Bornali Hazarika vs The State Of Assam And 4 Ors
2022 Latest Caselaw 2754 Gua

                                                               Page No.# 1/10

GAHC010021922021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/847/2021

         BORNALI HAZARIKA
         D/O SRI SURENDRA KUMAR HAZARIKA,
         RESIDENT OF VILLAGE MADHUPUR, WARD NO. 7, BISWANATH
         CHARIALI, PO AND PS BISWANATH CHARIALI, DIST BISWANATH, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE PRINCIPAL SECRETARY TO THE HOME
         DEPARTMENT, ASSAM SACHIBALAYA, DISPUR GUWAHATI 781006

         2:THE DIRECTOR GENERAL OF POLICE
         ASSAM POLICE HEADQUARTER
          ULUBARI
          GUWAHATI

         3:THE SUPERINTENDENT OF POLICE
          BISWANATH DISTRICT
          BISWANATH CHARIALI

         4:THE OFFICER IN CHARGE
          BISWANATH CHARIALI POLICE STATION
          BISWANATH CHARIALI

         5:SRI GOPAL SHARMA
          S/O SRI BALA KRISHNA SHARMA
         RESIDENT OF HOUSE NO. 12. SHANKARDEV PATH
         WEST KRISHNA NAGAR
          LALGANESH
          PO AND PS ODALBAKRA
          GUWAHATI 781034
          KAMRUPM ASSA
                                                                       Page No.# 2/10


Advocate for the Petitioner   : MR. J SARMAH

Advocate for the Respondent : GA, ASSAM




                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                          ORDER

Date : 05-08-2022

Heard Mr. J. Sarmah, learned counsel for the petitioner and Mr. N. Goswami, learned Junior Government Advocate, Assam for the respondent nos. 1 - 4.

2. The petitioner has instituted this writ petition under Article 226 of the Constitution of India making a grievance that undue delay is being caused in carrying out the investigation of Biswanath Chariali Police Station Case no. 61/2020 and seeking a direction to the respondent authorities to complete the investigation immediately in an expeditious manner.

3. The case that is laid in this writ petition, briefly stated, is that the petitioner is an employee in the office of the Deputy Commissioner, Biswanath district. The respondent no. 5 joined in the said office as an Assistant Commissioner in the year 2016. During the subsequent period, a relationship developed between the petitioner and the respondent no. 5 and they also entered into physical relationship. According to the petitioner, the respondent no. 5 also proposed her for marriage. It is the allegation of the petitioner that she was being cheated during the entire period when they were maintaining the Page No.# 3/10

relationship. The petitioner has further stated that she belongs to the Scheduled Caste community. When the relationship turned sour between the petitioner and the respondent no. 5, the family members of the respondent no. 5 used to abuse her with abusive language in the name of her Scheduled Caste community. Highlighting all the above facts, the petitioner had lodged a First Information Report [FIR] before the Officer In-charge of All Women Police Station, Guwahati on 04.02.2020. The said FIR had resulted into registration of a crime case being All Women Police Station Case no. 23/2020 under Sections 354A/354C/376/420/506/34 r/w Sections 3[1][xi]/3[1][xii] Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities] Act, 1989. The said crime case has, later on, been transferred to Biswanath Chariali Police Station for investigation. On being so transferred, the said case has been registered as Biswanath Chariali Police Station Case no. 61/2020. During the pendency of the investigation, the respondent no. 5 approached the Court seeking the benefit of pre-arrest bail under Section 438, Code of Criminal Procedure [CrPC], 1973. The respondent no. 5 was granted the benefit of pre-arrest bail under Section 438, CrPC by an order dated 10.11.2020 passed in A.B.554/2020.

4. The learned counsel for the petitioner has submitted that after the respondent no. 5 against whom the crime case has been registered, was granted pre-arrest bail, the investigation of Biswanath Chariali Police Station Case no. 61/2020 has progressed in a snail's pace. It is his further contention that the necessary evidence/materials in respect of the crime case have not been collected by the Investigating Authority till date which is prima facie suggestive of a lackadaisical manner on the part of the Investigating Officer of the case.

Page No.# 4/10

5. Mr. Goswami, learned Junior Government Advocate, Assam appearing for the respondent nos. 1 - 4 has submitted that the progress of investigation of Biswanath Chariali Police Station Case no. 61/2020 [erstwhile, All Women Police Station Case no. 23/2020] that had been highlighted in the written instruction placed before the Court on 22.02.2021 by the respondent no. 3 and this Court in its order dated 08.03.2021 had taken note of the progress made in the investigation of Biswanath Chariali Police Station Case no. 61/2020 [erstwhile, All Women Police Station Case no. 23/2020]. The relevant excerpts as regards the action taken by the Investigating Officer in Biswanath Chariali Police Station Case no. 61/2020 [erstwhile, All Women Police Station Case no. 23/2020] are reflected in the order of this Court on 08.03.2021 which read as under :

"Action taken by present I/O:-

The following action are taken by the present I/O

1) Recorded the statement of complainant Smt. Barnali Hazarika u/s 161 Cr.P.C. at Biswanath Chariali P.S. in presence of women constable. During examination of the complainant, she stated that the obscene photo, video etc. were stored by her in a pen drive but she denied to hand over to Police for investigation for here prestige issue.

