1 THE HIGH COURT OF MADHYA PRADESH WP No.16352/2019 Smt. Sangeeta Shakya vs. State of M.P. & Ors. Gwalior, Dated : 09.08.2019 Shri [ENTITY], Counsel for the petitioner. Shri [ENTITY], Panel Lawyer for the respondents No.1
to 3/State.
This petition under [SECTION] of the [ACT] has been filed seeking direction to the respondents no.1 to 3 for taking action against the respondents No.4 to 7 on the complaint made by the petitioner.
The moot question for consideration is that :-
"Whether a writ petition under [SECTION] of the [ACT] for registration of the FIR is tenable or not?"
The Supreme Court in the case of Divine Retreat Centre Vs. State of Kerala and others reported in ([SECTION]8) 3 SCC 542 has held as under:-
"41. It is altogether a different matter that the High Court in exercise of its power under [SECTION] of the [ACT] 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 non- compliance with the provisions falling under [SECTION] 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 HIGH COURT OF MADHYA PRADESH Smt. Sangeeta Shakya vs. State of M.P. & Ors.
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 [SECTION], [SECTION] [ACT], but a writ petition in such a case is not to be entertained. This Court in [PRECEDENT] 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] 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 [SECTION] 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 [SECTION] 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] 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 [PRECEDENT]. It was specifically observed that a writ petition in such cases is not to be entertained."
The Division Bench of this Court by order dated 20/12/2016 THE HIGH COURT OF MADHYA PRADESH Smt. Sangeeta Shakya vs. State of M.P. & Ors. passed in [CASE NUMBER] ([PRECEDENT] has held as under:-
"(1) Writ of mandamus to compel the police to perform its statutory duty u/[SECTION] [ACT] can be denied to the informant /victim for non-availing of alternative remedy u/[SECTION], [SECTION], [SECTION] and [SECTION] [ACT], unless the four exceptions enumerated in decision of Apex Court in the the case of [PRECEDENT], 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] [ACT] without availing alternative remedy under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] "
Without entering into the merits of the case, in the light of the judgments passed by the Supreme Court in the cases of Sakiri Vasu vs. State of U.P., reported in ([SECTION]8) 2 SCC 409 and Aleque Padamsee and others Vs. Union of India & Ors., reported in ([SECTION]7) 6 SCC 171 and order dated 30/9/2016 passed by Division Bench of Allahabad High Court in the case of [PRECEDENT], the complainant has an efficacious and alternative remedy of filing a criminal complaint before the Court of competent jurisdiction. Hence, this petition is dismissed with liberty to file a criminal complaint before the Court of THE HIGH COURT OF MADHYA PRADESH Smt. Sangeeta Shakya vs. State of M.P. & Ors. competent jurisdiction.
With aforesaid liberty, the present petition is dismissed.
([ENTITY]) (alok) Judge [ENTITY] 2019.08.09 14:11:03 +05'30'