Back
2008 (I) OLR (SC) — 105
A. K. MATHUR AND MARKANDEY KATJU, JJ.
Sakiri Vasu... Petitioner
Versus
State of U. P. and others... Respondent
Criminal Appeal No. 1685 of 2007
(Arising out of Special Leave Petition (Criminal) No. 6404/2007)
Decided on 7th December, 2007.
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 investiga¬tion 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 re-opening of the investigation even after the police submits the final report.
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. (Paras - 15 to 18)
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 482 - Constitution of India - Art. 226 - Petition with prayer for order of carrying investigation by CBI - An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice - High Court should discourage the practice of filing a writ petition or petition under Sec. 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 - In the present case, there was an investigation by the G.R.P. and also by two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide - High Court justified in rejecting the prayer for a CBI Inquiry.
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 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 ap¬proaching 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) 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 ap¬proach a Magistrate under Section 156(3) 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 ?
(Paras - 10, 25, 26 & 32)
3. CRIMINAL PROCEDURE CODE, 1973 - Sec. 156(3) - Investigation - Powers of Magistrate - There is an implied power in the Magistrate under the section 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. (Para - 24)
4. ALTERNATIVE REMEDY - Alternative remedy is not an absolute bar to a writ petition - If there is an alternative remedy the High Court should not ordinarily interfere. (Para - 28)
JUDGMENT
MARKANDEY KATJU, J. — 1. Leave granted.
2. This appeal is directed against the impugned judgment and order dated 13.7.2007 passed by the Allahabad High Court in Criminal Misc. Writ Petition No. 9308 of 2007.
3. Heard learned counsel for the parties and perused the record.
4. The son of the appellant was a Major in the Indian Army. His dead body was found on 23.8.2003 at Mathura Railway Station. The G.R.P., Mathura investigated the matter and gave a detailed report on 29.8.2003 stating that the death was due to an accident or suicide.
5. The Army officials at Mathura also held two Courts of Inquiry and both times submitted the report that the deceased Major S. Ravishankar had committed suicide at the railway track at Mathura junction. The Court of Inquiry relied on the statement of the Sahayak (domestic servant) Pradeep Kumar who made a state¬ment that “deceased Major Ravishankar never looked cheerful; he used to sit on a chair in the verandah gazing at the roof with blank eyes and deeply involved in some thoughts and used to remain oblivious of the surroundings.” The Court of Inquiry also relied on the deposition of the main eye-witness, gangman Roop Singh, who stated that Major Ravishankar was hit by a goods train that came from Delhi.
6. The appellant who is the father of Major Ravishankar alleged that in fact it was a case of murder and not suicide. He alleged that in the Mathura unit of the Army there was rampant corruption about which Major Ravishankar came to know and he made oral complaints about it to his superiors and also to his father. According to the appellant, it was for this reason that his son was murdered.
7. The first Court of Inquiry was held by the Army which gave its report in September, 2003 stating that it was a case of suicide. The appellant was not satisfied with the findings of this Court of Inquiry and hence on 22.4.2004 he made a represen¬tation to the then Chief of the Army Staff, General N.C.Vij, as a result of which another Court of Inquiry was held. However, the second Court of Inquiry came to the same conclusion as that of the first inquiry namely, that it was a case of suicide.
8. Aggrieved, a writ petition was filed in the High Court which was dismissed by the impugned judgment. Hence this appeal.
9. The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigation (in short ‘CBI’). Since his prayer was rejected by the High Court, hence this appeal by way of special leave.
10. It has been held by this Court in CBI and another v. Rajesh Gandhi and another 1997 Cr LJ 63 (vide para 8) that no one can insist that an offence be investigated by a particular agen¬cy. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.
11. 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 satisfac¬tory result in the sense that either the FIR is still not regis¬tered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an applica¬tion 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 the same provision monitor the investigation to ensure a proper investiga¬tion.
12. Thus in Mohd. Yousuf v. Smt. Afaq Jahan and another JT 2006 (1) SC 10, thi
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
