Aavas Financiers Ltd Through Its Authorize Officer Mr. Mukesh Suthar vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
th
ON THE 14 OF JULY, 2026
WRIT PETITION No. 17328 of 2026
AAVAS FINANCIERS LTD THROUGH ITS AUTHORIZE OFFICER
MR. MUKESH SUTHAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Gulshan Rathore - Advocate for the petitioner.
Shri Shiraz Qureshi - Govt. Advocate for the respondent/State.
ORDER
This petition under Article 226 of the Constitution of India has been
filed by the petitioner seeking following reliefs:-
"i. Issue a writ of mandamus directing Respondent No. 2 & 3 to
register FIR forthwith on the basis of the petitioner's complaint
dated 07.05.2026.
ii. Direct Respondents No. 2 and 3 to conduct a fair, impartial and
time-bound investigation into the criminal acts committed by the
borrower.
iii. Issue a further writ/direction commanding the police
authorities to forthwith restore peaceful and vacant physical
possession of the secured asset to the petitioner bank, in terms of
the order dated 22.02.2024 passed by the CJM under Section 14 of
the SARFAESI Act.
iv. Direct the respondents to provide continuous police protection
to the secured asset till completion of SARFAESI proceedings.
v. Pass any other order(s) as may be deemed fit and proper in the
interest of justice."
So far as the relief pertaining to restoration of possession of the
secured asset is concerned, the issue is no longer res integra. In identical
circumstances, the Division Bench of this Court in W.P. No. 1681/2025 has
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 7/14/2026
6:55:15 PM

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held that there exists no legal impediment in re-executing an order passed

under Section 14 of the SARFAESI Act or in extending fresh assistance to
the secured creditor where the borrower, after having been dispossessed,
illegally re-enters the secured asset and resumes possession thereof. The
Division Bench further observed that such illegal re-entry by the borrower
cannot be permitted to defeat the statutory rights of the secured creditor or
frustrate the object and purpose of the SARFAESI Act.
A similar view has been taken by the Bombay High Court in Kotak
Mahindra Bank v. State of Maharashtra & Ors. (W.P. No. 6805/2023
decided on 30.06.2023) and in HDB Financial Services Limited v. State of
Maharashtra & Ors. (W.P. No. 1080/2024), wherein directions were issued
to the authorities to restore possession to the secured creditor by re-executing
the order passed under Section 14 of the Act. The Full Bench of this Court in
W.P. No. 11500/2020 has also held that the action of the District Magistrate
or Chief Metropolitan Magistrate under Section 14 of the Act is ministerial
in nature and is undertaken for and on behalf of the secured creditor for
facilitating recovery of possession of the secured asset.
In view of the aforesaid legal position and having regard to the facts
and circumstances of the present case, this Court is of the considered opinion
that the petitioner/Financial Institution is entitled to restoration of possession
of the secured asset in pursuance of the order dated 22.02.2024 passed under
Section 14 of the SARFAESI Act.
Insofar as the reliefs relating to registration of FIR, fair investigation
and initiation of criminal action are concerned, it is well settled by the
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 7/14/2026
6:55:15 PM

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decisions of the Hon'ble Supreme Court in Sakiri Vasu v. State of U.P.

