IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 WP(C).No. 38159 of 2007(P) -------------------------- PETITIONER: ------------ VASANTHI DEVI, AGED 51, D/O.BHAVANI AMMA, FLAT NO.226, EMS NAGAR, BLOCK NO.7, PATTOOR, THIRUVANANTHAPURAM. BY ADV. SRI.C.P.UDAYABHANU RESPONDENTS: ------------- 1. S.I. OF POLICE, KATTAKKADA POLICE STATION, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. STATE OF KERALA, REP. BY SECRETARY TO GOVT., HOME DEPARTMENT. BY GOVERNMENT PLEADER SRI.GIKKU JACOB SRI.S.SREEKUMAR AMICUS CURIAE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ W.P(C).No.38159 of 2007 ------------------------------------- Dated this the 12th day of February, 2008 ORDER Does the decision in Sakiri Vasu v. State of U.P [2008 AIR SCW 309] transform the law relating to magisterial supervision of investigation by police ? When the investigation has commenced and the victim, the defacto complainant, the accused or any other has a grievance that the investigation is not done properly, what is the remedy which such person has in law ? Can he come to this Court with a petition under Section 482 Cr.P.C or Article 226 of the Constitution ? Can or should this Court entertain and consider such a petition ? Before such person exhausts his alternative remedy of approaching the Magistrate under Section 156 (3) Cr.P.C should such a person ordinarily be permitted entry into this Court ? Unless exceptional and peculiar reasons are shown to exist, will this Court be justified in entertaining such a petition ? What is the ambit and sweep of the powers of the Magistrate under Section 156(3) Cr.P.C ? These are the questions that arise for consideration in this Writ Petition. 2. The factual matrix is simple. Crime No.2001 of 2007 of Kattakkada Police Station has been registered alleging offences punishable, inter alia, under Sections 468 and 420 r/w 34 I.P.C. The petitioner, a woman, aged 51 years is the defacto W.P(C).No.38159 of 2007 2 complainant in that crime. Her short grievance is that no proper investigation has been conducted by the Investigating Officer so far. She has come to this Court without and before approaching the learned Magistrate with request to issue appropriate directions to the Investigating police officer. 3. When this case came up for hearing, this Court felt that in the light of the decision in Sakiri Vasu v. State of U.P [2008 AIR SCW 309], the above questions deserve detailed consideration. Many similar matters, in which the same questions arise, have been grouped together and the counsel were requested to advance arguments on this specific aspect. Arguments have been heard. Sri.C.P.Udayabhanu, the learned counsel for the petitioner has advanced his arguments. At the request of this Court, Advocate S.Sreekumar, the Standing Counsel for C.B.I has advanced arguments as Amicus Curiae. The learned Public Prosecutor has also been heard. 4. The learned counsel for the petitioner Sri.C.P.Udayabhanu submits that the powers of this Court to entertain an application under Section 482 Cr.P.C and/or Article 226/227 of the Constitution are not taken away by the decision in Sakiri Vasu. In an appropriate case, such jurisdiction still vests W.P(C).No.38159 of 2007 3 with the Court. It is, in these circumstances, contended that in any view of the matter, the jurisdiction of this Court to entertain this petition under Article 226 of the Constitution cannot be held to be taken away by the decision in Sakiri Vasu. The counsel submits that this is a proper case where such jurisdiction can and ought to be invoked. 5. The learned counsel for the petitioner then contends that the nature of reliefs that can be sought from a Magistrate under Section 156(3) Cr.P.C is rather limited and cannot, at any rate, remedy the grievance of the petitioner. 6. The decision in Sakiri Vasu appears to have considered all these aspects. I shall first consider the relevant observations in Sakiri Vasu which clearly lay down that the Magistrate has competence to monitor and supervise the investigation in an on going manner when the investigation is pending. 7. In para.11 of the Sakiri Vasu, the learned Judges have stated so: “....................................................................... if even after registering it (FIR) 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 W.P(C).No.38159 of 2007 4 156(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.” (emphasis supplied) 8. Later in para.13, the learned Judges proceeded to observe as follows: “ We would further clarify that 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 as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.” (emphasis supplied) 9. Later, in para.15, the learned Judges have observed thus: “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.” (emphasis supplied) W.P(C).No.38159 of 2007 5 10. When it came to para.17, the learned Judges observed as follows: “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 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.” (emphasis supplied) 11. Later, after adverting to the principle that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective, the learned Judges construed the power under Section 156(3) Cr.P.C to include an implied power to direct a proper investigation. In para.24 the principle is stated with precision in the following words “In view of the above mentioned 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 W.P(C).No.38159 of 2007 6 expressly mentioned in Section 156(3) Cr.P.C, we are of the opinion that they are implied in the above provision.” (emphasis supplied) 12. The learned Judges elaborated on the above matter with a specific purpose. Their Lordships were aware of the practice of persons rushing to the High Courts with Writ Petitions or petitions under Section 482 Cr.P.C with grievances about inadequate investigation. The learned Judges wanted to make it clear that ordinarily such a practice should not be encouraged and the High Courts must refuse to interfere with such matters. In para.25 the following lines appear. “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 mattes, and relegate the petitioner to his alternative remedy.” (emphasis supplied) 13. To dispel, any impression that the Magistrate does not have powers to ensure a proper investigation, their Lordships proceeded further and stated so in para.27 in the following words. W.P(C).No.38159 of 2007 7 “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 girevance, 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.” 