Punjab-Haryana High Court
Sanjay Gambhir vs State Of Punjab And Others on 19 October, 2023
Neutral Citation No:=2023:PHHC:137766
2023:PHHC:137766
CRM-M-53407-2023 -1-
123
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-53407-2023
Date of decision :19.10.2023
SANJAY GAMBIR
... petitioner(s)
Versus
STATE OF PUNJAB & OTHERS
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Anter Singh Brar, Advocate
for the petitioner.
Mr. Kirat Singh Sidhu, DAG, Punjab.
****
JASJIT SINGH BEDI, J.
The prayer in the present petition under Section 482 Cr.P.C.
is for the issuance of necessary directions to the official respondents to
take legal action on applications dated 04.09.2023 (Annexure P-4),
06.09.2023 (Annexure P-5) and 21.09.2023 (Annexures P-6 & P-7)
which had been moved against the private respondents seeking
registration of an FIR and for grant of protection.
2. The learned counsel for the petitioner states that all the
private respondents had committed a fraud upon the petitioner. The
petitioner had raised construction for the respondents but the
respondents had not paid a sum of Rs.1.4 crores to him and had forcibly
retained his entire machinery and shuttering articles which were required
to be recovered and his payment of Rs.1.4 crores was also to be
recovered. Therefore, the offence was made out for which an FIR ought
to have been registered on the basis of the representations moved by the
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petitioner. Reliance is placed on the judgment in the case of Lalita
Kumari Vs. State of UP and others, (SC) 2014(1) SCC (Crl.) 524.
3. I have heard the counsel for the petitioner.
4. The Hon'ble Supreme Court has dealt with the issues of the
power to order the registration of an FIR, transfer investigations, to
supervise the same and other allied issues in a number of judgments.
Some of them are enumerated hereinbelow:-
In "Sakiri Vasu versus State of U.P. and others, 2008 (1)
RCR (Criminal) 392", the Hon'ble Supreme Court has held as under:-
"10. It has been held by this Court in CBI & another vs.
Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8)
that no one can insist that an offence be investigated by a
particular agency. We fully agree with the view in the
aforesaid decision. An aggrieved person can only claim
that the offence he alleges be investigated properly, but he
has no right to claim that it be investigated by any
particular agency of his choice.
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
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was made. The Magistrate can also under the same
provision monitor the investigation to ensure a proper
investigation.
12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT
2006(1) SC 10, this Court observed:
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 investigating 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
complaint 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 vs. State of Delhi 2007(4) RCR (Criminal) 115 (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)
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Cr.P.C., and if the Magistrate is satisfied he can order a
proper investigation and take other suitable steps and pass
such order orders as he thinks necessary for ensuring a
proper investigation. All these powers a Magistrate enjoys
under Section 156(3) Cr.P.C.
14. Section 156 (3) states:
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
Cr.P.C. 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. A.C.
Saldanna AIR 1980 SC 326 (para 19).
17. In our opinion Section 156(3) Cr.P.C. 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 F.I.R. 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) Cr.P.C.,
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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 to 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. Page 267):-
If these details could not be inserted by implication, the
drafting of legislation would be an indeterminable
process and the legislative intent would likely be
defeated by a most insignificant omission.
XXXX XXXX XXXX
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) Cr.P.C. 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) Cr.P.C., we are of the opinion
that they are implied in the above provision.
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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 Cr.P.C. 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 Cr.P.C. 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) Cr.P.C. or other police officer referred to in Section
36 Cr.P.C. 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) Cr.P.C. instead of rushing to the High
Court by way of a writ petition or a petition under Section
482 Cr.P.C. Moreover he has a further remedy of filing a
criminal complaint under Section 200 Cr.P.C. 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 Cr.P.C. simply because a person has a
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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) Cr.P.C. before the Magistrate or by filing a
criminal complaint under Section 200 Cr.P.C. and not by
filing a writ petition or a petition under Section 482
Cr.P.C.
28. It is true that alternative remedy is not an absolute bar
to a writ petition, but it is equally well settled that if there
is an alternative remedy the High Court should not
ordinarily interfere.