[(2008) 2 SCC 409] and Aleque Padamsee v. Union of India [(2007) 6 SCC
171] that in cases of non-registration of FIR or alleged police inaction, the
appropriate remedy is to approach the jurisdictional Magistrate by filing an
application under Section 156(3) of the Code of Criminal Procedure, 1973,
corresponding to Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita,
2023, rather than invoking the writ jurisdiction of this Court under Article
226 of the Constitution of India. In the case of Sakiri Vasu v. State of U.P.
(supra), the Hon'ble Supreme Court has held as under:-
"17. In our opinion Section 156(3) Cr.P.C. 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 F.I.R. and of ordering a proper investigation if
the Magistrate is satisfied that a proper investigation has not been
done, or is not being done by the police. Section 156(3) Cr.P.C.,
though briefly worded, in our opinion, is very wide and it will
include all such incidental powers as are necessary for ensuring a
proper investigation.
18. It is well-settled that when a power is given to an authority to
do something it includes such incidental or implied powers which
would ensure the proper doing of that thing. In other words, when
any power is expressly granted by the statute, there is impliedly
included in the grant, even without special mention, every power
and every control the denial of which would render the grant itself
ineffective. Thus where an Act confers jurisdiction it impliedly
also grants the power of doing all such acts or employ such means
as are essentially necessary to its execution.
19.XXX
20. In ascertaining a necessary implication, the Court simply
determines the legislative will and makes it effective. What is
necessarily implied is as much part of the statute as if it were
specifically written therein.
21.XXX
22.XXX
23.XXX
24.XXX
25. We have elaborated on the above matter because we often find
that when someone has a grievance that his FIR has not been
registered at the police station and/or a proper investigation is not
being done by the police, he rushes to the High Court to file a writ
petition or a petition under Section 482 Cr.P.C. We are of the
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 7/14/2026
6:55:15 PM

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opinion that the High Court should not encourage this practice and
should ordinarily refuse to interfere in such matters, and relegate
the petitioner to his alternating remedy, firstly under Section
154(3) and Section 36 Cr.P.C. before the concerned police
officers, and if that is of no avail, by approaching the concerned
Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered
by the police station his first remedy is to approach the
Superintendent of Police under Section 154(3) Cr.P.C. or other
police officer referred to in Section 36 Cr.P.C. If despite
approaching the Superintendent of Police or the officer referred to
in Section 36 his grievance still persists, then he can approach a
Magistrate under Section 156(3) of Cr.P.C. instead of rushing to
the High Court by way of a writ petition or a petition under
Section 482 Cr.P.C. Moreover he has a further remedy of filing a
criminal complaint under Section 200 Cr.P.C. Why then should
writ petitions or Section 482 petitions be entertained when there
are so many alternative remedies?
27. As we have already observed above, the Magistrate has very
wide powers to direct registration of an FIR and to ensure a proper
investigation, and for this purpose he can monitor the investigation
to ensure that the investigation is done properly (though he cannot
investigate himself). The High Court should discourage the
practice of filing a writ petition or petition under Section 482
Cr.P.C. 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 lies under Sections 36 and 154(3) before the concerned
police officers, and if that is of no avail, under Section 156(3)
Cr.P.C. before the Magistrate or by filing a criminal complaint
under Section 200 Cr.P.C. and not by filing a writ petition or a
petition under Section 482 Cr.P.C. 28. It is true that alternative
remedy is not an absolute bar to a writ petition, but it is equally
well settled that if there is an alternative remedy the High Court
should not ordinarily interfere."

In view of the aforesaid settled legal position, this Court is not inclined
to exercise its writ jurisdiction under Article 226 of the Constitution of India
in respect of the reliefs relating to registration of FIR and investigation.
Accordingly, the petition stands disposed of with a direction to
respondent No. 2 to provide all necessary assistance and aid to the
petitioner/Financial Institution for dispossessing the borrower and/or any
person claiming through him who is in unauthorised occupation of the
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 7/14/2026
6:55:15 PM

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secured asset and to restore peaceful and vacant physical possession thereof

to the petitioner/Financial Institution in accordance with law and with due
expedition in terms of the order dated 22.02.2024 passed under Section 14 of
the SARFAESI Act. Insofar as the remaining reliefs are concerned, the
petitioner shall be at liberty to avail such remedies as may be available under
law, including filing an application under Section 156(3) of The Code of
Criminal Procedure (CrPC), 1973/175(3) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 before the jurisdictional Magistrate.
(MILIND RAMESH PHADKE)
JUDGE
ojha

Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 7/14/2026
6:55:15 PM