Muneshwar v. State of U.P. Thru. Prin. Secy. Home Deptt. and Others

Court No. - 10 Case :- CRIMINAL MISC. WRIT PETITION No. - 8733 of 2023 Petitioner :- Muneshwar Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. And Others Counsel for Petitioner :- Vayu Nandan Mishra Counsel for Respondent :- G.A. Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Narendra Kumar Johari,J. Heard learned counsel for the petitioner, learned A.G.A. for the State/respondents and perused the material placed on record. This writ petition has been filed with the following main prayers:- "(i) Issue a writ, order or direction in the nature of Mandamus, to thereby commanding the opposite party no.2 to take the necessary action in respect of the grievances of the petitioner raised in application dated

5.10.2023 contained as Annexure No. 1 to this writ petition and ensure the lodging of the first information report against the opposite parties no. 4 to 7, mentioned in aforesaid application in pursuance of the Government Order dated 19.6.2017 in the interest of justice." Learned counsel for the petitioner has submitted that the petitioner had attempted to lodge the first information report against the respondent nos. 4 to 7 but no heed was paid and the F.I.R. was not lodged. The petitioner also moved applications dated 10.6.2023 and 12.8.2023 to the Station House OfÏcer, P.S.-Mohanlal Ganj, District Lucknow but till date FIR has not been lodged. The Hon'ble Supreme Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1, has observed that a Police OfÏcer cannot avoid his duty for registering an offence if in the application cognizable offence discloses and in case they avoid such responsibility, an action to be taken against the erring OfÏcer under Section 161-A of Cr.P.C. or Departmental Proceedings be initiated and such proceedings can be taken against erring OfÏcer in not registering the FIR. Learned A.G.A. has also pointed out that the judgment rendered by the Division Bench of this Court in the case of Waseem Haider Vs. State of U.P. and others reported in (2021) 2 ADJ 86, to say that after considering the law laid down by the Hon'ble Supreme Court in the Lalita Kumari' case (supra), this Court expressed its opinion that the informant has statutory remedy under Section 156

(3) Cr.P.C. or under Section 200 of Cr.P.C. The Paragraph-45 of the said judgment is being quoted hereinbelow:-"45. 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 under Section 154 Cr.P.C can be denied to the informant/victim for non-availing of alternative remedy under Sections 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) The informant/victim after furnishing first information regarding cognizable offence does not become functus ofÏcio 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) 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". This Court is of the opinion that if the petitioner is aggrieved by non-lodging of the FIR, therefore, he has appropriate remedy of filing a complaint under Section 156

(3) Cr.P.C. or under Section 200 of the Cr.P.C. This writ petition stands disposed of. Order Date :- 9.11.2023/AKK High Court of Judicature at Allahabad, Lucknow Bench