XXXX XXXX XXXX
31. No doubt the Magistrate cannot order investigation by
the CBI vide CBI vs. State of Rajasthan and another
(Supra), but this Court or the High Court has power under
Article 136 or Article 226 to order investigation by the
CBI. That, however should be done only in some rare and
exceptional case, otherwise, the CBI would be flooded
with a large number of cases and would find it impossible
to properly investigate all of them.
XXXX XXXX XXXX
33. In Secretary, Minor Irrigation & Rural Engineering
Services U.P. and others vs. Sahngoo Ram Arya and
another 2002 (5) SCC 521 (vide para 6) , this Court
observed that although the High Court has power to order
a CBI inquiry, that power should only be exercised if the
High Court after considering the material on record
comes to a conclusion that such material discloses prima
facie a case calling for investigation by the CBI or by any
other similar agency. A CBI inquiry cannot be ordered as
a matter of routine or merely because the party makes
some allegation".
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In the judgment of "D. Venkatasubramaniam and others
versus M.K. Mohan Krishnamachari and another 2009(4) RCR
(Criminal) 318, the Hon'ble Supreme Court held as under:-
"1. A short question that arises for our consideration in
these appeals is whether it is open to the High Court in
exercise of its jurisdiction under Section 482 of the Code
of Criminal Procedure to interfere with the statutory
power of investigation by police into a cognizable
offence? If such a power is available with the Court,
what are the parameters for its interference?
2. It is well settled and this Court time and again,
reiterated that the police authorities have the statutory
right and duty to investigate into a cognizable offence
under the scheme of Code of Criminal Procedure (for
short `the Code'). This Court, on more than one
occasion, decried uncalled for interference by the Courts
into domain of investigation of crimes by police in
discharge of their statutory functions. The principle has
been succinctly stated way back in Emperor V. Khwaja
Nazir Ahmad, Air 1945 Privy Council 18, and the same
has been repeatedly quoted with respect and approval.
The Privy Council observed that "just as it is essential
that every one accused of a crime should have free
access to a Court of justice so that he may be duly,
acquitted if found not guilty of the offence with which he
is charged, so it is of the utmost importance that the AIR
1945 PC 18 judiciary should not interfere with the police
in matters which are within their province and into
which the law imposes upon them the duty of enquiry"
3. The Privy Council further observed:
"In India as has been shown there is a statutory right
on the part of the police to investigate the
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circumstances of an alleged cognizable crime without
requiring any authority from the judicial authorities,
and it would, as their Lordships think, be an
unfortunate result if it should be held possible to
interfere with those statutory rights by an exercise of
the inherent jurisdiction of the Court. The functions of
the judiciary and the police are complementary not
overlapping and the combination of individual liberty
with a due observance of law and order is only to be
obtained by leaving each to exercise its own function,
always, of course, subject to the right of the Court to
intervene in an appropriate case when moved under
Section 491, Criminal P.C. to give directions in the
nature of habeas corpus. In such a case as the present,
however, the Court's functions begin when a charge is
preferred before it and not until then. It has sometimes
been thought that Section 561A has given increased
powers to the Court which it did not possess before
that section was enacted. But this is not so. The
section gives no new powers, it only provides that
those which the Court already inherently possess shall
be preserved and is inserted, as their Lordships think,
lest it should be considered that the only powers
possessed by the Court are those expressly conferred
by the Criminal Procedure Code, and that no inherent
power had survived the passing of that Act."
(emphasis supplied)
4. In State of West Bengal V. S. N. Basak, (1963) 2
SCR 52, a Division Bench of three Judges of this
Court, while referring to the observations of the Privy
Council referred to hereinabove, observed:
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"With this interpretation, which has been put on the
statutory duties and powers of the police and of the
powers of the Court, we are in accord."
and it was further held:
"The powers of investigation into cognizable
offences are contained in Chapter XIV of the Code.
Section 154 which is in that Chapter deals with
information in cognizable offences and Section 156
with investigation into such offences and under
these sections the police has the statutory right to
investigate into the circumstances of any alleged
cognizable offence ...and this statutory power of
the police to investigate cannot be interfered with
by the exercise of power under Section 439 or
under the inherent power of the court under
Section 561A of Criminal Procedure Code"
This Court, having found that the High Court had
exceeded its jurisdiction in interfering with the
investigation, interfered with the orders of the High
Court by allowing the appeal preferred by the State.
