Petition is filed seeking a writ of Mandamus declaring the action v. STATE OF U.P. [1] & Ors.

This Writ Petition is filed seeking a writ of Mandamus declaring the action of respondent Nos.1 and 2 in not taking action on the petitioner’s complaint of forgery and impersonation in spite of acknowledging the same by both the respondents on 26.09.2011,

24.12.2011 and 10.02.2012 respectively without even registering FIR, as illegal and arbitrary and consequently to direct the respondents to register her complaint, dated 26.09.2011, reporting forgery and impersonation and initiate necessary proceedings.

Grievance of the petitioner is that in spite of her complaint, dated 26.09.2011, respondents 1 and 2 are not registering the case.

Heard.

No doubt, if a cognizable offence is reported to police, it is their statutory duty to register a case. If the police are not registering the case, the complainant is at liberty to give report to the Superintendent of Police as contemplated under Section 154(3) Cr.P.C. Even though there is inaction on the part of police in registering the case, the remedy of the complainant is to file a complaint under Section 190 or 200 Cr.P.C.

An alternative remedy is available to the petitioner in case of non-registering the case. In a decision of the Apex Court in SAKIRI VASU V. STATE OF U.P. AND OTHERS [1] , it is held thus:

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 Cr.P.C., then he can approach the Superintendent of Police under Section 154 (3) Cr. P. C. 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 held, it is open to the aggrieved person to file an application under Section 156 (3) Cr. P. C. 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 can 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 investigation to ensure a proper investigation.

the same provision monitor

In another decision in GANGADHAR JANARDAN MHATRE V. STATE OF MAHARASHTRA & OTHERS, it is held thus: [2]

When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would. issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and others (1997) Supreme Court Cases (Crl) 303. It was specifically observed that a writ petition in such cases is not to be entertained.

No doubt, alternative remedy is not a bar for invoking the jurisdiction under Article 226 of the Constitution of India. But, the petitioner must show that her case falls under any one of the three categories of cases as held in HARBANSLAL SAHNIA AND ANOTHER V. INDIAN OIL CORPN. LTD. & OTHERS [3] , wherein it is held thus:

So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged. [See Whirlpool Corporation v. Registrar of Trade Marks. Mumbai and Ore.] The present case attracts applicability of two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.

irrelevant and nonexistent cause. Case of the petitioner does not fall under any one of the above three categories of cases.

Miscellaneous petitions, if any, pending in this writ petition shall stand closed. _______________ K.C. BHANU, J

21.08.2012 KH [1]