AFR

(Judgment reserved on 12.01.2021)

(Judgment delivered on 27.01.2021)

Court No. - 48

1.Case :- CRIMINAL MISC. WRIT PETITION No. - 15692 of 2020

Petitioner :- Ajay Kumar Pandey

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Sachida Nand Tiwari

Counsel for Respondent :- G.A.

WITH

2.Case :- CRIMINAL MISC. WRIT PETITION No. - 15750 of 2020

Petitioner :- Shashi Gangwar

Respondent :- State Of U P And 5 Others

Counsel for Petitioner :- Varinder Singh

Counsel for Respondent :- G.A.

3.Case :- CRIMINAL MISC. WRIT PETITION No. - 15760 of 2020

Petitioner :- Smt. Deepu Devi

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Ajay Kumar Kashyap

Counsel for Respondent :- G.A.

4.Case :- CRIMINAL MISC. WRIT PETITION No. - 15766 of 2020

Petitioner :- Ganesh Bind And Another

Respondent :- State Of U P And 3 Others

Counsel for Petitioner :- Ulajhan Singh Bind

Counsel for Respondent :- G.A.

5.Case :- CRIMINAL MISC. WRIT PETITION No. - 15778 of 2020

Petitioner :- Ram Raksha

Respondent :- State Of U P And 2 Others

Counsel for Petitioner :- Sanjay Kumar Mishra

Counsel for Respondent :- G.A.

6.Case :- CRIMINAL MISC. WRIT PETITION No. - 15780 of 2020

Petitioner :- Khushnuma

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Firdos Ahmad

Counsel for Respondent :- G.A.

7.Case :- CRIMINAL MISC. WRIT PETITION No. - 15781 of 2020

Petitioner :- Smt. Shilpi Mitchell Innes

Respondent :- State Of U.P. And 11 Others

Counsel for Petitioner :- Shree Prakash Giri

Counsel for Respondent :- G.A.

8.Case :- CRIMINAL MISC. WRIT PETITION No. - 17059 of 2020

Petitioner :- Manju Devi

Respondent :- State Of U P And 14 Others

Neutral Citation No. - 2021:AHC:17411-DB

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Counsel for Petitioner :- Diwan Saifullah Khan,Abhishek Ankur Chaurasia

Counsel for Respondent :- G.A.

9.Case :- CRIMINAL MISC. WRIT PETITION No. - 16346 of 2020

Petitioner :- Mangari Devi

Respondent :- State Of U.P. And 6 Others

Counsel for Petitioner :- Ram Awtar

Counsel for Respondent :- G.A.

10.Case :- CRIMINAL MISC. WRIT PETITION No. - 15693 of 2020

Petitioner :- Rama Devi

Respondent :- State Of U.P. And 6 Others

Counsel for Petitioner :- Anil Kumar Tripathi

Counsel for Respondent :- G.A.

11.Case :- CRIMINAL MISC. WRIT PETITION No. - 15725 of 2020

Petitioner :- Lalit Kumar Tiwari

Respondent :- State Of U P And 2 Others

Counsel for Petitioner :- Arun Kumar Tiwari

Counsel for Respondent :- G.A.

12.Case :- CRIMINAL MISC. WRIT PETITION No. - 15732 of 2020

Petitioner :- Savita Devi

Respondent :- State Of U.P. And 12 Others

Counsel for Petitioner :- Arvind Prabodh Dubey,Ashok Kumar Giri

Counsel for Respondent :- G.A.

13.Case :- CRIMINAL MISC. WRIT PETITION No. - 15745 of 2020

Petitioner :- Anshu Kumar

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Anand Mohan Pandey,Om Prakash Katiyar

Counsel for Respondent :- G.A.

14.Case :- CRIMINAL MISC. WRIT PETITION No. - 16342 of 2020

Petitioner :- Satyanand Singh

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Mirza Ali Zulfaqar

Counsel for Respondent :- G.A.