5. In State of Bhihar & Anr. V. J.A.C. Saldanha &
Ors., (1980) 2 SCR 16, a three Judge Bench,
speaking through Desai, J., after referring the
precedents including Khwaza Nazir Ahmad, held:
"There is a clear cut and well demarcated sphere of
activity in the field of crime detection and crime
punishment. Investigation of an offence is the field
exclusively reserved for the executive through the
police department, the superintendence over which
vests in the State Government. The executive, which
is charged with a duty to keep vigilance over law
and order situation is obliged to prevent crime and
if an offence is alleged to have been committed it is
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its bounden duty to investigate into the offence and
bring the offender to book. Once it investigates and
finds an offence having been committed it is its duty
to collect evidence for the purpose of proving the
offence. Once that is completed and the
investigating officer submits report to the Court
requesting the Court to take cognizance of the
offence under Section 190 of the Code its duty
comes to an end. On a cognizance of the offence
being taken by the Court the police function of
investigation comes to an end subject to the
provision contained in Section 173(8), there
commences the adjudicatory function of the
judiciary to determine whether an offence has been
committed and if so, whether by the person or
persons charged with the crime by the police in its
report to the Court, and to award adequate
punishment according to law for the offence proved
to the satisfaction of the Court. There is thus a well
defined and well demarcated function in the field of
crime detection and its subsequent adjudication
between the police and the Magistrate. This has
been recognised way back in King Emperor v.
Khwaja Nazir Ahmad [1944] L.R. 71 IA 203.
... ... ... ... ...
This view of the Judicial Committee clearly
demarcates the functions of the executive and the
judiciary in the field of detection of crime and its
subsequent trial and it would appear that the power
of the police to investigate into a cognizable offence
is ordinarily not to be interfered with by the
judiciary."
6. M.C. Mehta (Taj Corridor Scam) v. Union of India
& Ors., 2007(1) RCR (Criminal) 266 : 2007(1) RAJ
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99 : (2007)1 SCC 110 was a public interest litigation
in which this Court, after noticing the precedents, held
that when a cognizable offence is reported to the
police, they may after investigation take action under
Section 169 or Section 170 of the Code. If the officer-
incharge of the police station forms an opinion that
there is no sufficient evidence against the accused, the
officer-in-charge may, under Section 169 of the Code,
release the accused from custody or, if the officer
forms an opinion that there is sufficient evidence, he
may, under Section 170 of the Code, forward the
accused to a competent Magistrate. After analyzing
the earlier judgments, this Court observed :
...that there is a clear-cut and well-demarcated
sphere of activities in the field of crime detection and
crime punishment. Investigation of an offence is the
field reserved for the executive through the police
department, the superintendence over which vests in
the State Government. The executive is charged with
a duty to keep vigilance over law and order
situation. It is obliged to prevent crime. If an offence
is committed allegedly, it is the State's duty to
investigate into the offence and bring the offender to
book. Once it investigates through the police
department and finds an offence having been
committed, it is its duty to collect evidence for the
purposes of proving the offence. Once that is
completed, the investigating officer submits report to
the court requesting the court to take cognizance of
the offence under Section 190 Criminal Procedure
Code and his duty comes to an end."
XXXX XXXX XXXX
11. Be it noted, that there is no allegation of dereliction
of any duty on the part of the investigating agency.
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There is also no allegation of any collusion and
deliberate delay on the part of the investigating agency
in the matter of investigation into the case that has
been promptly registered on the information lodged by
the respondent. The petition almost reads like a civil
suit for recovery of the money. As noted hereinabove,
the petition has been filed within one week of
registration of the crime by which time the police had
already started serious investigation as is evident from
the material available on record. It is also required to
notice that none of the appellants have been impleaded
as party respondents to the petition filed under section
482 of the Code. The State represented by its Sub
Inspector of Police, Central Crime Branch, Egmore,
Chennai alone was impleaded as the respondent. The
investigating agency in its counter filed in the High
Court stated that after obtaining necessary legal
opinion, a case was registered and 'commenced the
investigation'. It is also stated in categorical terms that
the police had "inquired all the connected witnesses,
recorded their statements and also collected the
material documents and confirmed commission of
cognizable offences by all the accused". The High
Court, within a period of one month from the date of
filing of the petition, finally disposed of the same
observing that "it is obligatory on the part of the
respondent police to conduct investigation in
accordance with law, including recording of statements
from witnesses, arrest, seizure of property, perusal of
various documents, filing of charge sheet. It is also
needless to state that if any account is available with
the accused persons, or any amount is in their
possession and any account is maintained in
Natinoalised Bank, it is obligatory on the part of the
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respondent police to take all necessary steps to
safeguard the interest of the aggrieved persons in this
case." The Court accordingly directed the police to
expedite and complete the investigation within six
months from the date of receipt of a copy of the order.
