SCR.A/2455/2007 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2455 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= = RUKSHANABANU D/O AHMEDALIKHANJI MEHMOODKHANJI W/O ILIYASKHAN - Applicant(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================= Appearance : MR NV SOLANKI for Applicant(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondents : 1-2-3 MR SV RAJU with MS HETVI H SANCHETI for Respondent(s) : 4 - 5. ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 22/04/2008 ORAL JUDGMENT 1. By this application under Article 226 of the Constitution of SCR.A/2455/2007 2/13 JUDGMENT India, the petitioner has prayed for the following substantive reliefs : “[14] The petitioner therefore most respectfully begs to pray Your Lordship to : [a] issue a writ of mandamus or any other appropriate writ under the Constitution of India including an order or directions in the nature of mandamus or any other such writ inter alia directing the respondent No.1 to transfer police investigation presently pending with Sola Police of Sola High Court Police Station in the form of two M. Cases bearing No.24/2007 filed by one Patel Girishbhai Prahladbhai Patel and No.25/2007 filed by Patel Mahendrabhai Hargovandas to CID Crime or Police authorities of Economic cell in-charge of the investigation of economic offences or any other independent and impartial investigating agency that may be deemed fit and proper by this Hon'ble Court in the facts and circumstances prevailing in this case and concerning the investigation of such M.Cases with Sola Police. [b] appropriate order or directions be issued to the respondent No.1 to carry out the investigation of both such M.cases as expeditiously as possible and by strictly following the provisions of Chapter 12 of Criminal Procedure Code in a manner so as to result into detection of the crime and all the various actual criminal offenders involved in the SCR.A/2455/2007 3/13 JUDGMENT commission of such crimes, at an earliest.” 2. The facts of the case stated briefly are that the petitioner herein had lodged a first information report before the Karanj Police Station, which was registered vide I – C.R. No.94/2007 against in all thirteen accused persons alleging commission of the offences punishable under Sections 467, 468, 471, 420, 416, 200, 199, 294B, 506(1), 114, 34, 35 and 120B of the Indian Penal Code. Pursuant to the aforesaid complaint, the concerned police officer carried out investigation and submitted a chargesheet before the concerned Court. It appears that the accused No.2 in the aforesaid complaint had lodged a complaint before the learned Judicial Magistrate First Class against the petitioner and others [in all thirteen accused persons], alleging commission of the offences punishable under Sections 406, 420, 467, 468, 471, 120B of the IPC, wherein the learned Judicial Magistrate had directed investigation under Section 156(3) of the Code, pursuant to which, the same was registered as Sola Police Station M.Case No.24/2007. It appears that the accused No.8 in the complaint filed by the petitioner herein had also lodged a complaint before the learned Judicial Magistrate First Class, pursuant to which investigation had been directed under Section 156(3) of the Code and the same was registered as Sola High Court Police Station M.Case No.25/2007. 3. It appears that all the aforesaid three complaints are in respect of the same transaction which had been entered into in respect of the land which was originally of the SCR.A/2455/2007 4/13 JUDGMENT ownership of the petitioner and her family members. Insofar as the complaint lodged by the petitioner is concerned, it is alleged that the accused in the complaint had entered into the said transaction by inducing her mother and her sister to enter into the said transaction, and by forging signatures of the petitioner and her other family members. On the other hand, in the complaint filed before the learned Magistrate against the petitioner, her family members and other accused, the allegation is that the petitioner had entered into the transaction in question with the complainant by producing a person whom they knew not to be their son/brother namely, Javedalikhan Ahmedalikhan Mehmoodkhan. 4. The present petition has been filed by the petitioner, who is the original complainant of the complaint being Karanj Police Station I – C.R. No.194/2007 and an accused in Sola High Court Police Station M.Case No.24/2007 and No.25/2007. According to the petitioner, the Karanj Police Station has pursuant to the complaint lodged by her, carried out investigation and submitted chargesheet before the concerned Court. However, insofar as the complaint filed against the petitioner and others is concerned, the Sola High Court Police has exhibited gross inaction and dereliction of statutory duty in investigating the M.Case before it. The grievance voiced in the petition is that the Sola Police Station is hand in glove with the purchasers and as such, has done nothing to aid the administration of justice by booking the real offenders. Being aggrieved by the inaction of the Sola Police in carrying out the investigation into the aforesaid M.Case, SCR.A/2455/2007 5/13 JUDGMENT the petitioner has moved the present petition praying for the relief noted hereinabove. 