15.Case :- CRIMINAL MISC. WRIT PETITION No. - 17010 of 2020

Petitioner :- Smt. Indrawati

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Janardan Yadav

Counsel for Respondent :- G.A.

16.Case :- CRIMINAL MISC. WRIT PETITION No. - 17035 of 2020

Petitioner :- Bharti

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Vikash Chandra Tiwari

Counsel for Respondent :- G.A.

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17.Case :- CRIMINAL MISC. WRIT PETITION No. - 17038 of 2020

Petitioner :- Smt. Devika Mahajan

Respondent :- State Of U.P. And 6 Others

Counsel for Petitioner :- Alok Kumar Srivastava

Counsel for Respondent :- G.A.

18.Case :- CRIMINAL MISC. WRIT PETITION No. - 17040 of 2020

Petitioner :- Rakesh Kumar Yadav

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Sandeep Kumar,Devendra Singh

Counsel for Respondent :- G.A.

19.Case :- CRIMINAL MISC. WRIT PETITION No. - 17046 of 2020

Petitioner :- Ram Dhani

Respondent :- State Of U P And 6 Others

Counsel for Petitioner :- Om Prakash Vishwakarma

Counsel for Respondent :- G.A.

20.Case :- CRIMINAL MISC. WRIT PETITION No. - 17054 of 2020

Petitioner :- Smt Suman Devi

Respondent :- State Of U P And 4 Others

Counsel for Petitioner :- Sadhana Singh,Archana Singh

Counsel for Respondent :- G.A.

21.Case :- CRIMINAL MISC. WRIT PETITION No. - 17114 of 2020

Petitioner :- Kiranpal Singh

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Jitendra Singh

Counsel for Respondent :- G.A.

22.Case :- CRIMINAL MISC. WRIT PETITION No. - 15792 of 2020

Petitioner :- Shamim

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Harish Chandra

Counsel for Respondent :- G.A.

23.Case :- CRIMINAL MISC. WRIT PETITION No. - 16390 of 2020

Petitioner :- Usha Devi

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Chandra Bhan Singh Chandel

Counsel for Respondent :- G.A.

24.Case :- CRIMINAL MISC. WRIT PETITION No. - 15801 of 2020

Petitioner :- Sujeet Verma

Respondent :- State Of U.P. And 6 Others

Counsel for Petitioner :- Anil Kumar Mishra

Counsel for Respondent :- G.A.

25.Case :- CRIMINAL MISC. WRIT PETITION No. - 17089 of 2020

Petitioner :- Emon Nir

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Mary Puncha (Sheeb Jose),Mohd. Kalim

Counsel for Respondent :- G.A.

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26.Case :- CRIMINAL MISC. WRIT PETITION No. - 17088 of 2020

Petitioner :- Asha Devi

Respondent :- State Of U.P. And 7 Others

Counsel for Petitioner :- Saurabh Kumar Tiwari,Kuldeep Kumar Gupta

Counsel for Respondent :- G.A.

27.Case :- CRIMINAL MISC. WRIT PETITION No. - 17116 of 2020

Petitioner :- Santram

Respondent :- State Of U.P. And 7 Others

Counsel for Petitioner :- Renu Devi Dohre

Counsel for Respondent :- G.A.

28.Case :- CRIMINAL MISC. WRIT PETITION No. - 17177 of 2020

Petitioner :- Chaturbhuj Lal Srivastava

Respondent :- State Of U.P. And 8 Others

Counsel for Petitioner :- Sanjay Kumar Srivastava

Counsel for Respondent :- G.A.

29.Case :- CRIMINAL MISC. WRIT PETITION No. - 17100 of 2020

Petitioner :- Rajkumar Yadav

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Surendra Singh

Counsel for Respondent :- G.A.

30.Case :- CRIMINAL MISC. WRIT PETITION No. - 16367 of 2020

Petitioner :- Sri Krishna Verma

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Pankaj Kumar Shukla

Counsel for Respondent :- G.A.

