Sakiri Vasu vs. State of U.P. and Ors.

Sakiri Vasu vs State Of U.P. And Others on 7 December 2007 Supreme Court of India Sakiri Vasu vs State Of U.P. And Others on 7 December 2007 Author: M Katju Bench: A.K. Mathur Markandey Katju CASE NO Appeal16807 State of U.P. and others DATE OF JUDGMENT: 07 12 2007 A.K. Mathur & Markandey Katju JUDGMENT CRIMINAL APPEAL NO. 1685 OF 2007No.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. 93007 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 Sahayakprayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigationthat 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 156is 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 12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10 this Court observed cid:19)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.(cid:20 Indian Kanoon Sakiri Vasu vs State Of U.P. And Others on 7 December 2007 13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007SC 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 156states cid:19) A n y M a g i s t r a t e e m p o w e r e d u n d e r S e c t i o n 1 9 0 m a y o r d e r s u c h a n i n v e s t i g a t i o n a s abovementioned.(cid:20) The words `as abovementioned(cid:18) obviously refer to Section 156which 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 326Cr.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 ruleis quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his(3rd edn page 267): Indian Kanoon Sakiri Vasu vs State Of U.P. And Others on 7 December 2007 cid:19)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 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 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 646Chief Executive Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu 1996SCC 23 J.K. Synthetics Ltd. vs Collector of Central Excise AIR 1996 SC 3527 State of Karnataka vs. Vishwabharati House Building Co op Society 2003SCC 412is 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 Indian Kanoon Sakiri Vasu vs State Of U.P. And Others on 7 December 2007 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 properlybefore 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 2003SCC 195it 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 sameSCC 333R.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. Saldannabut 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 Indian Kanoon Sakiri Vasu vs State Of U.P. And Others on 7 December 2007 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 2002SCC 521this 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 Hon(cid:18)ble Judges of the High Courts Indian Kanoon 

Summary: Introduction:  The provision of Section 156(3) of the Criminal Procedure Code is very wide. This one-line provision entitles the Magistrate with such incidental powers which are necessary for ensuring a proper investigation. The case of Sakiri Vasu vs. State of U.P. and Ors is of significant importance as it was in this case that the Supreme Court directed the flow of writ under Section 482 of Cr.P.C. towards the Magistrate thereby empowering him under Section 156(3) to direct the police in the case where the FIR is not registered or where no proper investigation is being carried out. Facts:  On 23rd August 2003, Mr. S. Ravishankar who was a Major in the Indian Army was found dead at the Mathura Railway station. After the investigation carried out by the Government of Railway Police (GRP Matura) It was stated that the cause of death was due to an accident or suicide.  Further two Courts of Inquiry were held by the Army officials wherein based on the statements of Mr. Pradeep Kumar (domestic servant) and eye-witness Roop Singh it was concluded that Major S. Ravishankar had committed suicide. Aggrieved by the decision of the Court of Inquiry Mr. Sakiri Vasu [hereinafter referred to as the “Appellant”] who was the father of Major S. Ravishankar filed a writ petition in the Allahabad High Court alleging that his son was murdered as he discovered the rampant corruption happening in the Matura Unit of the army and thereby prayed that an investigation should be carried out by Central Bureau of Investigation (CBI) on this matter. However, the petition was dismissed rejecting the prayer. Dissatisfied with this the appellant by way of special leave applied before the Supreme Court.  Issue:  Whether Magistrate can interfere in case of improper or unfair investigation. Whether one can insist that investigation be carried out by a particular agency.  Observation: The Court taking in the view (para 8) of CBI and another vs. Rajesh Gandhi and another stated that any person aggrieved by any decision can only claim for proper investigation, he has no right to choose a particular agency for that investigation.  Considering the above condition the Court stated under Section 154 of Cr.P.C. if the police station is not registering FIR then a person by making an application in writing under Section 154(3) approaches the Superintendent of Police. Further, if a person is dissatisfied that the investigation carried is not proper then he under Section 156(3) can apply before the Magistrate. The Magistrate under Section 156(3) has powers to direct the police to register the FIR and can also monitor the investigation process.  The power provided by Section 156(3) is an independent power under which a magistrate can order re-opening of investigation even if the final report of investigation is submitted by the police. Therefore, Section 156(3) gives all such powers to the magistrate which are essential for ensuring proper execution of investigation.  The Court was of the opinion that one should not immediately rush to the High Court in case of grievance related to non-registration of FIR and/or improper investigation, rather, one must first rely on the alternative remedies provided under Section 154(3) and Section 36 of Cr.P.C. Even after this if a person is not satisfied then he may approach the Magistrate under Section 156(3). Judgment: Based on the observations mentioned above the Supreme Court held that High Court was justified in rejecting CBI investigation as there was no prima facie case calling for such investigation. As two investigations were carried out by the Army authorities along with the investigation made by G.R.P. at Mathura it was revealed that it was a suicide.  The Court further stated that it was unclear whether the report was accepted or not by the magistrate. If the report is not accepted and no order is passed by the magistrate he may do so by keeping in mind the above observations. However, if the report is already accepted then it’s the end of the matter. Conclusion: Therefore, in the above case it was observed that the Supreme Court disencouraged the practice of filing writ petition directly in the High Court for non-registration of FIR and/or improper investigation. Its thereby proposed that if a person is aggrieved that his FIR is not being filed or the police is not doing proper investigation then such a person should first avail the alternative remedies mentioned under Section 154(3) and Section 156(3) rather than directly approaching the High Court.  Reference: CBI and Anr vs. Rajesh Gandhi and Anr (1997 Cr. L.J. 63) Sakiri Vasu vs. State of U.P. and Ors. (Cr. Appeal no. 1685 of 2007) https://indiankanoon.org/doc/1836621