R/SCR.A/6994/2017 ORDER DATED: 22/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6994 of 2017
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JAWAHARBHAI GAUTAMCHANDRA PATHAK
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR SIDDHANT PARIKH for MR RUSHABH R SHAH(5314) for the
Applicant(s) No. 1
MR SOAHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 22/02/2023
ORAL ORDER
1. By way of this petition under Articles 226 and 227 of the Constitution of India, a prayer is made to the effect that there is a wrong complaint filed on 17.05.2017 before respondent no. 3 - Police Inspector, Pardi Police Station, Valsad indicating commission of cognizable offence, but so far no steps have been taken to register FIR under the relevant provisions of Code of Criminal Procedure and as such, by invoking writ jurisdiction, the petitioner has prayed for the reliefs which are set out in paragraph 6.
2. The case of the petitioner is that the petitioner was Deputy Page 1 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 Sarpanch of the Bagvada Gram Panchayat for the period commencing from 2006 to 2011 and was also member of the said gram panchayat from 2011 to 2016 and later on again from 2016 till date, the petitioner is discharging his duty as Deputy Sarpanch. On account of one false FIR being C.R. No. II- 3 of 2011 registered before Pardi Police Station, Valsad, for the offences punishable under Section 323, 504, 506(2) and 114 of the Indian Penal Code was filed against the petitioner and his brother, but actually no incident has taken place and the same was a got-up story by the Investigating Officer of the Pardi Police Station. In fact, according to the petitioner, the reason for filing such false information in the form of FIR is that for the period from 2011 to 2016 some persons who were running Gayatri Stone Quarry were illegally mining the stones from the hilly area and since the petitioner tried to stop the said illegal activity of mining, the accused persons in collusion with each other has lodged false First Information Report against the petitioner and his brother. Thereafter investigation has been carried out in that respect and charge sheet was also filed and the case was registered as Criminal Case No. 97 of 2011 before Page 2 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 the learned Judicial Magistrate, First Class, Pardi. The learned Magistrate after adjudicating was pleased to pass an order of sentence to the accused persons to undergo six months imprisonment vide order dated 09.03.2016 and feeling aggrieved by the said conviction, the petitioner has challenged the said order by way of filing appeal being Criminal Appeal No. 9 of 2017 before the learned Sessions Court, Valsad, who then after adjudication was pleased to acquit the petitioner by observing that the Investigating Officer and the Doctor had colluded with each other and concocted false certificate with a view to see that the present petitioner can be convicted and it was also observed that wrong evidence has been brought on record with an ulterior motive and the court expressed an opinion that if the petitioner wants to pursue further against the wrong doers then the petitioner has no option but to approach the government machinery against wrong doers and as such, based upon that, the petitioner on account of such observation gave written complaint to S.P. Valsad and Police Sub Inspector, Pardi Police Station as well as to the office of I.G., Surat, but till date no steps have been taken by registering FIR against the Page 3 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 wrong doers and it is on account of such, the petitioner is constrained to approach this Court by way of present petition under Articles 226 and 227 of the Constitution of India.
3. After notice having been issued, learned advocate Mr. Siddhant Parikh has submitted that in such a situation when clear observation has been made by the learned Sessions Court to permit the petitioner to take a step by approaching the government machinery against the wrong doers and when that is being initiated the wrong doers are allowed to freely continue the activity since no action has been taken by the concerned police authorities in connection with his application and as such, the petitioner is constrained to approach this Court by way of this petition for the reliefs as set out in paragraph 6. Mr. Parikh has further submitted that whenever there is breach of fundamental right or any statutory duty not being observed, it is always open for the writ court to exercise jurisdiction under Articles 226 of the Constitution of India and there is no expressed bar to exercise such jurisdiction of cognizable offence. As per Mr. Parikh that despite aforesaid step having Page 4 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 been taken, the grievance of the petitioner has not be attended properly by the respondent authority and therefore, that being the situation, appropriate direction in the application deserves to be issued.
4. As against this, Mr. Joshi, learned APP appearing on behalf of the respondent authority has submitted that in a identical situation, the co-ordinate Bench of this Court has passed the order on 21.12.2020 in Special Criminal Application No. 8425 of 2020 and has submitted that relying upon the decision delivered by the Hon'ble Apex Court, the co-ordinate Bench has in similar circumstance has expressed an opinion that writ jurisdiction may not be exercised and for the purpose of substantiating his submission, learned APP has drawn attention of this Court to paragraph 3 and 5 of the said decision and as such, has requested that instead of issuing any direction in the application, the petitioner is at liberty to approach as observed in the said order and as such, has submitted that writ may not be entertained.
5. Having heard the learned advocates appearing for the Page 5 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 respective parties and having gone through the material on record, it appears that as per the assertion of the present petitioner, written application which has been submitted on 17.05.2017 appears to have allegedly not been attended by the authority, but in that situation, the observations contained in the decision delivered by the co-ordinate Bench deserves consideration. Hence, Court deems it proper to quote hereunder paragraphs 3 and 5 :
"3. At this stage, it would be apposite to incorporate the observations made by the Apex Court in the case of M. Subramaniam v. S. Janki passed in Criminal Appeal No.102 of 2011. The Apex Court has observed thus;-
"5.While it is not possible to accept the contention of the appellants on the question of locus standi, we are inclined to accept the contention that the High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the judgment of this Court in Sakiri Vasu v. State Of Uttar Pradesh And Others in which it has been inter alia held as under:
"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 of CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC 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 Page 6 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 person to file an application (2008) 2 SCC 409 under Section 156(3) CrPC 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 investigation.
12. Thus in Mohd. Yousuf v. Afaq Jahan this Court observed: (SCC p. 631, para 11) "11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 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 investigation under Section 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 complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."Page 7 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023
R/SCR.A/6994/2017 ORDER DATED: 22/02/2023
13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para
17). 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 under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.
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 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.
16. 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 Page 8 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 final report, vide State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19).
17. 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.
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 for its execution."
6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others2, in which it is observed.
"2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court Page 9 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the Page 10 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 investigating (2016) 6 SCC 277 officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.
8. In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18.09.2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest."
6. In view of the aforesaid observations and in view of the facts which are set out in the petition, this Court is of the opinion that since the petitioner has not approached the concerned magistrate and has directly approached this Court, which is an undisputed position, the Court is not inclined to exercise extraordinary jurisdiction. Accordingly, for the reasons stated above, the petition is not entertained and same is Page 11 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023 R/SCR.A/6994/2017 ORDER DATED: 22/02/2023 accordingly dismissed. However, it is made clear that this dismissal would not come in the way of the present petitioner to take appropriate steps before the appropriate forum in the context of the application which has been given by the petitioner. It is also made clear that this Court has not expressed any opinion on merits with regard to the grievance tried to be voiced out by the petitioner.
7. With this observations, the present petition is dismissed. Notice is discharged.
Sd/-
(ASHUTOSH SHASTRI, J) phalguni Page 12 of 12 Downloaded on : Tue Feb 28 20:32:27 IST 2023