31.Case :- CRIMINAL MISC. WRIT PETITION No. - 16366 of 2020

Petitioner :- Sarita (Minor)

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Anil Kumar

Counsel for Respondent :- G.A.

32.Case :- CRIMINAL MISC. WRIT PETITION No. - 16421 of 2020

Petitioner :- Rahul Gaurav

Respondent :- State Of U.P. And 7 Others

Counsel for Petitioner :- Rajendra Kumar Singh

Counsel for Respondent :- G.A.

33.Case :- CRIMINAL MISC. WRIT PETITION No. - 16409 of 2020

Petitioner :- Soorja Devi

Respondent :- State Of U.P. And 10 Others

Counsel for Petitioner :- Amar Nath Singh

Counsel for Respondent :- G.A.

34.Case :- CRIMINAL MISC. WRIT PETITION No. - 554 of 2021

Petitioner :- Ramji Dubey

Respondent :- State Of U P And 8 Others

Counsel for Petitioner :- Shashi Kumar Dwivedi,Dashrath Lal Dwivedi,Hanuman

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Kinkar

Counsel for Respondent :- G.A.

35.Case :- CRIMINAL MISC. WRIT PETITION No. - 16430 of 2020

Petitioner :- Ashok Kumar Harizan

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Prakhar Srivastava

Counsel for Respondent :- G.A.

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Shamim Ahmed,J.

(Per: Surya Prakash Kesarwani, J.)

1. Heard learned counsels for the petitioners and the learned A.G.A.

for the State-respondents in this batch of writ petitions.

2. All the above noted writ petitions have been filed by the petitioners

praying for a direction to the concerned police authorities for fair and proper

investigation in criminal cases in which investigation is going on. Thus,

following questions of law are involved in the present writ petition:-

(a) Whether the jurisdictional Magistrate has power to direct the

police authority concerned for fair and proper investigation?

(b) Whether the petitioners are justified to file writ petitions

under Article 226 of the Constitution of India without

approaching the concerned Magistrate under Section 156(3) of

the Code of Criminal Procedure, 1973 for fair and proper

investigation?

Submissions:

3. Learned counsel for the petitioners submitted that an important

facet of the rule of law is that in criminal justice system, investigation into

the crime should be fair, in accordance with law and should not be tainted.

Therefore, if the investigating authority is not fairly and properly

investigating into crime then this court has power to issue appropriate

directions under Article 226 of the Constitution of India. They further

submitted that once the power is available to this court, there is no need to

6

invoke the powers of the concerned Magistrate under Section 156(3) of the

Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’).

4. Learned A.G.A. submitted that the Magistrate has the power under

Section 156(3) of the Cr.P.C. to order for fair and proper investigation and,

therefore, the petitioners should have approached the concerned Magistrate

for redressal of their grievances.

Discussion and Findings:

5. We have carefully considered the submissions of the learned

counsels for the parties.

6. Relevant provisions for the purposes of controversy involved in the

present writ petitions are Sections 2(c), 2(d), 2(g), 2(h), 36 and 156, Cr.P.C.,

which are reproduced below:

“Section 2(c):- “cognizable offence” means an offence for which,

and “cognizable case” means a case in which, a police officer may,

in accordance with the First Schedule or under any other law for

the time being in force, arrest without warrant.

Section 2(d):- “complaint” means any allegation made orally or in

writing to a Magistrate, with a view to his taking action under this

Code, that some person, whether known or unknown, has

committed an offence, but does not include a police report.

Section 2(g):- “inquiry” means every inquiry, other than a trial,

conducted under this Code by a Magistrate or Court;

Section 2(h):- “investigation” includes all the proceedings under

this Code for the collection of evidence conducted by a police

officer or by any person (other than a Magistrate) who is

authorised by a Magistrate in this behalf.

Section 36:- Powers of superior officers of police. Police officers

superior in rank to an officer in charge of a police station may

exercise the same powers, throughout the local area to which they

are appointed, as may be exercised by such officer within the

limits of his station.

Section 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 cognizable case which a Court

having jurisdiction over the local area within the limits of such

7

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.”