14. After observing that such an alternate remedy is available to such a petitioner, the learned Judges in para.28 stated thus: “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.” 15. The learned counsel for the petitioner expresses doubt as to whether this conclusion - that the Magistrate has powers under Section 156(3) Cr.P.C, is correct. Sri.S.Sreekumar, Standing Counsel for C.B.I, particularly relies on the decision of the 3 Judge Bench of the Supreme Court in State of Bihar v. W.P(C).No.38159 of 2007 8 J.A.C.Saldanna [AIR 1980 S.C 326.]. The counsel relies on the following observations in para.25 and 26 of the said decision. “para.25: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 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 cognisance 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) 71 Ind App 203 at p.213, where the Privy Council observed as under: W.P(C).No.38159 of 2007 9 “In India, as has been shown, there is a statutory right on the part of the police to investigate the 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 of the Criminal Procedure Code 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”. 26. 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.” W.P(C).No.38159 of 2007 10 16. The learned counsel then refers to paragraphs 13 and 14 of the decision in Union of India v. Prakash P.Hinduja [AIR 2003 SC 2612]. It reads as follows: 13. “The provisions referred to above occurring in Chapter XII of the Code show that detail and elaborate provisions have been made for securing that an investigation takes place regarding an offence of which information has been given and the same is done in accordance with the provisions of the Code. The manner and the method of conducting the investigation are left entirely to the officer-in-charge of the police station or a subordinate officer deputed by him. A Magistrate has no power to interfere with the same. The formation of the opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as contemplated by Ss.169 and 170 is to be that of the officer-in-charge of the police station and a Magistrate has absolutely no role to play at this stage. Similarly, after completion of the investigation while making a report to the Magistrate under S.173, the requisite details have to be submitted by the officer-in- charge of the police station without any kind of interference or direction of a Magistrate and this will include a report regarding the fact whether any offence appears to have been committed and if so, by whom, as provided by C1.(d) of sub-section (2)(i) of this Section. These provisions will also be applicable in cases under Prevention of Corruption Act, 1947 by virtue of S.7-A thereof and Prevention of Corruption Act, 1988 by virtue of S.22 thereof. 14. “The Magistrate is no doubt not bound to accept a final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justifies prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He W.P(C).No.38159 of 2007 11 would be doing so in exercise of powers conferred by S.190 Cr.P.C. The statutory provisions are, therefore, absolutely clear that the Court cannot interfere with the investigation.” (emphasis supplied) 17. The learned counsel then draws my attention to paragraph 19 of the decision in Union of India v. Prakash P.Hinduja [AIR 2003 SC 2612]. It reads as follows: “Thus the legal position is absolutely clear and also settled by Judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First information Report till the submission of the report by the officer-in-charge of police station in Court under S.173(2) Cr.P.C., this field being exclusively reserved for the investigating agency. ” (emphasis supplied) 18. Relying on these decisions, the learned counsel contends that the three Judges Bench of the Supreme Court having already held unambiguously in Saldanna that the powers under Section 156(3) Cr.P.C does not confer any power in the learned Magistrate to issue directions to the investigating officer in the course of the investigation and that such powers can be exercised only after the final report is filed, the observation in Sakiri Vasu that such directions can be issued may not be correct. W.P(C).No.38159 of 2007 12 19. This contention need not detain me any longer as I am not now engaged in any academic exercise to ascertain what would be the ideal law. I am attempting only to ascertain the law that is applicable to the facts which is binding on this court. Possible academic disagreement notwithstanding, all courts are bound by the decision in Sakiri Vasu as also the manner in which their lordships of the Supreme Court in that decision have understood and applied the previous decisions including those rendered by benches of larger coram. It is trite that the manner in which the previous judgments of larger corum have been understood and applied by subsequent judgments of lesser coram is also binding on other courts subsequently. In paragraph 29 of Sakiri Vasu, their lordships have considered the very specific question as to whether the learned Magistrate can interfere with the investigation and it is clearly held that directions can be given from time to time and the investigation can be monitored by the Magistrates in exercise of the powers under Section 156(3) Cr.P.C. That has been so said after specifically referring to the decision in Prakash P.Hinduja which in turn refers to all the other decisions on that aspect including Saldanna. The discussion appears in paragraph 29 in the following words. W.P(C).No.38159 of 2007 13 “In Union of India v. 