5. Mr.N.V.Solanki, learned advocate for the petitioner, Mr.L.B.Dabhi, learned Additional Public Prosecutor for respondents No.1, 2 and 3 and Mr.S.V.Raju, learned advocate with Ms.Hetvi Sancheti, learned advocate for respondents No.4 and 5. 6. Mr.N.V.Solanki, learned advocate for the petitioner has vehemently assailed the inaction on the part of Sola Police Station in investigating into the offences registered against the petitioner and other accused in connection with M.Case No.24/2007 and No.25/2007. It is submitted that in order to ensure that the real offenders are found, the police should investigate expeditiously as envisaged under the provisions of Chapter XII of the Code. It is submitted that, during the course of police investigation of the crime, the grievance of the accused cannot be throttled. It is submitted that the investigation carried out by the Sola Police Station is in breach of the provisions of Chapter XII of the Code, inasmuch as that the Sola Police has grossly failed to call the petitioner and her two sisters and one brother for the purpose of recording their statements. That the foremost task to be undertaken by the Sola Police is to arrest such purchasers of land themselves and thereafter to proceed further in the detection of the crime committed by them along with other persons and thus, to intercept them forthwith without any loss of time. SCR.A/2455/2007 6/13 JUDGMENT 7. Referring to the provisions of Section 157(1) of the Code, the learned advocate has submitted that the police have neither gone to the spot nor approached the petitioner nor taken any measures of discovery and arrest. In support of his submissions, the learned advocate for the petitioner has placed reliance upon a decision of the Supreme Court in the case of Raj Deo Sharma v. State of Bihar, AIR 1998 SC 3281. Reliance has also been placed upon a decision of the Supreme Court in the case of S.N.Sharma v. Bipin Kumar Tiwari and others, AIR 1970 SC 786 for the proposition that though the Code gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. Reliance is also placed upon a decision of the Apex Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604. 8. It is alleged that the Sola police has so far not taken any measures or other steps in the direction of arresting of such offenders involved in the commission of very serious offences. According to the learned advocate for the petitioner, the action of the Sola police in not arresting the purchasers of the land in question and in not calling the petitioner, her brother and her two sisters for SCR.A/2455/2007 7/13 JUDGMENT recording their statements though they are arraigned as accused in the above mentioned two M.Cases speak volumes about the lethargy, inaction, negligence and illegality in the matter of investigation of such serious offences. It is submitted that in view of the inaction on part of Sola police in investigating into the offence, the petitioner and her family members are wrongly deprived of property and are facing severe charges. It is submitted that the police being hand in glove with the purchasers is shielding the real accused persons. It is submitted that the delay in the investigation of the offence against the petitioner is violative of petitioner's fundamental rights under Article 21 of the Constitution of India, inasmuch as the petitioner's right to speedy trial is violated on account of inaction of part of the Sola police. Various other submissions have been advanced by the learned advocate for the petitioner, however, considering the view this Court is inclined to take in the matter, it is not necessary to reproduce them or deal with the same at length. 9. On the other hand, Mr.S.V.Raju, learned advocate for the respondents No.4 and 5 has submitted that the allegations as regards violation of the provisions of Chapter XII of the Code are vague. It is submitted that it is not pointed out as to exactly in what manner the provisions of Chapter XII have been violated by the concerned police authorities. It is submitted that it is merely the say of the petitioner that the investigation is not being carried out expeditiously, whereas actually there is no such gross delay in carrying out the SCR.A/2455/2007 8/13 JUDGMENT investigation so as to warrant the filing of the present petition. It is submitted that the present petition is a mischievous petition inasmuch as the same appears to have been filed with a view to escape from being arrested and is merely a method of diverting the police action. It is submitted that there are no allegations to justify the transfer of investigation. It is contended that the petitioner is an accused in both the M.Cases, hence till the process is issued by the concerned Court, the petitioner has no locus standi insofar as the investigation into the said offences is concerned. It is submitted that the present petition has been filed with a malafide intention to ensure that the Sola Police Station carries out investigation under threat of the petitioner. 