Brij Kishore Shivhare vs State of Madhya Pradesh Lokayukt

The present petition is being preferred by the petitioner against seeking relief of registration of FIR against the Station House Officer (Pankaj Tiwari),

Aantri, District, Gwalior in the light of judgment rendered by the Hon'ble Apex Court in the case of Lalita Kumari Vs. State of U.P., (2014) 2 SCC 1.

Precisely stated facts of the case as narrated in the petition and submissions made by the petitioner is that the Station House Officer, Police Station

Aantri, District, Gwalior, is a corrupt Officer and he is allegedly seeking illegal gratification from the petitioner and his staff while carrying Dumper

filled with sand. The said dumper was intercepted by the said SHO with force and sought money for allowing the vehicle to go into the city. It is also

submitted that, earlier a case was registered against the SHO by his alleged wife under Sections 376, 313 and 120-B of IPC.

According to learned counsel for the petitioner, the SHO, who is of doubtful integrity and therefore, petitioner has made an representation dated

02.09.2016 before Superintendent of Police, Lokayukt, but the same has not been taken into consideration.

Petitioner referred the judgment rendered by the Apex Court in the case of Dr. Subramaniam Swamy Vs. Dr. Manmohan Singh and another, 2012 (3)

CCSC 1515 (SC) as well as in the case of Dinubhai Boghabhai Vs. State of Gujarat & Ors., 2014 AIR (SCW) 1722 and submits that case be

registered against the erring Officer and investigation be carried out.

Shri Rohit Mishra, appearing on behalf of Lokayukt opposed the prayer made by the petitioner. In the return, it was submitted that petition is not

maintainable in view of the law laid down by the Hon'ble Apex Court in the case of Sudhir Bhaskar Rao Tambe Vs. Yashwant Dange and others

reported in 2016 (6) SCC 277 as well as in the case of Sweta Bhadoriya Vs. State of M.P. and ad Others, 2017 (1) MPLJ (Cri.) 228.

It is further submitted that the SHO registered the FIR against the complainant/petitioner in respect of illegal mining transportation. Therefore, the

petitioner has filed this petition as counter blast. The complaint made by the petitioner is not supported with the affidavit of independent witnesses.

Therefore, the authority specially Lokayukt has not taken cognizance of the matter and vide letter dated 24.11.2016 (Annexure R-1) matter has been

sent to Inspector General of Police, Gwalior, Range, Gwalior. He prayed for dismissal of writ petition.

Heard both the learned counsel for the parties at length and perused the documents appended there to.

Petitioner, in the petition has sought the following reliefs:-

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From perusal of the reliefs as claimed, it appears that the petitioner is seeking Writ of Mandamus for direction for registration of FIR against erring

Officer Pankaj Tiwari. The said aspect has been considered by the Apex Court in the case of Sakiri Vasu Vs. State of U.P., 2008 (2) SCC 409 as

well as in the case of Sudhir Bhaskar Rao Tambe Vs. Yashwant Dange and others, 2016 (6) SCC 277 wherein it is held that appropriate remedy in

such cases is to file complaint under Section 156(3) of Cr.P.C before Magistrate.

Whether a direction can be issued through writ of mandamus for registration of FIR has been taken into consideration in detail by the Division Bench

of this Court in the case of Sweta Bhadoriya (Supra) wherein two Principal as well as two Peripheral Issues were discussed. Relevant extract of

judgment as contained in para 6 is reproduced as under:-

“6. Before parting the conclusion arrived at based on the above discussion and analysis is delineated below for ready reference and convenience :-

(1) Writ of mandamus to compel the police to perform its statutory duty u/s 154 Cr.P.C can be denied to the informant /victim for non-availing of

alternative remedy u/Ss. 154(3), 156(3), 190 and 200 Cr.P.C., unless the four exceptions enumerated in decision of Apex Court in the the case of

Whirlpool Corporation Vs. 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 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 154 Cr.P.C without availing alternative remedy

under Section 154(3), 156(3), 190 and 200 Cr.P.C..

(3) Subject to (1) supra the informant / victim after furnishing first information regarding cognizable offence does not become functus officio for

seeking writ of mandamus for compelling the police authorities to perform their statutory duty under Section 154 Cr.P.C in case the FIR is not lodged.

(4) Subject to (1) supra the proposed accused against whom the first information of commission of cognizable offence is made, is not a necessary

party to be impleaded in a petition under Article 226 of the Constitution of India seeking issuance of writ of mandamus to compel the police to perform

their statutory duty under Section 154 Cr.P.C.â€​

Here in the present case, the petitioner has referred the FIR registered against erring Officer under Sections 376, 313 and 120-B of IPC at the

instance of one lady, allegedly his wife. In the said matter, FIR was registered and therefore, the petitioner has no locus to interfere into the said

litigation. In respect of illegal gratification/demand of bribe from the petitioner by erring Officer is concerned for such relief, Writ of Mandamus, which

is discretionary in nature, cannot be issued. Even otherwise, reply filed by the respondent indicates that the Office of Lokayukt of M.P. referred the

matter to the Office of Inspector General of Police, Gwalior Range, Gwalior vide order dated 24.11.2016. The Inspector General of Police has to

consider the matter and he would take care of such reference as per law. Therefore, no grievance subsists for the petitioner at this juncture.

From the nature of reliefs as claimed by the petitioner, no case for interference is made out. Judgments relied upon by the petitioner do not support the

case of petitioner as they move in different factual realm. Petitioner may avail other remedies as per law. Writ of Mandamus which is discretionary in

nature cannot be issued in the fact and circumstances of the case.

Petition sans merit, and is hereby dismissed.