Banobi vs State Of Madhya Pradesh

Though in the relief clause several reliefs have been claimed, but the submission of the learned counsel for the petitioner at this stage is for a direction to the respondent to register the FIR.

For a direction to register the FIR, writ remedy is not the proper remedy and petitioner is required to follow the procedure which has been prescribed under the Cr.P.C.

This Court in W.P. No.3951/2016 vide order dated 16.8.2016 considering the similar issue and after noting the judgment of Supreme Court in case of Lalita Kumari Vs. State of U.P. and others reported in AIR 2014 SC 187 has held as under :-

"I have heard the learned counsel for parties and perused the record.

The supreme court in the matter of Lalita Kumari (supra) has issued the following directions:-

111) In view of the aforesaid discussion, we hold:

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above".

In that case the issue of maintainability of the writ petition for directing the police authority to register the FIR was not involved.

The supreme court in the matter of Sakiri Vasu Vs. State of UP and others reported in (2008) 2 SCC 409 and Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and others reported in (2016) 6 SCC 277 has held that the remedy in such matter does not lie before the High Court under Article 226 of the Constitution but before the Magistrate concerned u/S.156(3) of the Cr.P.C. It has been held that if the petitioner has a grievance that the police station is not registering the FIR u/S.154 of the Cr.P.C, then he can approach Superintendent of Police u/S.154(3) of Cr.P.C by an application in writing and even if that does not yield any satisfactory result, it is open to the aggrieved person to file an application u/S.156(3) of the Cr.P.C before the Magistrate concerned and the Magistrate can direct the FIR to be registered and also can direct proper investigation to be made in case if it is alleged that no proper investigation was made.

Since the petitioner has an alternative remedy of approaching the Superintendent of Police u/S.154(3) Cr.P.C and then approaching the Magistrate u/S.156(3) of the Cr.P.C, therefore, no case for issuing any direction in the present writ petition is made out.

The writ petition is accordingly disposed of with liberty to the petitioner to avail such other remedies as are available under law."

Similar is the view taken by the Division Bench at the Principal Seat in Writ Appeal No.709/2016 by order dated 13.10.2016 by holding that in such a case the petitioner has remedy of approaching the Magistrate concerned under the provisions of Cr.P.C. Even after pronouncement of the judgment in the matter of Lalita Kumari (supra), the Supreme Court in the matter of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and others reported in (2016) 6 SCC 277 has considered this aspect and has clearly laid down that in case of non registration of FIR or grievance against the investigation the writ remedy is not a proper remedy.

In view of the judgment of the Supreme Court in the matter of Lalita Kumari Vs. State of U.P. and others reported in AIR 2014 SC 187 the petitioner is required to avail the remedy which has been prescribed under the Cr.P.C. in case if the concerned SHO does not register the FIR.

In view of this learned counsel for the petitioner seeks permission to withdraw the writ petition with liberty to avail such other remedies as are available under the law.

Prayer is allowed.

Writ petition is dismissed as withdrawn with liberty as prayed.