10.In support of his submissions, the learned advocate for the respondents No.4 and 5 has placed reliance upon the decision of the Apex Court in the cases of R.Sarala v. T.S.Velu and others, (2000)4 SCC 459, and Adalat Prasad v. Rooplal Jindal and others, AIR 2004 SC 4674. The learned counsel has also drawn the attention of the Court to the recent decision of the Apex Court in the case of Sakiri Vasu v. State of Uttar Pradesh and others, (2008)2 SCC 409, wherein it has been held that if pursuant to a direction given by the Magistrate to carry out investigation under Section 156(3) of the Code, according to the aggrieved person, no proper investigation is made, the Magistrate can also under the same provision monitor the investigation to ensure proper investigation. SCR.A/2455/2007 9/13 JUDGMENT 11.This Court has perused the record of the case and has considered the submissions advanced by the learned advocates for the parties. 12.A perusal of the averments made in the petition shows that after the direction issued by the learned Magistrate under Section 156(3) of the Code, pursuant to which M.Case No.24/2007 and No.25/2007 came to be registered by the Sola High Court Police Station, the petitioner has not made any application before any authority seeking speedy investigation in connection with the said cases. Both the aforesaid cases have been registered in September, 2007, whereas the present petition has been filed in December, 2007 alleging inaction on the part of police authorities in carrying out the investigation. It is settled legal position that the field of investigation of any cognizable offence is exclusively within which the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code. [See State of Haryana v. Bhajanlal (supra)]. It is, therefore, not the function of SCR.A/2455/2007 10/13 JUDGMENT this Court to direct the concerned police officer to carry out investigation in any particular manner. Insofar as the transfer of investigation is concerned, it is an admitted position that the direction to investigate the offence has been given by the learned Judicial Magistrate, hence, any grievance against the investigating agency is required to be raised before the concerned Magistrate. It is not the case of the petitioner that the petitioner has approached the learned Judicial Magistrate or the higher police authorities seeking transfer of investigation, and that, such request has been turned down by the said authorities. In the circumstances, when there is no demand or refusal, the basic ingredient for issuance of a writ of mandamus is not satisfied. 13.Without entering into the aspect as to whether it is permissible for the petitioner who is an accused in the aforesaid M.Case to move the present application seeking transfer of investigation and expeditious investigation into the case lodged against her, this Court is of the view that in view of the law laid down in the case of Sakiri Vasu (supra), this writ petition does not deserve to be entertained. 14.The Apex Court in the aforesaid decision has held as follows : “24. 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) CrPC to order SCR.A/2455/2007 11/13 JUDGMENT 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) CrPC, 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 CrPC. 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 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned 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) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the SCR.A/2455/2007 12/13 JUDGMENT officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover he has a further remedy of filing a criminal complaint under Section 200 CrPC. 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 CrPC 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) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.“ 15.In view of the law laid down by the Apex Court in the SCR.A/2455/2007 13/13 JUDGMENT decision cited hereinabove, if any person is aggrieved by the manner in which the investigation is carried out pursuant to a direction to carry out investigation under Section 156(3) of the Code, it is for such aggrieved concerned person to draw the attention of the learned Magistrate, who on being satisfied that proper investigation has not been done or is not being done by the officer in-charge of the Police Station concerned, can 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). As held by the Apex Court, the High Courts should not entertain writ petition or Section 482 petitions when there are so many alternative remedies available to the aggrieved persons. 16.For the foregoing reasons and more particularly, in view of the law laid down by the Apex Court in the case of Sakiri Vasu (supra), this Court finds no merit in the present petition and the same is, accordingly, dismissed in limine. [HARSHA DEVANI, J.] parmar*