The said order of the High Court is impugned in these
appeals.
XXXX XXXX XXXX
14. The question that arises for our consideration is
whether the contents of the petition submitted by the
respondent reveal any cause for issuing directions
guiding the Investigating Officer in the matter of
exercise of statutory power and duty to investigate into
crime that had already been registered and
investigation was actually in progress? Whether such a
direction could have been issued by the High Court in
exercise of its jurisdiction under section 482 of the
Code ?
15. It is too fairly well settled and needs no restatement
at our hands that the saving of the High Court's
inherent power is designed to achieve a salutary public
purpose which is that a Court proceeding ought not to
be permitted to degenerate into a weapon of
harassment or persecution. It is unfortunate that it is
the exercise of the inherent power by the High Court in
this case that had ultimately resulted in harassment of
the appellants as is evident from the subsequent events.
Pursuant to the impugned order, the investigating
authorities have approached the appellant No. 1 (in
S.L.P (Crl) No. 3269 of 2007), took him into custody
and exhibited him on television channel. The police
have demanded to pay an amount of Rs. 2,28,00,000/-
and threatened that he would be arrested if he fails to
comply with their demand. Accordingly, the appellants
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have paid Rs. 10 lakhs in cash in the police station
itself and issued a cheque for an amount of Rs. 2.18
cores drawn on Tamil Nadu Mercantile Bank. However,
the cheque was not encashed on account of the
instructions to the bank to stop the payment in view of
the interim order dated 4th May, 2007 of this Court.
The police offered explanation stating that the matter
was settled voluntarily between the parties and
therefore, the accused were not arrested and remanded
to custody. It is difficult to buy this idea that there was
a settlement between the parties in the police station. It
is not difficult to discern as to how and under what
circumstances the appellants may have agreed to pay
the amounts and also issued a cheque. It is not known
as to how and under what authority the police could
intervene and settle any disputes between the parties. It
is needless to observe that the police have no such
authority or duty of settling disputes.
16. It is the statutory obligation and duty of the police
to investigate into the crime and the Courts normally
ought not to interfere and guide the investigating
agency as to in what manner the investigation has to
proceed. In M.C. Abraham & Anr. V. State of
Maharashtra & Ors. 2003(1) Rcr (Criminal) 452 :
(2003) 2 SCC 649, this Court observed:
"Section 41 of the Code of Criminal Procedure
provides for arrest by a police officer without an
order from a Magistrate and without a warrant. The
section gives discretion to the police officer who
may, without an order from a Magistrate and even
without a warrant, arrest any person in the
situations enumerated in that section. It is open to
him, in the course of investigation, to arrest any
person who has been concerned with any cognizable
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offence or against whom reasonable complaint has
been made or credible information has been
received, or a reasonable suspicion exists of his
having been so concerned. Obviously, he is not
expected to act in a mechanical manner and in all
cases to arrest the accused as soon as the report is
lodged. In appropriate cases, after some
investigation, the investigating officer may make up
his mind as to whether it is necessary to arrest the
accused person. At that stage the court has no role to
play. Since the power is discretionary, a police
officer is not always bound to arrest an accused even
if the allegation against him is of having committed
a cognizable offence. Since an arrest is in the nature
of an encroachment on the liberty of the subject and
does affect the reputation and status of the citizen,
the power has to be cautiously exercised. It depends
inter alia upon the nature of the offence alleged and
the type of persons who are accused of having
committed the cognizable offence. Obviously, the
power has to be exercised with caution and
circumspection."
