Sakiri Vasu vs State Of U.P. And Others on 7 December, 2007

    CASE NO.:

Appeal (crl.) 1685 of 2007

PETITIONER:

Sakiri Vasu

RESPONDENT:

State of U.P. and others

DATE OF JUDGMENT: 07/12/2007

BENCH:

A.K. Mathur & Markandey Katju

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1685 OF 2007

(Arising out of Special Leave Petition (Criminal) No.6404/ 2007)

MARKANDEY KATJU, J.

1. Leave granted.

2. This appeal is directed against the impugned judgment and order dated
13.7.2007 passed by the Allahabad High Court in Criminal Misc. Writ Petition No.
9308 of 2007.

3. Heard learned counsel for the parties and perused the record.

4. The son of the appellant was a Major in the Indian Army. His dead body was
found on 23.8.2003 at Mathura Railway Station. The G.R.P, Mathura investigated
the matter and gave a detailed report on 29.8.2003 stating that the death was
due to an accident or suicide.

5. The Army officials at Mathura also held two Courts of Inquiry and both times
submitted the report that the deceased Major S. Ravishankar had committed
suicide at the railway track at Mathura junction. The Court of Inquiry relied on
the statement of the Sahayak (domestic servant) Pradeep Kumar who made a
statement that deceased Major Ravishankar never looked cheerful; he used to sit
on a chair in the verandah gazing at the roof with blank eyes and deeply
involved in some thoughts and used to remain oblivious of the surroundings. The
Court of Inquiry also relied on the deposition of the main eye-witness, gangman
Roop Singh, who stated that Major Ravishankar was hit by a goods train that came
from Delhi.

6. The appellant who is the father of Major Ravishankar alleged that in fact it
was a case of murder and not suicide. He alleged that in the Mathura unit of the
Army there was rampant corruption about which Major Ravishankar came to know and
he made oral complaints about it to his superiors and also to his father.
According to the appellant, it was for this reason that his son was murdered.

7. The first Court of Inquiry was held by the Army which gave its report in
September, 2003 stating that it was a case of suicide. The appellant was not
satisfied with the findings of this Court of Inquiry and hence on 22.4.2004 he
made a representation to the then Chief of the Army Staff, General N.C. Vij, as
a result of which another Court of Inquiry was held. However, the second Court
of Inquiry came to the same conclusion as that of the first inquiry namely, that
it was a case of suicide.

8. Aggrieved, a writ petition was filed in the High Court which was dismissed by
the impugned judgment. Hence this appeal.

9. The petitioner (appellant herein) prayed in the writ petition that the matter
be ordered to be investigated by the Central Bureau of Investigation (in short
CBI). Since his prayer was rejected by the High Court, hence this appeal by
way of special leave.



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 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 JT
2007 (10) SC 585 (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) 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.,
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.



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, Cannanore vs. 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 vs. Paras Laminates AIR 1991 SC 696, Reserve Bank of
India vs. Peerless General Finance and Investment Company Ltd AIR 1996 SC 646
(at p. 656), Chief Executive Officer & Vice Chairman Gujarat Maritime Board vs.
Haji Daud Haji Harun Abu 1996 (11) SCC 23, J.K. Synthetics Ltd. vs. Collector of
Central Excise, AIR 1996 SC 3527, State of Karnataka vs. Vishwabharati House
Building Co-op Society 2003 (2) SCC 412 (at p. 432) etc.

23. In Savitri vs. Govind Singh Rawat AIR 1986 SC 984 this Court held that the
power conferred on the Magistrate under Section 125Cr.P.C. 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.

24. In view of the abovementioned legal position, we are of the view that
although Section 156(3) is verybriefly 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.

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 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.

29. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (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).

30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person
is aggrieved that a proper investigation has not been made by the officer-in-
charge of the concerned police station, such aggrieved person can approach the
Superintendent of Police or other police officer superior in rank to the
officer-in-charge of the police station and such superior officer can, if he so
wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001
(3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc.
Also, the State Government is competent to direct the Inspector General,
Vigilance to take over the investigation of a cognizable offence registered at a
police station vide State of Bihar vs. A.C. Saldanna (supra).

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.

32. In the present case, there was an investigation by the G.R.P., Mathura and
also two Courts of Inquiry held by the Army authorities and they found that it
was a case of suicide. Hence, in our opinion, the High Court was justified in
rejecting the prayer for a CBI inquiry.

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.

34. In the present case, we are of the opinion that the material on record does
not disclose a prima facie case calling for an investigation by the CBI. The
mere allegation of the appellant that his son was murdered because he had
discovered some corruption cannot, in our opinion, justify a CBI inquiry,
particularly when inquiries were held by the Army authorities as well as by the
G.R.P. at Mathura, which revealed that it was a case of suicide.



35. It has been stated in the impugned order of the High Court that the G.R.P.
at Mathura had investigated the matter and gave a detailed report on 29.8.2003.
It is not clear whether this report was accepted by the Magistrate or not. If
the report has been accepted by the Magistrate and no appeal/revision was filed
against the order of the learned Magistrate accepting the police report, then
that is the end of the matter. However, if the Magistrate has not yet passed any
order on the police report, he may do so in accordance with law and in the light
of the observations made above.

36. With the above observations, this appeal stands dismissed.

37. Let a copy of this judgment be sent by the Secretary General of this Court
to the Registrar Generals/Registrars of all the High Courts, who shall circulate
a copy of this Judgment to all the Honble Judges of the High Courts.