Fair Investigation - Rule of Law:

7. The criminal justice system mandates that any investigation into the

crime should be fair, in accordance with law and should not be tainted. It is

equally important that interested or influential persons are not able to

misdirect or hijack the investigation, so as to throttle a fair investigation

resulting in the offenders escaping punitive course of law. These are

important facets of the rule of law. Breach of rule of law amounts to

negation of equality under Article 14 of the Constitution of India. Article 21

of the Constitution of India makes it clear that the procedure in criminal

trials must be right, just and fair and not arbitrary, fanciful or oppressive,

vide Menka Gandhi vs. Union of India

1

(para-7) and Vinubhai Haribhai

Malviya and others vs. State of Gujrat and another

2

(paras-16 and 17)

and Subramanian Swamy vs. C.B.I.

3

(para-86). Article 21 enshrines and

guarantees the precious right of life and personal liberty to a person which

can only be deprived on following the procedure established by law in a fair

trial which assures the safety of the accused. The assurance of a fair trial is

the first imperative of the dispensation of justice, vide Commissioner of

Police, Delhi vs. Registrar, Delhi High Court, New Delhi

4

(para-16). The

ultimate aim of all investigation and inquiry whether by the police or by the

Magistrate is to ensure that those who have actually committed a crime, are

correctly booked and those who have not, are not arraigned to stand trial.

This is the minimal and fundamental requirement of Article 21 of the

Constitution of India. Interpretation of provisions of Cr.P.C. needs to be

made so as to ensure that Article 21 is followed both in letter and in sprit. “A

speedy trial” is the essence of companion in concept in “fair trial”. Both

being inalienable jurisprudentially, the guarantee under Article 21 of the

Constitution of India embraces both life and liberty of the accused as well as

interest of the victim, his near and dear ones as well as of the community at

1 AIR 1978 SC 597

2 AIR 2019 SC 5233

3 (2014) 8 SCC 682

4 AIR 1997 SC 95

8

large and, therefore, cannot be alienated from each other. A fair trial includes

fair investigation as reflected from Articles 20 and 21 of the Constitution of

India. If the investigation is neither effective nor purposeful nor objective

nor fair, the courts may if considered necessary, may order fair investigation,

further investigation or reinvestigation as the case may be to discover the

truth so as to prevent miscarriage of justice. However, no hard and fast rules

as such can be prescribed by way of uniform and universal invocation and

decision shall depend upon facts and circumstances of each case.

8. Fair and proper investigation is the primary duty of the

investigating officer. In every civilized society, the police force is invested

with powers of investigation of a crime to secure punishment for the

criminal and it is in the interest of the society that the investigating agency

must act honestly and fairly and not resort to fabricating false evidence or

creating false clues only with a view to secure conviction because such acts

shake the confidence of the common man not only in the investigating

agency but in the ultimate analysis in the system of dispensation of criminal

justice. Proper result must be obtained by recourse to proper means,

otherwise it would be an invitation to anarchy, vide Rampal Pithwa

Rahidas vs. State of Maharastra

5

(para-37). Investigation must be fair and

effective and must proceed in the right direction in consonance with the

ingredients of the offence and not in a haphazard manner moreso in serious

case. Proper and fair investigation on the part of the investigating officer is

the backbone of rule of law vide Sasi Thomas vs. State

6

(para-15 and 18).

Investigation under the Cr.P.C.:-

9. No investigating agency can take unduly long time in completing

investigation. There is implicit right under Article 21 for speedy trial which

in turn encompasses speedy investigation, inquiry, appeal, revision and

retrial. There is clear need for time line in completing investigation for

having in-house oversight mechanism wherein accountability for adhering to

lay down timeline, can be fixed at different levels in the hierarchy, vide

Dilawar vs. State of Haryana

7

(paras-4 to 8), Menka Gandhi (supra),

Hussainara Khatoon (I) vs. State of Bihar

8

, Abdul Rehman Antulay vs.

