Page No.# 1/12 vs The State Of Assam And 5 Ors
2025 Latest Caselaw 4367 Gua

Gauhati High Court

Page No.# 1/12 vs The State Of Assam And 5 Ors on 24 March, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                             Page No.# 1/12

GAHC010062202024




                                                        2025:GAU-AS:4445

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

                        Case No. : WP(C)/1721/2024

         MANJULA
         DAUGHTER OF LATE RATI KANTA SARMA,
         HOUSE NO. 3, JOGEN BARUAH LANE,
         SILPUKHURI, POST OFFICE GUWAHATI- 781003,
         DISTRICT KAMRUP(M), ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM,
         HOME DEPARTMENT, DISPUR, GUWAHATI-6.

         2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI- 781006.

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

         ASSAM.

         4:THE COMMISSIONER OF POLICE
          GUWAHATI CITY
          P.O.- GUWAHATI- 781001
         ASSAM.

         5:THE OFFICER-IN-CHARGE
          CHANDMARI POLICE STATION
          P.O.- GUWAHATI- 781003
                                                                                      Page No.# 2/12


               DISTRICT- KAMRUP(METROPOLITAN)

               ASSAM.

               6:ZINZI VIDYARTHI
                HOUSE NO. 3
                JOGEN BARUAH LANE

               SILPUKHURI
               POST OFFICE- GUWAHATI- 781003

               DISTRICT- KAMRUP(M)
               ASSAM

Advocate for the Petitioner    : MR. B K SEN, P SINGH,I KHATOON,N HASAN,MR A HUSSAIN

Advocate for the Respondent : GA, ASSAM,

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER

Date : 24.03.2025

Heard Mr. B.K. Sen, learned counsel for the petitioner and Ms. S. Konwar, learned Junior Government Advocate, Assam for the respondent nos. 1-5.

2. The petitioner has approached this Court instituting the instant writ petition under Article 226 of the Constitution of India seeking the following reliefs / directions :-

[A] A writ in the nature of nature of mandamus shall not be issued directing the Officer-In-Charge, Chandmari Police Station, Guwahati-3, to register the case under section 327/336/337/352/426/504/509 I.P.C; based on the F.I.R dated 23.12.2021 Page No.# 3/12

[Annexure-3], the F.I.R. dated 6.5.2022 [Annexure-4], and the F.I.R. dated 22.1.2024 [Annexre-7] lodged by the petitioner and for investigation of the cases in accordance with the law; and/or, [B] A writ in the nature of nature of mandamus shall not be issued directing the respondent authorities to act in accordance with the law under section 23 and 24 of the Mental Health Act, 1987, and also to provide for the security and protection to the life and property of the petitioner; and/or, [C] Such further and other orders shall not be passed as your Lordships may deem fit and proper under the facts and circumstances of the case in the interest of justice; and, [D] To make the Rule absolute on perusal of records and after hearing the parties to the case.

3. In so far as the prayer regarding a direction under Section 23 & Section 24 of the Mental Health Act, 1987 is concerned, this Court had observed in the Order dated 01.04.2024 that the Mental Health Act, 1987 had already been repealed. By the Order, the petitioner was directed to make necessary corrections in the writ petition. Though some corrections have been made by the petitioner, there is no correction made with regard to Prayer - B, quoted above, is concerned.

4. The case of the petitioner is also to the effect that the petitioner had submitted First Information Reports [FIRs] before the Officer-in-Charge, Chandmari Police Station on 23.12.2021, 06.05.2022 and 22.01.2024 respectively, but, the Officer-in-Charge, Chandmari Police Station did not register those FIRs to commence investigation into the offences, which, according to the petitioner, are cognizable offences.

5. From the scheme contained in Code of Criminal Procedure, 1973 ['the code' or 'CrPC.', for short], more particularly, Section 154 and 156 thereto, it is discernible that if a person has a grievance that the Officer In-Charge of the Jurisdictional Police Station is not registering his/her FIR under Section 154 [1], Cr.P.C., then he/she can approach the Superintendent of Police under Section 154 [3] CrPC. by an application in writing. If that does not yield any Page No.# 4/12

satisfactory result in the sense that either the FIR is still not registered or that even after registering it, no proper investigation has been conducted, it is open to the aggrieved person to file an application under Section 156 [3], CrPC before the jurisdictional Magistrate. If an application under Section 156 [3], CrPC 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 has been made. The Magistrate can also under the said provision monitor the investigation to ensure a proper investigation.

