Magistrate has power to monitor during investigation and probe : Allahabad High Court

T7ITEM NO.58 COURT NO.7 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).7022 2009 From the judgement and order dated 08 09 2009 in CRLWP No 2482 2008 of The HIGH COURT OF BOMBAY SUDHIR BHASKARRAO TAMBE Petitioner(s VERSUS HEMANT YASHWANT DHAGE & ORS. Respondent(s With appln(s) for exemption from filing O.T. intervention stay permission to file additional documents Vol. III and office report WITH SLP(Crl) NO. 72109 With appln(s) for stay and office report Date: 12 04 2010 This Petition was called on for hearing today HON’BLE MR. JUSTICE MARKANDEY KATJU HON’BLE MR. JUSTICE A.K. PATNAIK For Petitioner(s) Mr. Shanti Bhushan Sr. Adv In SLP 7022 2009 Mr. R.N. Dhorde Adv Mr. T.M.Kanawade Adv Mr. M.Y.Deshmukh Adv.for Mr. Rameshwar Prasad Goyal Adv For Petitioner(s) Mr. R.F.Nariman Sr. Adv In SLP 7219 2009 Mr. R.N.Dhorde Adv Mr. T.M.Kanawade Adv Mr. Sushil Karanjkar Adv Mr. Vishal Patil Adv.for Mr. K.N. Rai Adv For Respondent(s) Mr. Ram Jethmalani Sr. Adv Mr. Sushil Kumar Sr. Adv Mr. Arun Kanade Adv Ms. P.R. Mala Adv Ms. Syed Mazag Andrabi Adv.for Mr. Rajnish Prasad Adv 2 Mr. Arun R. Pednekar Adv Mr. Sanjay Kharde Adv.for Ms. Asha Gopalan Nair Adv Mr. Jayant Bhushan Sr. Adv Mr.Jitendra Kumar Adv UPON hearing counsel the Court made the following O R D E R Leave granted The Appeals are allowed in terms of the signed In view of the order passed in the appeals no orders need be passed on the application for intervention and it is disposed of accordingly (Indu Satija Court Master Court Master No.7022 2009 Sudhir Bhaskarrao Tambe ..Appellant versus Hemant Yashwant Dhage & Others ..Respondents WITH CRIMINAL APPEAL NO. 767 OF 2010 No.72109 O R D E R Leave granted These Two Appeals have been filed against the common impugned judgment of the High Court of Bombay dated September 08 2009 The facts in detail have been set out in the and appointed a Special Investigating Officer to impugned judgment and hence we are not repeating the same By the impugned order the Bombay High Court has in paragraph 9 of its order changed the Investigating Officer investigate into the alleged offence This Court has held in Sakiri Vasu vs. State of U.P Others reported in AIR 2008 SC 907 that if a person has a grievance that his F.I.R. 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 2 not to go to the High Court under Article 226 of the Constitution of India but to approach the concerned Magistrate 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 F.I.R. 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. We have said this in Sakiri Vasu’s case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation We are of the opinion that 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. Hence we have held that the complainant must avail of his alternate remedy to approach the concerned Magistrate 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 3 investigation in the matter and he can also monitor the In view of the settled position in Sakiri Vasu’s case(supra) the impugned judgment of the High Court cannot be sustained and is hereby set aside. The concerned Magistrate is directed to ensure proper investigation into the alleged offence under Section 156(3) Cr.P.C. and if he deems it necessary he can also recommend to the S.S.P. S.P. concerned change of the Investigating Officer so that a proper investigation is done. The Magistrate can also monitor the investigation though he cannot himself investigate (as investigation is the job of the police Parties may produce any material they wish before the concerned Magistrate. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court The Appeals are allowed in the above terms In view of the aforesaid order no orders need be passed on the application for intervention and it is disposed of accordingly ...........................J [MARKANDEY KATJU NEW DELHI ...........................J APRIL 12 2010 [A.K. PATNAIK

Summary: The issue whether magistrate can monitor an investigation or probe into a criminal case where a party was aggrieved by the manner of investigation or probe was decided upon by the division bench of Allahabad High Court consisting of Justice Anjani Kumar Mishra and  Justice Deepak Verma in the matters between Satyaprakash v. State of Uttar Pradesh and Other CRIMINAL MISC. WRIT PETITION No. – 23 of 2022 decided on 20.1.2022 The facts of the case were a petition was filed seeking directions to the respondent authorities to conduct a fair investigation of a criminal case under Sections 363, 366 of the IPC and whether the suspects have been arrested or whether any criminal complaint has been made against them as the petitioner was aggrieved from the manner of conducting the investigation. The counsel on behalf of the petitioner contended that the police acted in collusion with the suspects and that the suspects had not been arrested and  yet no charges had been brought against the accused persons.Undoubtedly, the petitioner was a victim of the manner in which the investigation said to have been carried out against the private respondent. The judgement text does not mention any arguments made out by a counsel on behalf of the respondent. The Allahabad High Court held that Magistrate has the power to ‘monitor’ an investigation under section 156(3) of CrPC and a person injured by a police investigation can move the Magistrate to follow up on the investigation. Dismissing the present petition, the Supreme Court granted the petitioner the freedom to exercise the jurisdiction of the Magistrate available under the CRPC in the light of the law laid down by the Supreme Court.Citing various judgements like in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage (2016) 6 SCC 277, Sakiri Vasu v. State of Uttar Pradesh (2008) 2 SCC 409,  and M Subramaniam and another v. S Janaki and Anr, the court laid  that section 156 (3) is broad enough to include all these powers required of a Magistrate. It includes the authority to provide an appropriate investigation and, if the Magistrate is satisfied that a proper investigation has not been or has not been made by the police, to order an FIR registration and to order an appropriate investigation. The court opined that although succinctly stated, section 156 (3) of the CrPC is very broad and will include all incidental powers necessary to ensure a proper investigation.