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Judgment
S. Ashok Kumar, J.—These criminal original petitions have been filed u/s 482 Cr.P.C. for the relief of either directing the concerned police
to register a case or to transfer the investigation from the regular police to some other investigating agency or fixing a time limit for filing the final
report etc.
Petitions are being filed, wherein, in some cases, the complainant has not even gone to the police station but has sent the complaint by post
either to the concerned police or to the Superintendent of Police. Thereafter, they approach the High Court for issuing direction to register the
case, forgetting the provision contained u/s 154 Cr.P.C.
There are also petitions for direction to register a case in civil disputes as well as in family disputes in which police have no business to interfere.
There are also some petitions for directing the concerned police to further investigate the matter.
As already stated, a complaint should be given to the concerned police and if the Station House Officer refused to register the complaint, then a
copy of the complaint can be sent to the Superintendent of Police or any other competent officer mentioned u/s 36 Cr.P.C. But the petitioners are
coming to High Court directly u/s 482 Cr.P.C to give a direction to the concerned police to register a case, which is not a correct procedure.
If a person is aggrieved of the refusal by the police to register a case, he can resort to the procedure laid down u/s 156(3) Cr.P.C. But without
resorting to the provisions u/s 156(3), filing the petitions directly in the High Court is a practice which has to be deprecated.
The Code of Criminal Procedure contains alternative remedy in the code itself, that the affected party can approach the lowest Court among
Criminal Courts, the party should approach only the Lowest Criminal Court, that is Judicial Magistrate and should not rush to the High Court for
the same remedy especially when the High Court is already flooded with lakhs of cases.
Even if a party is aggrieved that the final report has not been properly filed, that is some accused either deleted or some Sections of IPC have
not been included, even the Magistrate has got power to pass orders for further investigation u/s 173(8) of Cr.P.C.. The power u/s 173(8)
Cr.P.C. can be exercised only by the concerned Magistrate and not by the High Court, only in exceptional cases. An affected party can approach
this Court u/s 482 Cr.P.C. only in rarest of rare cases, where grave injustice have been done even after approaching the appropriate forum.
The Honourable Supreme Court in Sakiri Vasu v. State of U.P and Ors. reported in 2007 AIOL 1861 dated 07.12.2007, after referring
several decisions has observed as follows:
In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR u/s 154 Cr.P.C., then
he can approach the Superintendent of Police u/s 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 u/s 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application u/s 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 the same provision monitor the investigation to ensure a
proper investigation.
Thus in Mohd. Yousuf Vs. Smt. Afaq Jahan and Another, , this Court observed:
The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation u/s 156(3) of the Code.
If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of
enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After
all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence
in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many
words while directing investigating u/s 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police
station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps
contemplated in Chapter XII of the Code only thereafter:.
The same view was taken by this Court in Dilawar Singh Vs. State of Delhi, . We would further clarify that even if an FIR has been registered
and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a
person can approach the Magistrate u/s 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other
suitable steps and pass such orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys u/s 156(3)
Cr.P.C.
Section 156(3) states:
Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.
The words ''as abovementioned'' obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the Police Station.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the
Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the
police to do the investigation properly, and can monitor the same.
The power in the Magistrate to order further investigation u/s 156(3) is an independent power, and does not affect the power of the
investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-
opening of the investigation even after the police submits the final report, vide State of Bihar and Another Vs. J.A.C. Saldanha and Others, .
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.
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.
The reason for the rule (doctrine of implied power) is quite apparent. Many matter of minor details are omitted from legislation. As Crawford
observes in his ''Statutory Construction'' (3rd edn. page 267):
If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would
likely be defeated by a most insignificant omissio.
In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power
in the Magistrate u/s 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station
to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the
same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the
above provision.
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 u/s 482
Cr.P.C. We are of the 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 u/s 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 u/s 156(3).
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 u/s 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 u/s 156(3) Cr.P.C. instead of rushing to the High
Court by way of a writ petition or a petition u/s 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint u/s 200 Cr.P.C. Why
then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?
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 u/s 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, u/s 156(3) Cr.P.C. before
the Magistrate or by filing a criminal compliant u/s 200 Cr.P.C and not by filing a writ petition or a petition u/s 482 Cr.P.C.
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 Union of India (UOI) Vs. Prakash P. Hinduja and Another, , it has been observed by this Court that a Magistrate cannot interfere with the
investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the
police. If the Magistrate on an application u/s 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the
officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation
and can further monitor the same (though he should not himself investigate).
It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the
officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior
in rank to the officer-in-charge of the police station and such superior officer can,if he so wishes, do the investigation vide Central Bureau of
Investigation Vs. State of Rajasthan and Another, , R.P. Kapur and Others Vs. Sardar Pratap Singh Kairon and Others, etc. Also the State
Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police
station vide State of Bihar v. A.C. Saldanna (supra).
31.No doubt the Magistrate cannot order investigation by the CBI vide CBI v. State of Rajasthan and Anr. (Supra), but this Court or the High
Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and
exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of
them.
32.In the present case, there was an investigation by the G.R.P. Mathura and also two Courts of Inquiry held by the Army authorities and they
found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry.
In Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Others Vs. Sahngoo Ram Arya and Another, , this Court observed
that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material
on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency.
A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
Their Lordships of Honourable Supreme Court have analyzed the various case laws and provisions of Cr.P.C. and have given necessary
directions.
Section 482 Cr.P.C. grants inherent powers to the High Court, whenever it is necessary to give effect to any order under the code or to
prevent the abuse of process of any Court or otherwise to secure the ends of justice. This section gives power to the High Court to entertain
applications which are not contemplated by this Code. Therefore, if the High Court feels that ends of justice require that an order should be made
in an application, although the application is not contemplated by the Code, the High Court will entertain the application, and make the necessary
orders to secure the ends of justice. The jurisdiction of the High Court under this section to correct judicially the judgment of the lower Court is a
very exceptional jurisdiction which should be exercised in the most exceptional the rarest of rare cases. The question is not essentially one of
jurisdiction but is that of judicial discretion. The provision is intended to meet the three situations catalogued therein and is distinct from appellate or
revisional jurisdiction. This section is not intended to by pass the procedure prescribed. Inherent power is wide in nature. Such power is to be
exercised with great restraint. Wider would be the power, greater should be the restraint.
Therefore, all these petitions are dismissed with liberty to the petitioners to approach the concerned forum as envisaged u/s 156(3) Cr.P.C., or
u/s 173(8) Cr.P.C. according to the facts of each case to redress their grievance, if they are aggrieved.