The Madhya Pradesh High Court in Usha Jain vs Superintendant of Police firmly established that a writ of mandamus for FIR registration under Article 226 of the Constitution of India cannot be entertained when effective statutory remedies exist under the Code of Criminal Procedure 1973. Delivered by Justice Sanjay Yadav on November 18, 2016, in Writ Petition No. 18653/2016, the High Court held that an aggrieved informant must exhaust the alternative statutory remedy under Section 156 3 CrPC before the jurisdictional Magistrate rather than invoking the extraordinary writ jurisdiction of the High Court.
Case Particulars and Judicial Coram
The formal judicial roster and case identification particulars for the writ proceedings are set out below:
- Court: High Court of Madhya Pradesh at Jabalpur
- Judge: Justice Sanjay Yadav
- Case Number: Writ Petition No. 18653/2016
- Parties: Smt. Usha Jain (Petitioner) versus The Superintendant of Police and others (Respondents)
- Date of Order: 18.11.2016
- Counsel for Petitioner: Shri H.C. Kohli, Advocate
Relief Sought in the Madhya Pradesh High Court Criminal Writ Petition
The petitioner approached the High Court by filing a writ petition under Article 226 of the Constitution seeking a writ of mandamus to compel police authorities to register a First Information Report (FIR) and initiate formal criminal investigation. The specific prayers articulated in the petition were as follows:
(1) To direct the respondent No. 2 to register an FIR against respondent No. 3 and other concerned persons and on the basis of crime number, investigate and file final report before this Hon'ble Court.
(2) Respondent No. 1 be directed to monitor the matter so that the stream of administration of justice remains clean and pure and a common citizen shall harbour no grievance.
(3) Any other order/relief may be granted to the petitioner as deemed fit by this Hon'ble High Court along with the cost of the petition.
Reliance on Lalita Kumari FIR Registration Guidelines
The petitioner placed primary reliance upon the landmark Constitution Bench verdict of the Supreme Court of India in Lalita Kumari vs. Govt. of U.P. and others [(2014) 2 SCC 1], contending that registration of an FIR is mandatory under Section 154 of the Code of Criminal Procedure whenever information discloses the commission of a cognizable offence.
The High Court carefully reviewed the conclusions recorded by the Supreme Court in paragraph 120 of Lalita Kumari regarding statutory obligations and preliminary inquiries:
120. In view of the aforesaid discussion, we hold:
120.1. The 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.
120.2. 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.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry confirms that no cognizable offence is made out, 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.
120.4. 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.
120.5. 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.
120.6. 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 explaining the reasons for delay.
The aforesaid instances are not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. 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.
120.8. 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.
Statutory Scheme of the Criminal Procedure Code and Remedy Under Section 156 3 CrPC
Addressing the petitioner's prayer, the High Court observed that while police officers are under a statutory mandate to register an FIR when a cognizable offence is disclosed, the Code of Criminal Procedure 1973 contains a complete self-contained code of remedies for cases where the police fail or refuse to act.
When an officer in charge of a police station refuses to record information under Section 154(1) CrPC, the informant has the statutory right under Section 154(3) CrPC to send the substance of such information in writing to the Superintendent of Police. If the grievance remains unredressed, the informant is not left remediless; the Code empowers the aggrieved person to approach the jurisdictional Magistrate under Section 156(3) CrPC or file a private complaint under Section 200 CrPC.
The High Court underscored that petitioners cannot bypass these statutory provisions to invoke the extraordinary writ jurisdiction of the High Court for issuance of a mandamus for FIR registration CrPC.
Judicial Precedents on Non-Entertainability of Writ Petitions for FIR Registration
The High Court extensively analyzed binding Supreme Court precedents establishing that High Courts should not entertain Article 226 writ petitions seeking directions for police investigation when alternative statutory forums are available.
Analysis of Sakiri Vasu vs State of U.P.
The Court cited the authoritative judgment of the Supreme Court in Sakiri Vasu vs. State of U.P. and others [(2008) 2 SCC 409], which examined the supervisory powers of Magistrates under the Code of Criminal Procedure:
11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is made, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
12. Thus in cases where the police fails to register an FIR under Section 154 CrPC, or having registered the FIR the police does not investigate the case properly, the aggrieved person has an alternative remedy to approach the Magistrate under Section 156(3) CrPC.
13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT 2007 (10) SC 585) (vide para 17). We would further clarify that in the case of State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335), this Court did not say that the only remedy of the aggrieved person was to file a writ petition under Article 226 of the Constitution. Bhajan Lal was a case where the FIR was registered and the Court was considering whether to quash the FIR or not.
14. In Section 156(3) CrPC the word 'may' has been used, but in our opinion it should be read as 'shall'. If a person has a grievance that his FIR has not been registered by the police station, 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 the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has neglected its duty to register an FIR, or has not conducted investigation properly, the Magistrate can readily intervene, and give suitable directions.
16. The power in the Magistrate to order an investigation under Section 156(3) is an implied power to monitor the investigation to ensure a proper investigation. It includes the power to direct that a proper investigation be done which can be done through various means, e.g. directing the police to interrogate certain persons, or to collect certain evidence, etc.