17. It is further observed:
"The principle, therefore, is well settled that it is for
the investigating agency to submit a report to the
Magistrate after full and complete investigation. The
investigating agency may submit a report finding the
allegations substantiated. It is also open to the
investigating agency to submit a report finding no
material to support the allegations made in the first
information report. It is open to the Magistrate
concerned to accept the report or to order further
enquiry. But what is clear is that the Magistrate
cannot direct the investigating agency to submit a
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report that is in accord with his views. Even in a
case where a report is submitted by the investigating
agency finding that no case is made out for
prosecution, it is open to the Magistrate to disagree
with the report and to take cognizance, but what he
cannot do is to direct the investigating agency to
submit a report to the effect that the allegations have
been supported by the material collected during the
course of investigation."
18. This Court while observing that it was not
appropriate for the High Court to issue a direction that
the case should not only be investigated but a charge
sheet must be submitted, held:
"In our view the High Court exceeded its jurisdiction
in making this direction which deserves to be set
aside. While it is open to the High Court, in
appropriate cases, to give directions for prompt
investigation etc. the High Court cannot direct the
investigating agency to submit a report that is in
accord with its views as that would amount to
unwarranted interference with the investigation of
the case by inhibiting the exercise of statutory power
by the investigating agency."
(emphasis is of ours)
19. It is worthwhile to notice that the directions in
the said case were issued by the High Court of
Bombay in writ petition filed in public interest in
which a grievance has been made that though the
Provident Fund Commissioner has lodged a
complaint against several Directors, the
investigation has made no progress on account of
the fact that the Directors were Government servants
and enjoying considerable influence. The High
Court issued series of directions which were
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challenged in this Court contending that the High
Court was in error in exercising jurisdiction under
Article 226 of the Constitution resulting in
unjustified interference of the investigation of the
case. It is, therefore, clear that if the High Court, in
exercise of its power under Article 226 of the
Constitution of India, cannot direct the investigating
agency to investigate the case in accord with its
views as that would amount to unwarranted
interference, equally no such directions could be
issued in exercise of inherent jurisdiction under
Section 482 of the Code.
20. Tested in the light of the principles aforesaid, the
impugned order, in our considered opinion, must be held to
be an order passed overstepping the limits of judicial
interference. It was observed by this Court on more than
one occasion, that even in Public Interest Litigation
proceedings, appropriate directions may be issued and the
purpose in issuing such directions is essentially to ensure
performance of statutory duty by the investigating agency.
The duty of the Court in such proceedings is to ensure that
the agencies do their duties in compliance with law. The
inherent power of the High Court is saved to interfere with
the proceedings pending before a Criminal Court if such
interference is required to secure the ends of justice or
where the continuance of the proceedings before a Court
amounts to abuse of the process of Court. Such a power
under Section 482 of the Code is always available to the
High Court in relation to a matter pending before a
criminal Court.
21. The High Court, in the instant case, did not even advert
to the relevant facts. As stated in the order itself, it was
more guided by the arguments made across the Bar that the
police has not taken any steps to arrest the persons and
seize the amounts involved in this case from the appellants
though there is no such factual foundation as such laid in
the petition. It has altogether ignored the counter filed by
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the police that the police had already examined ten
witnesses within a short span of time after the registration
of crime and recorded their statements. The High Court,
without recording any reason whatsoever, directed the
police that it is obligatory on their part to record statements
from witnesses, arrest, seizure of property and filing of
charge sheet. It is difficult to discern as to how such
directions resulting in far reaching consequences could
have been issued by the High Court in exercise of its
jurisdiction under Section 482 of the Code. The High Court
interfered with the investigation of crime which is within
the exclusive domain of the police by virtually directing the
police to investigate the case from a particular angle and
take certain steps which the police depending upon the
evidence collected and host of other circumstances may or
may not have attempted to take any such steps in its
discretion. It is not necessary that every investigation
should result in arrest, seizure of the property and
ultimately in filing of the charge sheet. The police, in
exercise of its statutory power coupled with duty, upon
investigation of a case, may find that a case is made out
requiring it to file charge sheet or may find that no case as
such is made out. It needs no reiteration that the
jurisdiction under Section 482 of the Code conferred on the
High Court has to be exercised sparingly, carefully and
with caution only where such exercise is justified by the test
laid down in the provision itself."
