Allahabad High Court
Sunil Pal @ Sunil Kumar vs State Of U.P. And 5 Others on 31 October, 2022
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 86 Case :- APPLICATION U/S 482 No. - 22886 of 2022 Applicant :- Sunil Pal @ Sunil Kumar Opposite Party :- State Of U.P. And 5 Others Counsel for Applicant :- Mukesh Kumar Counsel for Opposite Party :- G.A. Hon'ble Karunesh Singh Pawar,J.
1. By means of present petition, the petitioner has prayed for a direction to the respondents to transfer investigation of Case Crime No.175 of 2022 under sections 147, 148, 149, 323, 325, 304 I.P.C., P.S. Bewar, district Mainpuri from police station Bewar Mainpuri to any independent investigating agency, i.e. C.B.C.I.D. or C.I.D. for fair and impartial investigation with a further prayer to the learned Magistrate to pass appropriate orders on the application dated 7.7.2022 under section 156(3) CrPC.
2. Heard learned counsel for the petitioner and learned A.G.A. for the State.
3. The Hon'ble Supreme Court of India has dealt with the powers of the Magistrate having jurisdiction, to direct registration of First Information Report, in case a cognizable offence has been committed, and also to ensure fair and effective investigation, in 2008 (2) SCC 409, Sakiri Vasu Vs. State of Uttar Pradesh and others. The following has been held in paras 14, 15, 17, 18, 24, 25, 27, 28, 29, 30 and 31:-
"14. Section 156 (3) states:
"156.(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned. The words "as abovementioned" obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.
15. 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.
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.
24. 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 under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the police station concerned 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.
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 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) Cr.P.C.
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.
29. In Union of India v. Prakash P. Hinduja (SCC vide para 133) 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 under Section 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).
30. 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 police station concerned, 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 CBI v. State of Rajasthan (SCC vide para 11), R.P. Kapur v. Sardar Pratap Singh Kairon, etc. 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. Saldanha.
31. No doubt the Magistrate cannot order investigation by CBI vide CBI v. State of Rajasthan, 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."
4. Considering the nature of the issue, I deem it appropriate to relegate the petitioner to file application before the Magistrate concerned in regard to his grievance, in accordance with law.
It is submitted on behalf of the applicant that the applicant has already filed an application dated 7.7.2022 under section 156(3) CrPC.
5. I have made a detailed reference to the contents of the judgement rendered by Hon'ble Supreme Court of India so that the Magistrate is sensitized/made aware of his powers and the onerous duty cast on him to ensure fair and effective investigation.
Learned Court below is directed to consider the case of the applicant in the light of Sakiri Vasu's case (supra).
6. Accordingly, this petition is disposed of.
Order Date :- 31.10.2022 kkb.