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).” 20. Their lordships in Sakiri Vasu have referred to the decisions in Saldanna as also Prakash P.Hinduja and have come to a specific conclusion as to how the said decisions have to be understood and followed. That means that an argument that the observations in Sakiri Vasu are in conflict with the earlier decisions which have been specifically referred to therein cannot be of any effect while ascertaining the enforcible law. I am bound by Saldanna and Prakash P.Hinduja as also, more importantly for the present purpose, by the interpretation and understanding of the said decisions by the later decision in Sakiri Vasu. Judicial discipline mandates that all courts must follow the interpretation of Saldanna and Prakash P.Hinduja in Sakiri Vasu. 21. The learned counsel further points out that the W.P(C).No.38159 of 2007 14 conclusion that the Magistrates can and should monitor the investigation from time to time is fraught with difficulties and dangers. First of all, it is contended that the Magistracy does not have the time and resources to undertake on-going monitoring of investigations. This would add to the pressure of work of the Magistracy and they will not be able to live up to the challenge before them, it is urged. The judicial institution will become responsible, at least indirectly, but, certainly, morally for the quality of investigation. The Magistracy which has neither the time, the resources or the expertise to effectively monitor the investigation will have to own the responsibility for the quality of investigation. This might erode the public confidence in the judicial institution. That is a responsibility which the system can ill afford, it is urged. 22. The learned counsel further contends that interference with, as also the monitoring and supervision of the investigation, from time to time as contemplated in Sakiri Vasu would affect the concept of a fair trial. The Magistrate's primary function is adjudication of guilt when the matter comes before him after the final report is filed and an obligation to monitor investigation and issue directions from time to time before such final report is filed W.P(C).No.38159 of 2007 15 under Section 173 Cr.P.C. may militate against (and affect) the position and status of the Magistrate as an impartial and unbiased adjudicator, contends the learned counsel. Will not judicial Magistrates be reduced to police magistrates if there occurs such drastic transformation in their role vis a vis police investigation, queries the learned counsel. 23. Discussions and thoughts on this aspect provoke doubts and reservations; but certainly there can be no doubt about the law that is applicable in the light of the very clear statement in Sakiri Vasu. Judicial discipline commands and demands that this court must follow Sakiri Vasu which, I have already shown above, had considered every aspect of the matter. The learned Judges, it appears to me, were obviously concerned deeply about the poor quality of the investigation of crimes in this country and must have been persuaded to feel that the provisions of Section 156(3) Cr.P.C must be given a more dynamic and active interpretation to ensure that the quality of investigations in this country improves. Where proper investigation is conducted, it may not be necessary or possible for the Magistrate to invoke the powers under Section 156(3) Cr.P.C to monitor, supervise or interfere with the investigation. But as held in paragraph 29, W.P(C).No.38159 of 2007 16 when a proper investigation is not done the Magistrate has jurisdictional competence to interfere with the investigation. The power under Section 156(3) Cr.P.C, it has been clearly held, is wide enough to justify monitoring, supervision and even interference with the investigation in an appropriate case. 24. If this court cannot ordinarily invoke the powers under Section 482 Cr.P.C and Article 226 of the Constitution, it will be essential that the Magistrates consider the grievances made before them by persons like the petitioner in detail and give relief to such aggrieved persons. If this court would not entertain applications under Section 482 Cr.P.C and Article 226 of the Constitution ordinarily, and the Magistrates would not, in such ordinary cases, effectively invoke the powers under Section 156 (3) Cr.P.C., the quality and standard of investigation is bound to go down further. That would betray the concern and anxiety which had prompted the learned Judges in Sakiri Vasu to accept a dynamic and proactive role for the Magistrates at the stage of investigation. I refuse to accept the myopic view that the Hon'ble Judges in Sakiri Vasu were concerned only with the flooding of the High Courts with petitions under Section 482 Cr.P.C and Article 226 of the Constitution clamoring for efficient investigation. Their W.P(C).No.38159 of 2007 17 lordships, it appears to me to be evident, were concerned more about the need to improve the quality of investigation and the need of such investigation inspiring confidence of the polity. Crime free society is the ideal which the State has to strive for and a proper investigation in every crime is certainly an incident of the fundamental right to life under Article 21. I need only mention that it is for the learned Magistrates in the light of the decision in Sakiri Vasu to invoke their powers under Section