6. It has been observed in Sakiri Vasu vs. State of Uttar Pradesh and others, [2008] 2 SCC 409, that the Magistrate had very wide powers under Section 156 [3] 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]. It has been observed that the High Court should discourage the practice of filing a writ petition under Article 226 of the Constitution or a petition under Section 482, CrPC simply because a person had a grievance that his/her FIR had not been registered by the Police, or after being registered, proper investigation had not been done by the police. For this kind of grievance, the remedy lied under Sections 36, CrPC and Section 154[3], CrPC before the Police Officers concerned at first, and if that was 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. It has been observed that an alternative remedy would not be an absolute bar to prefer the writ petition but it is equally well settled that if there is an alternative remedy, the High Court should not ordinarily interfere.

7. It has been observed as settled by the Hon'ble Supreme Court of India in Sakiri Vasu [supra] that 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.

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8. Section 156, CrPC reads as under :-

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

[1] Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognnizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

[2] No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

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

9. It is also apt to refer to the following observations of the Hon'ble Supreme Court of India in Sudhir Bhaskarrao vs. Hemant Yashwant Dhage, reported in [2016] 6 SCC 277, :-

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 Page No.# 6/12

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.

10. Sub-section [1] of Section 173, BNSS has provided for giving information orally or by electronic communication relating to commission of a cognizable offence to the Officer In- Charge of Police Station and entering the substance thereof in the prescribed book by the Officer In-Charge. 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] of Section 173, 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.

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

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

[1] Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIV:

Provided that considering the nature and gravity of the offence, the Superintendent of Police may require the Deputy Superintendent of Police to investigate the case. [2] No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

[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] Any Magistrate empowered under section 210, may, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, order investigation, subject to-

[a] receiving a report containing facts and circumstances of the incident from the officer superior to him; and [b] after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.

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 is of the considered view that the power used to be exercised by the Magistrate earlier under Section 156[3], CrPC is also exercisable under Section 175[3], BNSS. This Court is also of the Page No.# 8/12

considered view that if the petitioner has any grievance as regards the manner in which the investigation is being carried out he can approach the jurisdictional Magistrate concerned under Section 175[3], BNSS and if he does so, the Magistrate can ensure, if prima facie satisfied, a proper investigation in the matter and he can also monitor the investigation.

13. The Hon'ble Supreme Court in Om Prakash Ambadkar vs. The State of Maharastra and others, [2025] INSC 139, after analyzing the earlier decisions on Section 156 [3], CrPC, has observed as follows :-

24. Thus, there are prerequisites to be followed by the complainant before approaching the Magistrate under Section 156[3] of the CrPC which is a discretionary remedy as the provision proceeds with the word 'may'. The Magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizable offences and also about the necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. It is, thus, not necessary that in every case where a complaint has been filed under Section 200 of the CrPC the Magistrate should direct the Police to investigate the crime merely because an application has also been filed under Section 156[3] of the CrPC even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, with the assistance of the court or otherwise. The issue of jurisdiction also becomes important at that stage and cannot be ignored.

25. In fact, the Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police.The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is Page No.# 9/12

expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156[3] of the CrPC Of course, if the allegations made in the complaint require complex and complicated investigation which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police authorities.The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police.

