, this petition is dismissed with liberty to file a criminal complaint before the Court of competent jurisdiction.