Priyankaben @ Priyaben ... vs State Of Gujarat
2021 Latest Caselaw 5123 Guj

        R/SCR.A/3515/2020                                     ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
        R/SPECIAL CRIMINAL APPLICATION NO. 3515 of 2020
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        PRIYANKABEN @ PRIYABEN KAMSHIBHAI BHARVAD
                            Versus
                      STATE OF GUJARAT
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Appearance:
. for the Applicant(s) No. 1
MR SAMIR B GOHIL(5718) for the Applicant(s) No. 1
MR MANAN MEHTA, APP (2) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3,4
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 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                            Date : 09/04/2021
                             ORAL ORDER

1. By way of present application, the applicant has prayed to grant following reliefs in paragraph-10:

"(A) Your Lordships may be pleased to allow this petition. (B) Your Lordships may be pleased to pass appropriate writ, order or direction directing the respondent no.4 Narol Police Station, Ahmedabad to register an offence against the accused persons in the aforesaid peculiar facts and circumstances of the case.

(C) Your Lordships may be pleased to pass appropriate writ, order or direction directing to proper investigate the case by the crime branch or the Special Investigation Team (SIT) in the interest of justice."

2. Heard Mr.Samir B. Gohil, learned advocate for the applicant.

3. It is submitted by the learned advocate for the applicant that the elder sister of the applicant was married to the accused no.1 Kiranbhai Bharatbhai Bharvad before six years, and out of the marriage, two children were born and they are aged about four years and two and half years. It is further submitted that the elder sister of the applicant was frequently visiting her paternal home due to mental and physical torture

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given by her husband and other family members. That, the deceased sister was making complaints to her family members in respect of continuous torture, since last one year, and about her husband having illegal affair with a lady. That, the husband of the elder sister of the applicant had started to live with other lady, and therefore, disputes started between them. That, the elder sister of the applicant expired on 30.06.2020 between 5.30 to 6.00 p.m. and about which, a third person informed the applicant on 01.07.2020 in the morning that her elder sister, namely, Mayaben had expired. However, even after such a serious incident having taken place, no accused person informed about the incident to the applicant. That, the applicant and her family members immediately went to her elder sister-in-law and at that time, all the accused persons and their relatives have already done funeral ceremony. That, objection was raised by the applicant and her mother demanding postmortem of her deceased sister-Mayaben, but no one heard the voice of the applicant and her mother. That, no one informed the applicant, or any family member of the applicant about the sudden death of elder sister Mayaben and funeral ceremony was also performed. That, immediately, a complaint was made by the applicant on 20.07.2020 in the form of an FIR against the accused persons and investigation was made by the Crime Branch. That, no action was taken by the police officer to whom the complaint was given by the applicant and therefore, it was requested by learned advocate for the applicant to direct the respondent no.4 to register an offence against the accused persons and proper investigation be made by the Crime Branch or Special Investigation Team (SIT) in the interest of justice. In support of his arguments, learned advocate for the applicant relied upon a decision

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rendered by the Hon'ble Apex Court in the case of Lalitakumari v/s. Government of U.P. And Others reported in (2014) 2 SCC 1.

4. While opposing the arguments advanced by learned APP, it is submitted that on receiving a representation made by the applicant dated 17.07.2020, preliminary inquiry was made under Section 174 of the Criminal Procedure Code, 1973 and report is also submitted before the Court. It was submitted that it was an accidental death and no crime was committed by the accused persons. Learned APP has referred to the statement of Rekhaben Manubhai Bharvad dated 11.08.2020 who is residing adjacent to the house of the deceased; statement of Mafabhai dated 16.08.2020 and that of others. Learned APP has further submitted that funeral and final rites of the deceased were performed in presence of family members of the applicant and in-laws. That, on account of COVID-19 situation, family members of the applicant were not happy to make postmortem of the dead body of the deceased and therefore, decided to perform funeral of the deceased. That, even they were not happy to lodge a complaint in presence of elders of the society. That, no case is made out by the applicant to register a complaint as desired by her. That, as per the decision of Hon'ble Apex Court in case of M. Subramaniam vs. S. Janki reported in (2020) 6 SCALE 204, if a person has a grievance in connection with registration of FIR under Section 154 of the Criminal Procedure Code, 1973, or no proper investigation is made, it is open for the petitioner/aggrieved person to file an application under Section 156(3) of the Criminal Procedure Code, 1973 before the learned Judicial Magistrate First Class. That, the present application is not maintainable, in view of the judgment of the

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Hon'ble Apex Court and thereafter, same view is taken by this Court in Special Criminal Application No.6712 of 2020. Learned APP has further submitted that the prayer made by the applicant in paragraph-10(C) is premature and as FIR itself is not registered and therefore also, question of directing proper investigation to the Crime Branch or Special Investigation Team (SIT) would not arise, at this juncture. Ultimately, it was requested by learned APP for the respondent to dismiss the application.