R.S. Nayak

9

and P. Ramchandra Rao vs. State of Karnatka

10

.

5 1994 Suppl. (2) SCC 73

6 (2006) 12 SCC 421

7 (2018) 16 SCC 521

8 (1980) 1 SCC 81

9 (1992) 1 SCC 225

10 (2002) 4 SCC 578

9

10. For the purposes of investigation, offences are divided into two

categories “cognizable” and “non-cognizable”. When information of a

cognizable offence is received or such commission is suspected, the proper

police officer has the authority to enter in the investigation of the same but

where the information relates to a non-cognizable offence, he shall not

investigate it without the order of the competent Magistrate. Investigation

includes all the proceedings under the Cr.P.C. for the collection of

evidence conducted by a police officer or by any person other than a

Magistrate (who is authorised by a Magistrate in his behalf). Investigation

consists of steps, namely (i) proceeding to spot, (ii) ascertainment of the

facts and circumstances of the case, (iii) discovery and arrest of the

suspected offender, (iv) collection of evidence relating to the commission of

the offence and (v) formation of opinion as to whether on the material

collected therein to place the accused before a Magistrate for trial and if so

to take necessary steps for the same by filing a chargesheet under Section

173, Cr.P.C., vide H.N. Rishbud vs. State of Delhi

11

.

Remedy for Proper Investigation:-

11. Section 156(1) confers power upon any officer in-charge of a

police station to investigate any cognizable case. Section 156(3) provides for

a cheque by the Magistrate on the police performing its duties under Chapter

XII, Cr.P.C. In cases where the Magistrate finds that 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.

12. In Sakiri Vasu vs. State of U.P. and others

12

(paras-11 to 18 and

27 to 30) Hon’ble Supreme Court considered Section 156(3), Cr.P.C. and

after referring to its earlier decisions in Mohd. Yousuf vs. Smt. Afaaq

Jahan

13

(para-11), Dilawar Singh vs. State of Delhi

14

(para-17), State of

Bihar vs. A.C. Saldana

15

(para-19) and also refering to its judgments on the

point of “doctrine of implied powers”, in Union of India vs. Paras

Laminates (P) Ltd.

16

, I.T.O. vs. Mohd. Kunhi

17

, Reserve Bank of India

vs. Peerless General Finance and Investment Company Ltd

18

, Chief

11 AIR 1955 SC 196

12 (2008) 2 SCC 409

13 (2006) 1 SCC 627

14 JT 2007 (10) SC 585

15 AIR 1980 SC 326

16 (1990) 4 SCC 453

17 AIR 1969 SC 430,

18 (1996) 1 SCC 642

10

Executive Officer & Vice Chairman Gujarat Maritime Board vs. Haji

Daud Haji Harun Abu

19

, J.K. Synthetics Ltd. vs. Collector of Central

Excise

20

, State of Karnataka vs. Vishwabharati House Building Co-op

Society

21

, 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 Cr.P.C., then he can approach the

Superintendent of Police under Section 154(3) Cr.P.C. by an

application in writing. Even if that does not yield any satisfactory

result in the sense that either the FIR is still not registered, or that

even after registering it no proper investigation is held, it is open

to the aggrieved person to file an application under Section

156 (3) Cr.P.C. before the learned Magistrate concerned. If such

an application under Section 156 (3) is filed before the

Magistrate, the Magistrate can direct the FIR to be registered and

also can direct a proper investigation to be made, in a case

where, according to the aggrieved person, no proper

investigation was made. The Magistrate can also under the same

provision monitor the investigation to ensure a proper

investigation.

12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. 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 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) 12 SCC 641 (JT vide para 17). We would

further clarify that even if an FIR has been registered and even if

19 1996 (11) SCC 23

20 (1996) 6 SCC 92

21 2003 (2) SCC 412

11

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) 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:

“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 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 (1980) 1 SCC 554 (SCC: 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., 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

12

impliedly also grants the power of doing all such acts or employ

such means as are essentially necessary to its execution.

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

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 200Cr.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.