14. After making a comparative analysis of the provisions contained in Section 156, CrPC and Section 175, BNSS, the Hon'ble Supreme Court in Om Prakash Ambadkar [supra] has proceeded to observe as under :-

29. Section 175 of the BNSS corresponds to Section 156 of the CrPC. Sub-section [1] of Section 175 of the BNSS is in pari materia with sub-section 156[1] of the CrPC except for the proviso which empowers the Superintendent of Police to direct the Deputy Superintendent of Police to investigate a case if the nature or gravity of the case so requires. Sub-section [2] of Section 175 the BNSS is identical to Section 156[2] of the CrPC Section 175[3] of the BNSS empowers any Magistrate who is empowered to take cognizance under Section 210 to order investigation in accordance with Section 175[1] and to this extent is in pari materia with Section 156[3] of CrPC However, unlike Section 156[3] of the CrPC, any Magistrate, before ordering investigation under Section 175[3] of the BNSS, is required to:

a. Consider the application, supported by an affidavit, made by the complainant to the Superintendent of Police under Section 173(4) of the BNSS; b. Conduct such inquiry as he thinks necessary; and c. Consider the submissions made by the police officer.

30. Sub-section [4] of Section 175 of the BNSS is a new addition to the scheme of investigation of cognizable cases when compared with the scheme previously existing Page No.# 10/12

in Section 156 of the CrPC. It provides an additional safeguard to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of his official duty is made. The provision stipulates that any Magistrate who is empowered to take cognizance under Section 210 of the BNSS may order investigation against a public servant upon receiving a complaint arising in course of the discharge of his official duty, only after complying with the following procedure:

a. Receiving a report containing facts and circumstances of the incident from the officer superior to the accused public servant; and, b. Considering the assertions made by the accused public servant as regards the situation that led to the occurrence of the alleged incident.

31. A comparison of Section 175[3] of the BNSS with Section 156[3] of the CrPC indicates three prominent changes that have been introduced by the enactment of BNSS as follows :

a. First, the requirement of making an application to the Superintendent of Police upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application under Section 175[3] is required to furnish a copy of the application made to the Superintendent of Police under Section 173[4], supported by an affidavit, while making the application to the Magistrate under Section 175[3].

b. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR. c. Thirdly, the Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions under Section 175[3].

32. The introduction of these changes by the legislature can be attributed to the judicial evolution of Section 156 of the CrPC undertaken by a number of decisions of this Page No.# 11/12

Court. In the case of Priyanka Srivastava v. State of U.P., reported in [2015] 6 SCC 287, this Court held that prior to making an application to the Magistrate under Section 156[3] of the CrPC, the applicant must necessarily make applications under Sections 154[1] and 154[3]. It was further observed by the Court that applications made under Section 156[3] of the CrPC must necessarily be supported by an affidavit sworn by the applicant. The reason given by the Court for introducing such a requirement was that applications under Section 156[3] of the CrPC were being made in a routine manner and in a number of cases only with a view to cause harassment to the accused by registration of FIR. It was further observed that the requirement of supporting the complaint with an affidavit would ensure that the person making the application is conscious and also to see that no false affidavit is made. Once an affidavit is found to be false, the applicant would be liable for prosecution in accordance with law. This would deter him from casually invoking the authority of the Magistrate under Section 156[3].

15. The same position is also reiterated in a subsequent decision in Criminal Appeal no. 4313 of 2024 [Ranjit Singh Bath and another vs. Union Territory Chandigarh and another], decided on 06.03.2025, by observing the sub-sections [1] and [3] of Section 154 of the CrPC are the two remedies available for setting the criminal law in motion. It has been observed that before a complainant chooses to adopt a remedy under Section 156 [3], CrPC, he must exhaust his remedies under sub-sections [1] and [3] of Section 154, CrPC and he must make those averments in the complaint and produce the documents in support. The same position holds good under Section 173 and Section 175 of the BNSS.

16. The petitioner herein has not averred that before approaching this Court by the instant writ petitioner seeking to invoke the discretionary and extraordinary jurisdiction under Article 226 of the Constitution, the petitioner has exhausted the other remedies under the CrPC and/or the BNSS.

17. In view of such settled position of law and the fact situation obtaining in the case, this Court is not entertaining the writ petition. While not entertaining the present writ petition, it Page No.# 12/12

is observed that the petitioner has the liberty to avail those two remedies under the CrPC/BNSS by approaching the Superintendent of Police first and then, the jurisdictional Magistrate by following the procedure laid down in those provisions.

JUDGE

Comparing Assistant