17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done. Although the Magistrate cannot supervise the investigation in the sense of going with the police officer to the scene of crime, he can monitor it so that the investigation is conducted properly.
18. It is well settled that where a power is given to do a certain thing, the necessary power is also given to do all such things or to make all such orders which are necessary to enable that power to be effectively exercised (vide Rohtak & Hissar District Electric Supply Co. Ltd. v. State of U.P. AIR 1966 SC 1471 and Central Bank of India v. Rajagopalan AIR 1964 SC 743).
24. In view of the abovementioned legal position, we are of the view that although the High Court has very wide powers under Article 226 of the Constitution, the High Court should not entertain a writ petition by a person whose grievance is that his FIR has not been registered by the police station, or having been registered, proper investigation is not being done by the police. For this grievance, the remedy of the aggrieved person is to approach the Magistrate concerned under Section 156(3) CrPC, or to file a criminal complaint under Section 200 CrPC.
25. The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy is under Section 156(3) CrPC or Section 200 CrPC.
26. If a person has a grievance that his FIR has not been registered by the police, or that after registration proper investigation is not being done, then the remedy of the aggrieved person is not to approach the High Court under Article 226 of the Constitution, but to approach the Magistrate concerned under Section 156(3) CrPC. If the Magistrate on applying his mind is prima facie satisfied that the information discloses a cognizable offence, he can direct the police to register the FIR and investigate the matter.
27. As we have already observed above, the Magistrate has very wide powers under Section 156(3) CrPC, and we see no reason why the High Court should be flooded with writ petitions or petitions under Section 482 CrPC for this purpose when an effective alternative remedy is available to the aggrieved person before the Magistrate concerned.
28. If the High Court starts entertaining such writ petitions, it will be flooded with thousands of such petitions, and will not be able to do any other judicial work. Hence, we hold that the complainant must avail of his alternative remedy before the Magistrate concerned under Section 156(3) CrPC.
Analysis of Aleque Padamsee and Gangadhar Janardan Mhatre
The High Court further considered the Supreme Court decision in Aleque Padamsee and others vs. Union of India and others [(2007) 6 SCC 171], wherein the Apex Court held that when information is given to the police and no action is taken, the complainant must follow the statutory route laid down under Section 190 read with Section 200 of the Code. The Supreme Court in Aleque Padamsee observed:
7. The correct position in law, therefore, is that when the information is laid with the police, but no action in that behalf is taken, the complainant is not without remedy. Under the Code of Criminal Procedure, the complainant can approach the Magistrate under Section 190 read with Section 200 of the Code.
8. The remedy of the writ of mandamus cannot be availed of in such cases. If a person has a grievance that the police is not registering an FIR, the proper remedy is to approach the Magistrate under Section 156(3) or Section 200 CrPC.
This principle was also affirmed in Gangadhar Janardan Mhatre vs. State of Maharashtra [(2004) 7 SCC 768] and Minu Kumari vs. State of Bihar [(2006) 4 SCC 359], which reiterated that the Magistrate's jurisdiction under the Code provides an expeditious and adequate remedy.
Analysis of Sudhir Bhaskarrao Tambe vs Hemant Yashwant Dhage
The High Court placed decisive reliance upon the three-Judge Bench decision of the Supreme Court in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others [(2016) 6 SCC 277], which reaffirmed the principles laid down in Sakiri Vasu:
2. This Court has held in Sakiri Vasu v. State of U.P. 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 the 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 he has already registered the FIR, can direct a proper investigation to be done which includes in his discretion, if he deems it necessary, monitoring the 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 his alternate 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.
Judicial Supervision Under Section 190 and Section 200 CrPC
The statutory mechanism under Chapter XIV and Chapter XV of the Code guarantees judicial oversight at every critical juncture. When a Magistrate receives a complaint or an application under Section 156(3), the Magistrate possesses statutory authority to take cognizance under Section 190(1)(a) or direct the police to register an FIR and submit a final report under Section 173(2) CrPC.
Where the police submit a closure report or negative final report, the Magistrate is not bound by police conclusions. Under the law laid down in Bhagwant Singh v. Commissioner of Police [(1985) 2 SCC 537], the Magistrate must issue a protest notice to the first informant, providing an opportunity to be heard before accepting any police closure report.
Findings and Final Disposal of the Writ Petition
In view of the settled legal position across repeated Supreme Court rulings, Justice Sanjay Yadav held that since the petitioner possesses an efficacious alternative statutory forum under the provisions of the Code of Criminal Procedure 1973, the High Court must refrain from issuing the writ of mandamus sought in the petition.
The petition was accordingly disposed of finally, reserving liberty to the petitioner to pursue appropriate statutory criminal procedure remedies under CrPC before the jurisdictional criminal court.
This ruling reinforces the importance of following the structured hierarchy of criminal courts and adhering to the Criminal Procedure Code 1973 procedural framework when seeking judicial remedies for police inaction.