Tofik Ali vs The State Of Assam And 8 Ors
2024 Latest Caselaw 8302 Gua

Gauhati High Court

Tofik Ali vs The State Of Assam And 8 Ors on 13 November, 2024

Author: Manish Choudhury

Bench: Manish Choudhury

                                                               Page No.# 1/9

GAHC010230692024




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

                          Case No. : WP(C)/5818/2024

         TOFIK ALI
         SON OF TALEF ALI,
         VILLAGE- BONGORA, P.S.- AZARA,
         DISTRICT- KAMRUP, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 8 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM,
         HOME DEPARTMENT, DISPUR, GUWAHATI-06.

         2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI-06.

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

         4:THE DIRECTOR GENERAL OF POLICE
          CID
          ULUBARI
          GUWAHATI- 781007.

         5:THE COMMISSIONER OF POLICE

          KAMRUP(METRO)
          ASSAM.
                                                           Page No.# 2/9

            6:THE OFFICER-IN-CHARGE
            AZARA POLICE STATION
             KAMRUP(M).

            7:KAILASH KUMAR BARMAN
             SON OF LATE PRANESHAR BARMAN

            VILLAGE- AZARA
            THAKURIA PARA

            P.O. AND P.S.- AZARA

            DIST.- KAMRUP(M)
            ASSAM

            PIN- 781017.

            8:MD. NURUL ISLAM
             SON OF MD. HANIF ALI

            VILLAGE- PASONIA PARA (ISLAMPUR)

            P.O.- BONGORA
             P.S.- AZARA

            PIN- 781015
            DIST.- KAMRUP(M)

            ASSAM.

            9:HANIF ALI
             SON OF LATE DAI ALI

            VILLAGE- PASONIA PARA (ISLAMPUR)

            P.O.- BONGORA
             P.S.- AZARA

            PIN- 781015
            DIST.- KAMRUP(M)

            ASSAM

Advocate for the Petitioner   : MR. S DAS, MD A S AHMED

Advocate for the Respondent : GA, ASSAM,
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                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           ORDER

Date : 13.11.2024

1. Heard Mr. S. Das, learned counsel for the petitioner and Mr. H. Sarma, learned Additional Senior Government Advocate, Assam for the respondent nos. 1 - 6.

2. The petitioner in this writ petition has stated to have lodged a First Information Report [FIR] before the Officer In-Charge, Azara Police Station on 10.05.2024 alleging about harassment caused to him by the accused persons, named therein. The petitioner has further stated that when the said FIR was not registered by the Officer In-Charge, Azara Police Station, he informed the same to the Additional Director General of Police, CID, Assam by way of a representation dated 21.05.2024. The said representation was duly received under the seal and signature of the said office. The petitioner has further stated that the Office of the Additional Director General of Police [CID], Assam forwarded the said representation of the petitioner to the Commissioner of Police, Kamrup [Metro] at Guwahati vide Letter no. 1238 dated 21.05.2024 for necessary action. Despite forwarding of the application to the Office of the Commissioner of Police, Kamrup [Metro], Guwahati, no action has been taken either on the FIR or on the representation by any of the respondent authorities. With such grievance, the petitioner has approached this Court by the instant writ petition under Article 226 of the Constitution of India seeking inter-alia a direction to the respondent authorities, more particularly, the respondent no. 6 to register a case on the basis of the FIR lodged by the petitioner on 10.05.2024 and to make investigation into the case in respect of the alleged irregularities committed by the respondent nos. 7 - 9, impleaded in this writ petition.

3. Mr. Sarma, learned Additional Senior Government Advocate has submitted that the petitioner has an appropriate remedy under Section 156[3] of the erstwhile Code of Criminal Procedure, 1973 and/or under Section 175[3] of the Bharatia Nagarik Suraksha Sanhita [BNSS], 2023.

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4. At this juncture, it would be apposite to refer to the following observations made by the Hon'ble Supreme Court of India in Sakiri Vasu vs. State of Uttar Pradesh and others, reported in [2008] 2 SCC 409 :-

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 Cr.P.C., then he can approach the Superintendent of Police under Section 154[3] Cr.P.C. 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] Cr.P.C. 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 [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 order[s] as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156[3] CrPC.

* * * * *

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 Page No.# 5/9

investigate the case even after submission of his report vide Section 173[8]. Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. J.A.C. Saldanha [SSC 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.

* * * * *

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 Page No.# 6/9

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.

5. The observations made by the Hon'ble Supreme Court of India in Sakiri Vasu [supra] have again been reiterated in the subsequent decision in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others, reported in [2016] 6 SCC 277, in the following manner :-

2. This Court has held in Sakiri Vasu vs. 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 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 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 Page No.# 7/9

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 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. The observations made in Sakiri Vasu [supra] and Sudhir Bhaskarrao Tambe [Supra] have also been followed in the three-Judges Bench decision in M. Subramaniam and another vs. S. Janaki and another, reported in [2020] 6 SCC 728.

7. The provisions contained in Section 156[3], CrPC had provided for a check by the Magistrate on the Police performing his duties under Chapter XII, CrPC. There was 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 might be necessary for ensuring a proper investigation including monitoring of the same.

8. Sub-section [3] of Section 156, CrPC reads as under :-

156. Police Officer's power to investigate cognizable case -

      [1]    *               *                   *                   *                    *
      [2]    *               *                   *                   *                    *
             [3]    Any Magistrate empowered under Section 190 may order such an investigation as
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              above-mentioned.

9. The Code of Criminal Procedure, 1973 has since been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 ['the BNSS', for short]. Sub-section [3] of Section 175 of the BNSS reads as under :-

175. Police Officer's power to investigate cognizable case-

        [1]   *              *                  *                   *                   *
        [2]   *              *                  *                   *                   *
        [3]       Any Magistrate empowered under Section 210 may, after considering the application

supported by an affidavit made under sub-section [4] of Section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.

[4] * * * * *

10. Sub-section [4] of Section 173 of the BNSS has provided that any person aggrieved by a refusal on the part of an Officer In-Charge of a Police Station to record the information referred to in sub-section [1], may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any Police Officer subordinate to him, in the manner provided by the BNSS, and such Officer shall have all the powers of an Officer In-Charge of the Police Station in relation to that offence failing which such aggrieved person may make an application to the Magistrate.

11. Having regard to the provisions contained in Section 156[3], CrPC and Section 175[3], BNSS and the observations made in the decisions mentioned above, this Court is finds that the power used to be exercised by the Magistrates earlier under Section 156[3], CrPC is also exercisable under Section 175[3], BNSS. This Court is also of the considered view that if the petitioner has any grievance as regards the non-registration of the FIR he can approach the jurisdictional Magistrate concerned under Section 175[3], BNSS.

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12. In view of availability of such appropriate remedy available to the petitioner under sub- section [3] of Section 175 of the BNSS, 2023 and in the light of the observations of the Hon'ble Supreme Court in Sakiri Vasu [supra] and Sudhir Bhaskarrao Tambe [supra], this writ petition seeking the above direction is not entertained reserving the liberty to the petitioner to avail the remedy of aforesaid jurisdictional Magistrate under Section 157[3] of the BNSS, 2023, if so advised. While not entertaining the writ petition this Court would like to clarify that this Court has not expressed anything on merits as regards the allegations made in the FIR submitted by the petitioner on 10.05.2024 before the Officer In-Charge, Azara Police Station.

JUDGE

Comparing Assistant