Jawahar Lal vs State And Ors

Sanjeev Kumar, J

1 In this petition, the petitioner prays for issuance of a Writ of Mandamus directing the respondents to register FIR and conduct the investigation on the basis of a complaint, claimed to have been made by the petitioner initially to the SHO Police Station, Udhampur, then to the Sr.S.P, Udhampur and ultimately before the CJM Udhampur under Section 156(3) Cr.P.C.

2 It is the grievance of the petitioner that he was engaged in the business of supply of shuttering and construction material from his shop in Khasra No. 528 Ommara Udhampur. The accused persons, sixteen in numbers, came on spot in the afternoon of 27.11.2009 and started forcibly taking away the shuttering material belonging to the petitioner. They forcibly took over the possession of the premises belonging to the petitioner purportedly under the direction of the Executing Court of learned Sub-Judge (CJM) Udhampur. The accused persons, it is alleged, took away the shuttering belonging to the petitioner. The whole action was done by the accused persons after threatening the sister-in-law of the petitioner, who was present on spot, of elimination. It is submitted that a complaint in this regard was lodged with the Police Station Udhampur. However, the SHO, Police Station, Udhampur refused to register FIR. The petitioner thereafter approached Sr. SP, Udhampur to direct SHO concerned to register FIR, but to no avail. He ultimately filed an application under Section 156(3) of Cr.P.c before CJM Udhampur for directing the police to register FIR and investigate the commission of various offences. The CJM, Udhampur forwarded the application of the petitioner to the In-charge Police Station, Udhampur to enquire into the matter and initiate action, if warranted under law in terms of its order dated 24.12.2009 endorsed on the original application submitted by the petitioner.

3 The petitioner submits that despite there being an order passed by the CJM, Udhampur, FIR has not been registered and, therefore, the petitioner having been left with no option, has approached this Court and prays for mandamus to the SHO, Police Station, Udhampur to register FIR in the matter.

4 Having heard learned counsel for the petitioner rand perused the material on record, I am of the view that the petitioner has already availed of remedy as is available to him in terms of Section 153 (3) of Cr.P.C . The CJM, Udhampur has intervened in the matter and has directed the In-charge Police Station, Udhampur to enquire into the matter and initiate action if warranted under law.

5 The grievance of the petitioner, however, is that despite there being a direction by the CJM, Udhampur, the police has not registered FIR in the matter.

6 Mr. Thakur learned counsel for the petitioner, however, submits that the order passed by the CJM, Udhampur tantamounts to a direction to the SHO concerned to registered FIR and, therefore, the SHO concerned must be directed to register formal FIR and investigate the matter in compliance to the order of CJM, Udhampur.

7 The relief as prayed for, to say the least, is misconceived. This Court in exercise of its extraordinary jurisdiction cannot direct the Police to register FIR, more so, when the Code of Criminal Procedure provides elaborate mechanism in this regard. Needless to say that the police is bound to register FIR, if the information received by it, orally or in writing, discloses commission of cognizable offence and in case the SHO concerned shows any reluctance in the matter, the aggrieved person is required to approach SP of the District. If the SP of the District also does not act in the matter, the petitioner has two options, either to file an application under Section 156 (3) of Cr.P.C or file a complaint before the Magistrate having jurisdiction.

8 In the instant case, the petitioner, after having exhausted his remedy before the SHO and SP of the District, filed application under Section 156 (3) of CrP.C. Ordinarily, the Magistrate should have gone through the contents of the complaint and if it was of the opinion that the allegations made in the complaint disclosed commission of cognizable offence, it ought to have, either directed registration of FIR by the concerned Police Station or take cognizance under Section 190 of Cr.P.C and proceed under Chapter XVI of CrPC. The CJM, Udhampur has not adopted either of the two available options and has left it to the police to enquire into the matter and initiate action, if warranted under law. To top it all, learned CJM has passed order on the original application and transmited it to the concerned Police Station without even retaining copy of the same as also copy of the order passed by it. This Court has, time and again, deprecated such practice.

9 The petitioner could have filed an application before CJM, Udhampur alleging non-compliance of order dated 24.12.2009. He too does not appear to have done so. Be that as it may, the manner, in which the CJM has proceeded, is unknown to law and, therefore, order dated 24.12.2009 passed on the margin of the application submitted by the petitioner under Section 156(3) of CrPC is not sustainable in law and deserves to be set aside. Ordered accordingly. The CJM, Udhampur is directed to consider the application of the petitioner filed under Section 156 (3) of CrP.C afresh and proceed in the matter in accordance with law regard being had to the legal position adumbrated by the Supreme Court in the case of Lalita Kumari vs. Government of U.P., (2008) 7 SCC 164 and Priyanka Srivastava vs. State of U.P, (2015) 6 SCC 287.

Disposed of as such.