XXXX XXXX XXXX
23. The High Court in the present case, without
realising the consequences, issued directions in a
casual and mechanical manner without hearing the
appellants. The impugned order is a nullity and
liable to be set aside only on that score.
24. We are not impressed by the submission made by
the learned counsel for the respondent that the High
Court did not issue any directions but merely
disposed of the petition with the observations
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reminding the police of its duty. The question that
arises for consideration is whether there was any
occasion or necessity to make those "observations"
even if they are to be considered to be observations
and not any directions. It is not even remotely
suggested that there was any deliberate inaction or
failure in the matter of discharge of duties by the
police. There was no allegation of any subversion of
processes of law facilitating the accused to go scot-
free nor there is any finding as such recorded by the
High Court in its order. The power under Section
482 of the Code can be exercised by the High Court
either suo motu or on an application (i) to secure the
ends of justice; (ii) the High Court may make such
orders as may be necessary to give effect to any
order under the Code; (iii) to prevent abuse of the
process of any Court. There is no other ground on
which the High Court may exercise its inherent
power. In the present case, the High Court did not
record any reasons whatsoever why and for what
reasons, the matter required its interference. The
High Court is not expected to make any casual
observations without having any regard to the
possible consequences that may ensue from such
observations. Observations coming from the higher
Courts may have their own effect of influencing the
course of events and process of law. For that reason,
no uncalled for observations are to be made while
disposing of the matters and that too without hearing
the persons likely to be affected. The case on hand is
itself a classic illustration as to how such
observations could result in drastic and
consequences of far reaching in nature. We wish to
say no more.
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In "M. Subramaniam and another versus S. Janaki and
another, 2020(2) RCR (Criminal) 788", the Hon'ble Supreme Court
held as under:-
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 (2008) 2
SCC 409 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 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):
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"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 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.
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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
(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
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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."
6. The said ratio has been followed in Sudhir
Bhaskarrao Tambe v. Hemant Yashwant Dhage and
Othersm , in which it is observed.
"2. This Court has held in Sakiri Vasu v. 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 the 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
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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."
5. A perusal of the aforementioned judgments would clearly
establish that while it is open to the High Court in appropriate cases to
give directions for the registration of an FIR and for prompt and proper
investigation under Section 482 Cr.P.C., the Court should ordinarily not
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issue directions to the investigating agency to either register an FIR or
submit a final report within a particular time frame for which an
appropriate application under Section 156(3) Cr.P.C. can be filed before
the Magistrate. Further, the High Court cannot direct the investigating
agency to submit a report that is in accordance with its view as that
would amount to unwarranted interference with the investigation. The
contours of the investigation can also not be delineated by a Court and
no order for filing of a chargesheet or arrest of an accused can be issued.
Further, issuance of directions for an investigation to be conducted by
the CBI should be in rare and exceptional cases so as not to
unnecessarily burden the premier investigating agency with routine
matters unless there are grave allegations against senior officers of the
State administration or in cases having inter-state ramifications etc., of
course these situations being merely illustrative and not exhaustive.
6. So far the judgment of the Hon'ble Supreme Court in the
case of Lalita Kumari Vs. State of UP and others, (SC) 2014(1) SCC
(Crl.) 524 is concerned, the said judgment does not hold that the only
efficacious remedy available to the complainant in case the Investigating
Agency does not register an FIR is by way of an appropriate petition
under Section 482 Cr.P.C. Therefore, as has already been mentioned
hereinabove, in case the petitioner is aggrieved by the non-registration
of an FIR, he is at liberty to approach the Illaqa Magistrate of competent
jurisdiction seeking the registration of an FIR on the basis of the
allegations levelled in the applications (Annnexures P-4 to P-7).
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7. Therefore, I deem it appropriate to dispose of the present
petition with the liberty to the petitioner to avail his alternative remedies
in accordance with law including but not limited to the moving of an
application under Section 156(3) Cr.P.C. seeking registration of an FIR,
if so advised.
(JASJIT SINGH BEDI)
JUDGE
19.10.2023
JITESH
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
Neutral Citation No:=2023:PHHC:137766
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