Page No.# 1/8 vs The State Of Assam And 2 Ors
2025 Latest Caselaw 2427 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam And 2 Ors on 29 January, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                                     Page No.# 1/8

GAHC010007462025




                                                               2025:GAU-AS:1041

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

                                 Case No. : WP(C)/407/2025

            MD. LASKAR ALI
            S/O- LATE MAYAJ UDDIN, R/O- BHANGNAMARI,
            P.O AND P.S-BHANGNAMARI,
            DIST- NALBARI, PIN-781126, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, HOME
            DEPARTMENT,
            DISPUR, GUWAHATI 6

            2:THE SUPERINTENDENT OF POLICE
             KAMRUP
             GUWAHATI
            ASSAM
             PIN-781031

            3:THE OFFICER IN CHARGE
             KAMALPUR P.S
             DIST- KAMRUP
            ASSAM
             PIN-78135

Advocate for the Petitioner   : MR. M R SODIAL, MS S Z HAYAT

Advocate for the Respondent : GA, ASSAM,
                                                                                       Page No.# 2/8

                                      BEFORE
                     HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                                ORDER

29.01.2025

Heard Ms. S.Z. Hayat, learned counsel for the petitioner and Ms. M. Barman, learned Junior Government Advocate, Assam for all the respondents.

2. The relevant and necessary events leading to the institution of the writ petition, as projected, can be stated, in brief, at first.

3. The petitioner had a grandson named Masud Ali, who was aged about 14 years at the relevant time. The petitioner has stated that his grandson, Masud Ali was engaged in the capacity of a carrier in the scrapyard of one Amirsan Ali. The scrapyard is run by Amirsan Ali and his family member at Kendukona. When his grandson, Masud Ali was working as a carrier of scrap materials in the scrapyard of Amirsan Ali on 01.10.2024, the petitioner was informed by one of his grandson's co-worker on 01.10.2024 over telephone that the deadbody of the petitioner's minor grandson, Masud Ali was found on the railway lines near Kendukona. After recovery of the body, post-mortem examination was conducted under the instruction of the authorities in the G.R.P, Rangia. As per the Post-Mortem Examination [PME] Report, the deceased sustained a number of injuries on his person. The Autopsy doctor had opined that the death was instantaneous as a result of crush injury sustained over the head, as described in the Report. The Autopsy doctor had further opined that all the injuries were ante-mortem and were caused by blunt force impact. The post-mortem examination was done in the Department of Forensic Medicine & Toxicology, Gauhati Medical College & Hospital on 02.10.2024.

4. The petitioner has stated that smelling foul-play in the death of the petitioner's grandson, he initially lodged a First Information Report [FIR] on 08.10.2024 before the Officer In-Charge, Kamalpur Police Station with a request to conduct a thorough investigation into the incident which led to the suspicious and unnatural death of his grandson. The petitioner has stated that as the Officer In-Charge, Kamalpur Police Station did not register the FIR, he had approached the Superintendant of Police, Kamrup [Rural] on 11.11.2024 requesting him to conduct an Page No.# 3/8

investigation into the unnatural death of his grandson by registering the FIR. As the FIR lodged by the petitioner before the said two authorities has not been registered till date, the petitioner has approached this Court by the instant writ petition.

5. 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.

*            *             *             *            *
                                                                                           Page No.# 4/8

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 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 Page No.# 5/8

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 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.

6. 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 Page No.# 6/8

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 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.

7. 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.

8. 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 Page No.# 7/8

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.

9. 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 above-mentioned.

10. 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] * * * * *

11. 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 Page No.# 8/8

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.

12. 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 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 by adhering to the prescription mentioned therein.

12. In view of availability of such appropriate remedy available to the petitioner under sub-

section [3] of Section 175 of the BNSS 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. Liberty, however, stands reserved to the petitioner to avail the aforesaid remedy before the jurisdictional Magistrate under Section 175[3] of the BNSS, if so advised. While not entertaining the writ petition this Court would also like to clarify that this Court has not expressed anything on merits of the allegations made in the FIRs, stated to have been submitted by the petitioner on 08.10.2024 before the Officer In-Charge, Kamalpur Police Station and dated 11.11.2024 before the Superintendent of Police, Kamrup [Rural].

JUDGE

Comparing Assistant