Mahesh Kushwah vs State Of Mp
2021 Latest Caselaw 560 MP

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            THE HIGH COURT OF MADHYA PRADESH
                      MCRC No.43276/2020
           (MAHESH KUSHWAH VS. STATE OF M.P. & ORS.)

Gwalior dtd. 09/03/2021
      Shri Suraj Kushwah, learned counsel for the petitioner.

      Shri Nitin Goyal, learned Panel Lawyer for the State.

      This petition under Section 482 of Cr.P.C. has been filed

seeking the following relief:-

             "It is, therefore, prayed this Hon'ble Court may
      kindly be pleased to allow this application of the
      applicant and respondent No.3 may kindly be directed

to preserve the call details of deceased mobile no. 7748019807 company of SIM- Jio and another mobile number 7225034847 company Airtel, since last six months from the incident day, and may directed to the respondent no.3 to preserve the Photos of deceased along with Jyoti from mobile gallery of the deceased and both details sms. and such photos may kindly be consider in investigation, due to having to the most relevancy in crime."

The Supreme Court in the case of Sakiri Vasu vs. State of

U.P., reported in (2008) 2 SCC 409 has held as under:-

"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 all such acts or employ such means as are essentially necessary for its execution.

19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd Edn., p.

267):

"... If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission."

20. In ascertaining a necessary implication, the court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein.

21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO v.M.K. Mohammad Kunhi [AIR 1969 SC 430] this Court held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.

22. Similar examples where this Court has affirmed the doctrine of implied powers are Union of India v. Paras Laminates (P) Ltd. [(1990) 4 SCC 453 : 1991 SCC (L&S) 208 : (1990) 14 ATC 798 : AIR 1991 SC 696], RBI v. Peerless General Finance and Investment Co. Ltd. [(1996) 1 SCC 642 : AIR 1996 SC 646] (AIR at p. 656), CEO & Vice-Chairman, Gujarat Maritime Board v. Haji Daud Haji Harun Abu [(1996) 11 SCC 23], J.K. Synthetics Ltd. v. CCE [(1996) 6 SCC 92 : AIR 1996 SC 3527], State of Karnataka v. Vishwabharathi House Building Coop. Society [(2003) 2 SCC 412] (SCC at p. 432), etc.

23. In Savitri v. Govind Singh Rawat [(1985) 4 SCC 337 : 1985 SCC (Cri) 556 : AIR 1986 SC 984]

this Court held that the power conferred on the Magistrate under Section 125 CrPC to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period."

Recently, the Supreme Court in the case of M.Subramaniam

and anr. vs. S.Janaki and anr. passed on 20/03/2020 in CRA

No.102/2011 held as under:-

6. 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 U.P. [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] in which it has been inter alia held as under: (SCC pp. 412-14, paras 11-18) "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 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 [Mohd.

Yousuf v. Afaq Jahan, (2006) 1 SCC 627 : (2006) 1 SCC (Cri) 460] 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 Sing v. State (NCT of Delhi) [Dilawar Singh v. State (NCT of Delhi), (2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330] , SCC para 18. 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(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 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 v. J.A.C. Saldanha [State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC para 19: 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 all such acts or employ such means as are essentially necessary for its execution."

Accordingly, the counsel for the petitioner seeks permission

of this Court to withdraw this petition with liberty to approach the

concerning Magistrate under Section 156(3) of Cr.P.C.

With the aforesaid liberty, the petition is dismissed as

withdrawn.

In case, if the application is filed, then this direction should

not be construed as a direction to allow the application and

concerning Magistrate shall consider the application strictly in

accordance with law.

                                                           (G.S.Ahluwalia)
Pj'S/-                                                         Judge

     PRINCEE BARAIYA
     2021.03.10
     16:46:58 -08'00'