Allahabad High Court
P Wife Of U Daughter Of R Resident Of ... vs State Of U.P. Thru. Its Prin. Secy. Deptt ... on 6 February, 2025
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:7630-DB
Court No. - 9
Case :- CRIMINAL MISC. WRIT PETITION No. - 1035 of 2025
Petitioner :- P Wife Of U Daughter Of R Resident Of Village C Dist. Sitapur (Complainant Of Case Crime No 5/2025
Respondent :- State Of U.P. Thru. Its Prin. Secy. Deptt Of Home Lko. And 6 Others
Counsel for Petitioner :- Rajesh Kumar Agnihotri
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard the learned counsel for the petitioner and the learned A.G.A. who appears for the State.
2. This petition has been filed by the petitioner with the following main prayer:-
"(i) Issue a writ, order or direction in the nature of Mandamus commanding the opposite party no.2 ie. Superintendent of Police, Sitapur to monitor and proceed with the investigation of the FIR/Case Crime No.0005 of 2025, under Sections 70(1), 331(6), 352, 351(3) of BNS and Section 3(2)(v) SC/ST Act, Police Station Sandhana, District Sitapur and take necessary action in accordance with law for completion of the investigation in proper and fair manner and also protect the life and liberty of the petitioner and her family members."
3. It is the case of the petitioner that an F.I.R. was lodged by her on 01.01.2025. The Investigating Officer is not taking interest in proper investigation of the case. Hence this petition has been filed.
4. Learned A.G.A. on the other hand, has raised a preliminary objection saying that for the relief, as claimed in this petition, the petitioner has statutory remedy of filing a Complaint/ Application before the Judicial Magistrate, concerned, under Section 156 (3) Cr.P.C. as observed by the Hon'ble Supreme Court in the case of Sakiri Vasu Vs. State of U.P. and Others reported in 2008 (2) SCC 409 and in a recent judgment of Hon'ble Supreme Court in M. Subramaniam v. S. Janaki, (2020) 16 SCC 728, an application can be filed before the Magistrate concerned who has very wide powers to direct and ensure a proper investigation. He can also monitor such investigation so that the investigation is done properly in a fair and impartial manner.
5. Being germane to the issue, paragraph nos.6 and 7 of the judgment passed by the Hon'ble Supreme Court in M. Subramaniam (supra) are quoted hereinbelow :-
6. 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 U.P. [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] in which it has been inter alia held as under : (SCC pp. 412-14, paras 11-18)
?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 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 person to file an application 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 [Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627 : (2006) 1 SCC (Cri) 460] 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.?
13. The same view was taken by this Court in Dilawar Singh v. State (NCT of Delhi) [Dilawar Singh v. State (NCT of Delhi), (2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330] , SCC para 18. 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 final report, vide State of Bihar v. J.A.C. Saldanha [State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC para 19 : 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.?
7. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage [Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 : (2016) 2 SCC (Cri) 549] , in which it is observed : (SCC p. 278, paras 2-4)
?2. This Court has held in Sakiri Vasu v. State of U.P. [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] , 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 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 [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] 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 [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] , 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 investigating 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.?
6. It is needless to say that the investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth as held by Hon'ble Supreme Court in Babubhai v. State of Gujarat, (2010) 12 SCC 254.
7. Thus, in view of the aforesaid overall discussion, this petition is finally disposed of with a direction to the petitioner to approach the Magistrate concerned under Section 175(3) B.N.S.S., corresponding Section 156 (3) Cr.P.C., who shall look into the matter and ensure that the investigation is carried out by the Investigating Officer keeping in view the para no.107 of U.P. Police Regulation and observation made by Hon'ble Supreme Court in Babubhai (Supra).
Order Date :- 6.2.2025
Mahesh
