Narayan Chandra Dey vs The State Of Assam And 6 Ors
2022 Latest Caselaw 1700 Gua

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GAHC010078212022




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

                         Case No. : WP(C)/2776/2022

         NARAYAN CHANDRA DEY
         S/O- LATE BHUPATI CHANDRA DEY, R/O- MALIGAON RAILWAY QUARTER
         NO. 96/B, NAMBARI HILL TOP ROAD, P.O. MALIGAON, P.S. JALUKBARI,
         GUWAHATI-781011, DIST.- KAMRUP(M), ASSAM



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT
         OF ASSAM, HOME AND POLITICAL AFFAIRS DEPARTMENT, DISPUR,
         GUWAHATI-6.

         2:THE DIRECTOR GENERAL OF POLICE
         ASSAM
          ULUBARI
          GUWAHATI-781007.

         3:THE COMMISSIONER OF POLICE
          GUWAHATI
          KAMRUP(M)
          PANBAZAR
          GUWAHATI-781001.

         4:THE SUPERINTENDENT OF POLICE
          KAMRUP(M)
          PANBAZAR
          GUWAHATI-781001.

         5:THE OFFICER-IN-CHARGE
          PANBAZAR POLICE STATION
          PANBAZAR
          GUWAHATI-781001.
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            6:DEBASHISH GHOSE
             MANAGING PARTNER
             M/S. D.S. REALTORS
             S/O- LATE SACHINDRA NATH GHOSE
             R/O- A.T. ROAD
             PANDAV NAGAR
             GUWAHATI-781012
             P.O. PANDU
             DIST.- KAMRUP(M)
            ASSAM

            7:SANJIB BHATTA
             S/O- LATE HIREN KUMAR BHATTA
             R/O- A.T. ROAD
             PANDAV NAGAR
             GUWAHATI-781012
             P.O. PANDU
             DIST.- KAMRUP(M)
            ASSA

Advocate for the Petitioner   : MR. S C BISWAS

Advocate for the Respondent : GA, ASSAM




                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                          ORDER

Date : 20-05-2022

Heard Mr. S.C. Biswas, learned counsel for the petitioner and Mr. K. Gogoi, learned Additional Senior Government Advocate Assam for the respondent nos. 1 - 5.

2. This writ petition under Article 226 of the Constitution of India has been preferred by the writ petitioner expressing dissatisfaction with the manner of investigation that is being carried out in connection with Panbazar Police Station Case no. 303/2020 registered for the offence under Section 468, Indian Penal Page No.# 3/11

Code [IPC] at the instance of the writ petitioner as the informant.

3. The case projected on behalf of the petitioner, in brief, is that he is the owner and pattadar of a plot of land measuring 2 Kathas & 1½ Lessas, covered by Dag no. 532 [Old]/344[New] and patta no. 121[Old]/892[New], located in Revenue Village - Gotanagar, Mouza - Jalukbari within Kamrup [Metro] district [hereinafter referred to as 'the subject-land' for easy reference]. It has been averred that the petitioner had handed over the subject-land to a builder firm, M/s D.S. Realtors where the respondent no. 6 and the respondent no. 7 are the partners, by executing a Power of Attorney dated 19.02.2015 on the condition that M/s D.S. Realtors would hand over the petitioner's share in the said building, contemplated to be constructed over the subject-land, within a period of 3 years and 6 months from the date of permission accorded by the competent authority.

3.1. It has been alleged that the respondent no. 6 and the respondent no. 7 instead of initiating the project, prepared a forged sale deed putting the same sale deed number and same date of registration by scanning the sale deed of the petitioner and submitted it before the Revenue Authorities of Kamrup [M] for mutation and, thus, got the subject-land mutated in their favour. Having learnt about the alleged act of forgery upon verification of the documents available in the office of the Guwahati Metropolitan Development Authority [GMDA], the petitioner had earlier lodged a First Information Report [FIR] before the Officer In-charge, Panbazar Police Station and the said FIR was registered as Panbazar Police Station Case no. 299/2018 under Sections 406/420/468/34, IPC. In the course of investigation of the case, the documents Page No.# 4/11

were verified, according to the petitioner, from the office of the concerned Sub- Registrar and it was revealed that the sale deed submitted by the respondent no. 6 and the respondent no. 7 was a forged one with same registration number.