29. In Union of India vs. Prakash P. Hinduja and another (2003) 6

SCC 195 (SCC vide para 13), it has been observed by this Court

that a Magistrate cannot interfere with the investigation by the

police. However, in our opinion, the ratio of this decision would

only apply when a proper investigation is being done by the police.

If the Magistrate on an application under Section 156(3) Cr.P.C. is

satisfied that proper investigation has not been done, or is not

being done by the officer-in-charge of the concerned police

station, he can certainly direct the officer in charge of the police

station to make a proper investigation and can further monitor the

same (though he should not himself investigate).”

(Emphasis supplied)

13. The principles laid down in the case of Sakiri Vasu (supra) has

been reiterated by Hon’ble Supreme Court in Sudhir Bhaskar Rao Tambe

vs. Hemant Yaswant Dhage

22

(paras-2, 3 and 4) and Vinay Tyagi vs.

Irshad Ali

23

(paras-40 to 40.6, 43, 44, 45, 46, 47, 48). In the case of Vinay

Tyagi (supra), Hon’ble Supreme Court held as under:

“43. At this stage, we may also state another well-settled canon of

criminal jurisprudence that the superior courts have the jurisdiction

under Section 482 of the Code or even Article 226 of the Constitution of

India to direct ‘further investigation’, ‘fresh’ or ‘de novo’ and even

‘reinvestigation’. ‘Fresh’, ‘de novo’, and ‘reinvestigation’ are synonymous

22 (2016) 6 SCC 277

23 (2013) 5 SCC 762

13

expressions and their result in law would be the same. The superior courts

are even vested with the power of transferring investigation from one

agency to another, provided the ends of justice so demand such action. Of

course, it is also a settled principle that this power has to be exercised by

the superior courts very sparingly and with great circumspection.

44. We have deliberated at some length on the issue that the powers of the

High Court under Section 482 of the Code do not control or limit, directly

or impliedly, the width of the power of Magistrate under Section 228 of

the Code. Wherever a charge sheet has been submitted to the Court, even

this Court ordinarily would not reopen the investigation, especially by

entrusting the same to a specialised agency. It can safely be stated and

concluded that in an appropriate case, when the court feels that the

investigation by the police authorities is not in the proper direction and

that in order to do complete justice and where the facts of the case

demand, it is always open to the Court to hand over the investigation to

a specialised agency. These principles have been reiterated with approval

in the judgments of this Court in the case of Disha v. State of Gujarat &

Ors. [(2011) 13 SCC 337]. Vineet Narain v. Union of India [(1998) 1 SCC

226], Union of India v. Sushil Kumar Modi [1996 (6) SCC 500]

and Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200].

48. What ultimately is the aim or significance of the expression ‘fair and

proper investigation’ in criminal jurisprudence? It has a twin purpose:

Firstly, the investigation must be unbiased, honest, just and in

accordance with law; secondly, the entire emphasis on a fair

investigation has to be to bring out the truth of the case before the court

of competent jurisdiction. Once these twin paradigms of fair investigation

are satisfied, there will be the least requirement for the court of law to

interfere with the investigation, much less quash the same, or transfer it to

another agency. Bringing out the truth by fair and investigative means in

accordance with law would essentially repel the very basis of an unfair,

tainted investigation or cases of false implication. Thus, it is inevitable

for a court of law to pass a specific order as to the fate of the

investigation, which in its opinion is unfair, tainted and in violation of

the settled principles of investigative canons.”