5. Having gone through the contents of the application, arguments advanced by learned advocate for the applicant as well as learned APP, it appears that the alleged incident had taken place on 30.06.2020 and the applicant approached the police authority i.e. Police Inspector, Narol Police Station by her representation on 17.07.2020. It is stated in the alleged representation that the elder sister of the applicant was married before six years with accused no.1, as per customs and two children were born. Since last one year, the elder sister, namely, Mayaben was visiting her parental home and informing all of giving physical and mental torture to her. Thereafter, she was living at her matrimonial home. It was informed by elder sister of the applicant that her husband has some illicit relation with another lady and he wanted to live with her. On 01.07.2020, remotely elder father informed by telephone that Mayaben had expired. No family members/in- laws informed the applicant about her death. Thereafter, immediately, applicant visited the place where funeral of the deceased was performed, where she came to know that her sister was expired on 30.06.2020. A request was made by the applicant to the accused persons to perform the postmortem and inform the police station, but her request was not taken

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into consideration and funeral was completed hurriedly. Therefore, as her elder sister was no more, the applicant was mentally broken and unable to decide what to do. Thereafter, a complaint was made by her on 17.07.2020. It appears that on receiving the complaint, an inquiry was made by police officer and statement of neighbours and other persons were recorded. As per the statement made by learned APP, on 06.04.2021, as per the instructions received from concerned police station as well as police report, it was ordered to place the said report on record. Accordingly, police report has been placed on record. It appears that the statement of present applicant was twice recorded on 09.08.2020 in connection with the application given by the applicant. It was stated that she wanted certain facts to make any further statement in connection with her complaint. Ms. Rekhaben Manubhai Bharvad appears to be neighbour of the deceased and as per her statement, she was present when the alleged incident took place. As per her statement, deceased accidentally had fallen down, while she was washing clothes in her house, she received head injuries and suddenly succumbed to death and she shouted and the family members of the deceased and her in-laws were informed. A statement of mother-in-law was recorded on 11.08.2020 and she also supported the statement of Rekhaben Manubhai Bharvad. From the statement of Mafatbhai Khodaji Thakor recorded on 16.08.2020, it appears that there were no reasons; except accidental death of the deceased, as she had received head injuries on account of her falling down in lobby, while she was washing clothes in her house. It was also inquired to take the dead body of the deceased for performing postmortem, but on account of COVID-19 situation, family members of either side refused to

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get performed postmortem of the deceased. In presence of elders of the society/community of either side so decided to perform funeral ceremony of the deceased. Thereafter, post death rituals were performed in presence of family members of the applicant, her parents and others. The police officer has also opined in his report that the death was an accidental death and there were no other reasons for causing the death.

6. Here, apt would be to reproduce relevant and pertinent observations of Hon'ble Apex Court in case of Lalitakumari (supra) in paragraph-110, which reads, thus:

"110. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR."

Relying upon the judgment of the Hon'ble Apex Court in case of M. Subramaniam (supra), the observations made in paragaph-5, 11, 12, 13, 14, 15, 16, 17 and 18 are reproduced

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herein:

"5. While it is not possible to accept the contention of the appellants on the question of locus standi, we are inclined to accept the contention that the High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the judgment of this Court in Sakiri Vasu v. State Of Uttar Pradesh And Others 1 in which it has been inter alia held as under:

"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 1 (2008) 2 SCC 409 Criminal Appeal No. 102 of 2011 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.

12. Thus in Mohd. Yousuf v. Afaq Jahan this Court observed: (SCC p. 631, para 11) "11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."

13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT 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

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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(s) 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 of 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 v. J.A.C. Saldanha (SCC : 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.

18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing such acts or employ such means as are essentially necessary for its execution."

This Court in Special Criminal Application No.6712 of 2020 vide order dated 15.12.2020 held that, "various

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applications seeking registration of FIR are being filed before this Court without approaching the concerned Magistrate under Section 156(3) of the Code. It is further observed that "such applications which are directly filed are in direct conflict with the observations of the Hon'ble Apex Court as regards to filing of such applications of the applicants since filing of such applications are an unnecessary burden," and therefore, the petition was rejected.

7. Here also, applicant has requested in paragraph-10(B) to direct respondent no.4 Narol Police Station to register an offence against accused persons. That, the applicant has not approached learned Judicial Magistrate First Class under Section 156(3) of the Criminal Procedure Code, 1973 for the same prayer. Directing proper investigation by the Crime Branch or by Special Investigation Team (SIT) would not arise at this juncture, as the FIR itself is not registered by the police authorities and as per the report of Narol Police Station placed on the record dated 20.10.2020, no offence is committed.

8. Considering the observations of the Apex Court in case of M. Subramaniam vs. S. Janki (supra) and the view taken by this Court in Special Criminal Application No.6712 of 2020, the application is required to be dismissed, and accordingly, it is dismissed. Rule is discharged. However, it would be open for the applicant to avail the legal remedy permissible by law.

(B.N. KARIA, J) TAUSIF SAIYED