3.2. It has been averred that the sale deed was executed and registered in favour of the petitioner in the year 1984. The concerned authority in the Revenue branch had thereafter, cancelled the mutation done on the basis of the forged sale deed and restored the name of the petitioner in the revenue records in respect of the subject-land. It has been asserted that the respondent no. 6 and the respondent no. 7 had, in the meantime, obtained permission from the authority in the GMDA by placing the same forged sale deed and mutation order despite they were in the nature of forged documents and obtained permission from the GMDA.

3.3. The petitioner had earlier preferred a writ petition, W.P.[C] no. 6159/2019 seeking proper reliefs in respect of the afore-stated alleged transaction. The investigating authority had thereafter, submitted a charge sheet in connection with Panbazar Police Station Case no. 299/2018 against the respondent no. 6 and the respondent no. 7. The grievance of the petitioner is that in the course of investigation of Panbazar Police Station Case no. 299/2018, the alleged forged sale deed was never sent for forensic examination and the documents relating to the mutation proceedings and the sale deed copy furnished by the respondent no. 6 and the respondent no. 7 before the GMDA for granting them permission, were never seized.

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3.4. It is also the grievance of the petitioner that the respondent no. 6 and the respondent no. 7 had approached this Court seeking the benefit for pre- arrest bail under Section 438, CrPC in connection with Panbazar Police Station Case no. 299/2018 by preferring an application, A.B. no. 2435/2018 and it was submitted before the Court at the time of hearing that the case had been compromised and amicably settled between the parties as a learned Advocate allegedly appearing on behalf of the petitioner in that hearing had submitted, without any instructions from the petitioner that the parties had compromised and amicably settled the issues between them. On the basis of the above submission made on behalf of the petitioner allegedly by the learned engaged counsel for the petitioner, whom the petitioner had never engaged, the respondent no. 6 and the respondent no. 7 were granted the benefit of pre- arrest bail. Aggrieved by the order of pre-arrest bail passed in favour of the respondent no. 6 and the respondent no. 7, the petitioner had preferred an interlocutory application, I.A.[Crl.] no. 482/2019 seeking appropriate relief.

4. Highlighting all the above sequence of events, the petitioner submitted a complaint before the respondent no. 3 on 29.05.2020 and the said complaint stood forwarded to the Deputy Commissioner of Police, Central Police District, Guwahati on 30.05.2020 for taking necessary action. On the basis of the complaint, a crime case being Panbazar Police Station Case no. 303/2020 under Section 468, IPC came to be registered by the Officer In-charge, Panbazar Police Station on 03.06.2020. The grievance expressed by the petitioner in this writ petition is that despite registration of Panbazar Police Station Case no. 303/2020 as far back as on 03.06.2020, the investigation of the case has not been progressed satisfactorily. Expressing his dissatisfaction, the petitioner had Page No.# 6/11

filed a complaint/representation before the respondent no. 3 on 18.08.2021 seeking a fair, proper and speedy investigation of the case and in the right direction. It is the case of the petitioner that despite submitting complaint/representation the subsequent occasion also, the investigation of the case has not been done in a fair and proper manner.

5. Be that as it may, another vital question that has arisen for consideration is that if according to an informant a case is not being investigated in a fair, appropriate and speedy manner and the relevant and vital evidences are not being collected by the Investigating Officer of 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 to such an informant. The remedy lies in the provisions of the Code of Criminal Procedure, 1973 ['the Code' and/or 'CrPC', for short].

6. 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 excerpt 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 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 Page No.# 7/11

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 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 Page No.# 8/11

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 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 Page No.# 9/11

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."

7. 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. Heman 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 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 Page No.# 10/11

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."

8. 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. Panbazar Police Station Case no. 303/2020 and if he does so and if the Magistrate is prima facie satisfied that the investigations in the case is not being carried out in 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].

9. 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 Page No.# 11/11

the CrPC in 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