(Emphasis supplied)

14. In the case of Vinubhai Haribhai Malviya and others vs. State

of Gujrat and another

24

(para-23), Hon’ble Supreme Court held as under:

“23. It is thus clear that the Magistrate’s power under Section

156(3) of the CrPC is very wide, for it is this judicial authority

that must be satisfied that a proper investigation by the police

takes place. To ensure that a “proper investigation” takes place

in the sense of a fair and just investigation by the police - which

such Magistrate is to supervise - Article 21 of the Constitution of

India mandates that all powers necessary, which may also be

incidental or implied, are available to the Magistrate to ensure a

proper investigation which, without doubt, would include the

24 AIR 2019 SC 5233

14

ordering of further investigation after a report is received by him

under Section 173(2); and which power would continue to enure in

such Magistrate at all stages of the criminal proceedings until the

trial itself commences. Indeed, even textually, the “investigation”

referred to in Section 156(1) of the CrPC would, as per the

definition of “investigation” under Section 2(h), include all

proceedings for collection of evidence conducted by a police

officer; which would undoubtedly include proceedings by way of

further investigation under Section 173(8) of the CrPC.”

(Emphasis supplied)

15. In the case of Sudhir Bhaskar Rao Tambe (supra) (paras-2, 3

and 4), Hon’ble Supreme Court following the judgment in the case of

Sakiri Vasu (supra) held 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),

Cr.P.C. If such an application under Section 156(3) Cr.P.C. 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. Thus, the law laid down by Hon’ble

Supreme Court is that after registration of the First Information Report

if proper investigation is not being done by the investigating officer, then

informant may approach the magistrate concerned under Section

156(3), Cr.P.C. so that proper investigation is done. A three judges bench

of Hon’ble Supreme Court in the case of M. Subramaniam and others vs.

S. Janki and others (Criminal Appeal No.102 of 2011 decided on

20.03.2020) quoted with approval the law laid down by two judges bench in

the case of Sakiri Vasu (supra) and Sudhir Bhaskar (supra) and thus, it

affirmed the principles laid down in those judgments that even if a first

information report has already been registered, on an application under

Section 156(3) Cr.P.C., the Magistrate can direct proper investigation and

writ petition for this purpose should not generally be entertained by the

High Court in view of the remedy available before the Magistrate under

Section 156(3), Cr.P.C.

16. In a recent judgment of this court dated 08.01.2021 in Criminal

Misc. Writ Petition No.16288 of 2020 (Ram Shila Gupta vs. State of U.P.

and 3 others), a Division Bench of this court has held as under:

15

“In the case of M. Subramanian and another Vs. Janki and another

(Criminal Appeal No.102 of 2011) decided on 20.03.2020, the Hon'ble

Supreme Court observed that if FIR has already been registered then the

Magistrate can direct proper investigation to be done which includes his

discretion, if he deems it necessary, recommending change of the

investigation officer, so that a proper investigation is done in the matter.

The High Courts have been flooded with writ petitions praying for

registration of the first information report or praying for a proper

investigation and 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. Hon'ble

Supreme Court further held that the complainant must avail of his

alternative remedy to approach the Magistrate concerned under Section

156(3) Cr.P.C 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 recommend to the

Senior Superintendent of Police/ Superintendent of Police 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. The observations made by the Hon'ble Supreme Court

are also in reiteration of the principle laid down by the Hon'ble Supreme

Court in the case of SUDHIR BHASKARRAO TAMBE VS. HEMANT

YASHWANT DHAGE AND OTHERS; 2016(6) SCC 277 and in the case

of SAKIRI VASU VS. STATE OF UTTAR PRADESH AND OTHERS,

2008(2) SCC 409.

In view of the aforesaid, we do not find any good reason to entertain the

writ petition.

Consequently, considering the submissions of the learned counsel for the

parties, this writ petition is dismissed leaving it open to the petitioner to

avail such remedy as may be available to him under law.”

17. In view of the discussions made above, we hold that if an

informant/ petitioner is aggrieved that proper/ fair investigation is not

being done by the investigating officer, then he/ she may approach the

concerned Magistrate by moving an application under Section 156(3)

Cr.P.C. for appropriate orders instead of invoking writ jurisdiction

under Article 226 of the Constitution of India.

18. For all the reasons aforestated, all the writ petitions are

dismissed leaving it open to the petitioners to approach the Magistrate

concerned under Section 156(3) of Cr.P.C. for fair and proper investigation.

Order Date :- 27.01.2021

NLY