Kuldeep Singh vs State Of Punjab And Others

Avneesh Jhingan, J

The matter is taken up for hearing through video conference due to COVID-19 situation.

This is a petition under Section 482 of Cr.P.C. seeking directions to respondents No.1 to 4 [official respondents] for conducting free and impartial

investigation in an application bearing No. 389-PC-1, dated 04.02.2019, Police Station Sudhar, Tehsil Raikot, District Ludhiana.

The application was moved against respondents No. 5 to 10 [private respondents]. The allegations were that the accused persons were providing

immigration services. In the year 2017, for sending younger brother of the complainant namely Manpreet Singh to Malaysia and then to Canada, the

original passport and photographs were given. Thereafter, certain papers were got signed and payments were made in cash as well as by through

banking channel. The private respondents failed to send Manpreet Singh abroad. A representation was made to the S.S.P. Ludhiana (Rural), Jagraon

and thereafter, the matter was compromised on 06.03.2019.

Now the present petition is filed for direction to the official respondents to investigate the application which was compromised.

Mr. Malkit Singh Jandiala, learned counsel for the petitioner submits that private respondents had not adhered to the compromise and brother of the

petitioner committed suicide in July, 2019. The directions be issued to the official respondents to investigate the matter.

Ms. Samina Dhir, Deputy Advocate General, Punjab, on instructions from ASI Sukhwinder Singh, submits that the matter was looked into but the

parties arrived at a compromise.

The petitioner instead of availing legal remedies, is before this Court for issuance of directions to the official respondents.

The Supreme Court has dealt with the issue in following judgments:-

In Sakiri Vasu Versus State of U.P. and others, (2008) 2 SCC 409, held as under:-

“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 Criminal Procedure Code 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 under Section 154(3) and Section 36 Criminal Procedure Code

before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 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

under Section 154(3) Criminal Procedure Code or other police officer referred to in Section 36 Criminal Procedure Code 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)

Criminal Procedure Code instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Criminal Procedure Code

Moreover he has a further remedy of filing a criminal complaint under Section 200 Criminal Procedure Code 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 under Section 482 Criminal Procedure Code 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) Criminal

Procedure Code before the Magistrate or by filing a criminal complaint under Section 200 Criminal Procedure Code and not by filing a writ petition or

a petition under Section 482 Criminal Procedure Code.â€​

In M. Subramaniam and another Versus S. Janaki and another, (2020) 2 R.C.R. (Criminal) 788, held as under:-

(11 to 14) XX XX XX

“15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. 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 under Section 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 reopening

of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19).

In our opinion Section 156(3) CrPC 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 FIR 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) CrPC, 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 for its execution.â€​

Under the Cr.P.C. not only the remedies but complete machinery is provided. Though the alternative remedy is not an absolute bar but there is no

case made for carving out an exception in the present case to interfere under Section 482 of Cr.P.C.

The petition is dismissed.