2) I/O also visited DC office, Biswanath and met the complainant and requested her to show the P.O. i.e. office chamber of the accused Sri Gopal Sharmah, but the complainant did not co-operate with the I/O and did not show the P.O. on the ground that she had to take permission from DC to show the P.O. She also refused to show the Govt. quarter where she was allegedly raped by the accused person. In view of the above the sketch map of the P.O. could not be drawn up.

3) I/O also looked for witnesses in connection with the complainant filed by the informant, but nobody in DC office came to give statement in this regard. The I/O repeatedly told the complainant that without material evidences, witnesses etc, it is Page No.# 5/10

difficult to prove a case so requested her to be co-operative with Police in investigation of the case.

4) I/O arrested the accused person and released on bail as per order of the Hon'ble Gauhati High Court passed in connection with case no. AB 554/2020.

5) I/O also recorded the statement of accused person Shri Gopal Sharmah u/s 161 Cr.P.C., where he denied all the allegation made by the complainant against him.

Present status of the case:-

The case is pending for further investigation."

6. I have considered the submissions of the learned counsel for the parties and have also perused the materials brought on record.

7. Be that as it may, one vital question that has arisen for consideration is that if according to an informant of a case, the case is not being investigated in the right and proper manner and the relevant and vital evidences are not being collected by the I.O. of the case, whether a writ petition under Article 226 of the Constitution of India is the proper remedy. If an informant is dissatisfied with the manner the investigation is being carried out by the investigating authority, what is the remedy available for such an informant. The remedy lies in the provisions of the Code of Criminal Procedure, 1973 ['the Code' and/or 'CrPC', for short].

8. In Sakiri Vasu vs. State of Uttar Pradesh, reported in [2008] 2 SCC 409, the Hon'ble Supreme Court of India has dealt with such a situation. The relevant excerpts of the said case decision are quoted herein for ready reference :-

"11. In this connection we would like to state that if a person has a grievance that the Page No.# 6/10

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.

* * * * * * * * *

13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007 [10] SC 585 [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 orders 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 Page No.# 7/10

can order reopening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna.

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.

* * * * * * * * * *

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] CrPC 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. Even though these powers have not been expressly mentioned in Section 156[3] CrPC, 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 CrPC. 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 CrPC before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156[3].

26. 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] CrPC or other police officer referred to in Section 36 CrPC. 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] CrPC instead of Page No.# 8/10

rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

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 CrPC 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] CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC."

9. The decision in Sakiri Vasu [supra] has been referred to in the subsequent decision of the Hon'ble Supreme Court in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others, reported in [2016] 6 SCC 277, and it has been observed as under :-

"2. This Court has held in Sakiri Vasu v. State of U.P. and Ors., reported in AIR 2008 SC 907, 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 concerned Magistrate under Section 156[3], Code of Criminal Procedure. If such an application under Section 156[3], Code of Criminal Procedure 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 Page No.# 9/10

done in the matter. We have said this in Sakiri Vasu [supra] 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 concerned Magistrate under Section 156[3], Code of Criminal Procedure, 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 [supra], the impugned judgment of the High Court cannot be sustained and is hereby set aside. The concerned Magistrate is directed to ensure proper investigation into the alleged offence under Section 156[3], Code of Criminal Procedure, and if he deems it necessary, he can also recommend to the SSP/SP concerned 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 concerned Magistrate. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court."

10. From the observations made by the Hon'ble Supreme Court of India, more particularly, in paragraphs 26 and 27 in Sakiri Vasu [supra] and paragraph 3 in Sudhir Bhaskarrao Tambe [supra], this Court is of the considered view that the petitioner has an adequate and efficacious remedy under law and the remedy is to approach the learned Magistrate under Section 156[3] of the CrPC by projecting that there have not been proper investigation in the case i.e. Biswanath Chariali Police Station Case no. 61/2020 [erstwhile, All Women Police Station Case no. 23/2020] and if the petitioner does so and if the Magistrate is prima facie satisfied that the investigation in the case is not being carried out in Page No.# 10/10

a proper manner he can ensure proper investigation and also monitor the investigation in the manner, as observed in Sakiri Vasu [supra] and Sudhir Bhaskarrao Tambe [supra].

11. In the aforesaid view of the matter, this Court is of the considered view that the present writ petition with the reliefs sought for is not to be entertained as the petitioner has an adequate and efficacious remedy under the law. Consequently, this writ petition is not entertained, but liberty stands granted to the petitioner to approach the jurisdictional Magistrate under Section 156[3] of the CrPC in an expeditious manner, if so advised. It is, however, made clear that this Court has not made any observation on the merits of the claims of the petitioner. No cost.

JUDGE

Comparing Assistant