Fair and proper investigation is a right of every citizen and in case of any violation remedy under Section 156(3) of Crpc to be invoked: Allahabad High Court

Judgment reserved on 12.01.2021 Judgment delivered on 27.01.2021 Court No. 48 1. Case : CRIMINAL MISC. WRIT PETITION No. 156920 Petitioner : Ajay Kumar Pandey Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Sachida Nand Tiwari Counsel for Respondent : G.A 2. Case : CRIMINAL MISC. WRIT PETITION No. 157520 3. Case : CRIMINAL MISC. WRIT PETITION No. 157620 4. Case : CRIMINAL MISC. WRIT PETITION No. 157620 Petitioner : Shashi Gangwar Respondent : State Of U P And 5 Others Counsel for Petitioner : Varinder Singh Counsel for Respondent : G.A Petitioner : Smt. Deepu Devi Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Ajay Kumar Kashyap Counsel for Respondent : G.A Petitioner : Ganesh Bind And Another Respondent : State Of U P And 3 Others Counsel for Petitioner : Ulajhan Singh Bind Counsel for Respondent : G.A Petitioner : Ram Raksha Respondent : State Of U P And 2 Others Counsel for Petitioner : Sanjay Kumar Mishra Counsel for Respondent : G.A Petitioner : Khushnuma Respondent : State Of U.P. And 4 Others Counsel for Petitioner : Firdos Ahmad Counsel for Respondent : G.A Petitioner : Smt. Shilpi Mitchell Innes Respondent : State Of U.P. And 11 Others Counsel for Petitioner : Shree Prakash Giri Counsel for Respondent : G.A 7. Case : CRIMINAL MISC. WRIT PETITION No. 157820 6. Case : CRIMINAL MISC. WRIT PETITION No. 157820 5. Case : CRIMINAL MISC. WRIT PETITION No. 157720 8. Case : CRIMINAL MISC. WRIT PETITION No. 170520 Petitioner : Manju Devi Respondent : State Of U P And 14 Others Counsel for Petitioner : Diwan Saifullah Khan Abhishek Ankur Chaurasia Counsel for Respondent : G.A 9. Case : CRIMINAL MISC. WRIT PETITION No. 163420 10. Case : CRIMINAL MISC. WRIT PETITION No. 156920 Petitioner : Mangari Devi Respondent : State Of U.P. And 6 Others Counsel for Petitioner : Ram Awtar Counsel for Respondent : G.A Petitioner : Rama Devi Respondent : State Of U.P. And 6 Others Counsel for Petitioner : Anil Kumar Tripathi Counsel for Respondent : G.A Petitioner : Lalit Kumar Tiwari Respondent : State Of U P And 2 Others Counsel for Petitioner : Arun Kumar Tiwari Counsel for Respondent : G.A 11. Case : CRIMINAL MISC. WRIT PETITION No. 157220 12. Case : CRIMINAL MISC. WRIT PETITION No. 157320 Petitioner : Savita Devi Respondent : State Of U.P. And 12 Others Counsel for Petitioner : Arvind Prabodh Dubey Ashok Kumar Giri Counsel for Respondent : G.A 13. Case : CRIMINAL MISC. WRIT PETITION No. 157420 Petitioner : Anshu Kumar Respondent : State Of U.P. And 3 Others Counsel for Petitioner : Anand Mohan Pandey Om Prakash Katiyar Counsel for Respondent : G.A 14. Case : CRIMINAL MISC. WRIT PETITION No. 163420 15. Case : CRIMINAL MISC. WRIT PETITION No. 170120 Petitioner : Satyanand Singh Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Mirza Ali Zulfaqar Counsel for Respondent : G.A Petitioner : Smt. Indrawati Respondent : State Of U.P. And 3 Others Counsel for Petitioner : Janardan Yadav Counsel for Respondent : G.A 16. Case : CRIMINAL MISC. WRIT PETITION No. 170320 Petitioner : Bharti Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Vikash Chandra Tiwari Counsel for Respondent : G.A 17. Case : CRIMINAL MISC. WRIT PETITION No. 170320 Petitioner : Smt. Devika Mahajan Respondent : State Of U.P. And 6 Others Counsel for Petitioner : Alok Kumar Srivastava Counsel for Respondent : G.A 18. Case : CRIMINAL MISC. WRIT PETITION No. 170420 Petitioner : Rakesh Kumar Yadav Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Sandeep Kumar Devendra Singh Counsel for Respondent : G.A 19. Case : CRIMINAL MISC. WRIT PETITION No. 170420 Petitioner : Ram Dhani Respondent : State Of U P And 6 Others Counsel for Petitioner : Om Prakash Vishwakarma Counsel for Respondent : G.A 20. Case : CRIMINAL MISC. WRIT PETITION No. 170520 Petitioner : Smt Suman Devi Respondent : State Of U P And 4 Others Counsel for Petitioner : Sadhana Singh Archana Singh Counsel for Respondent : G.A 21. Case : CRIMINAL MISC. WRIT PETITION No. 171120 22. Case : CRIMINAL MISC. WRIT PETITION No. 157920 Petitioner : Kiranpal Singh Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Jitendra Singh Counsel for Respondent : G.A Petitioner : Shamim Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Harish Chandra Counsel for Respondent : G.A 23. Case : CRIMINAL MISC. WRIT PETITION No. 163920 Petitioner : Usha Devi Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Chandra Bhan Singh Chandel Counsel for Respondent : G.A 24. Case : CRIMINAL MISC. WRIT PETITION No. 158020 Petitioner : Sujeet Verma Respondent : State Of U.P. And 6 Others Counsel for Petitioner : Anil Kumar Mishra Counsel for Respondent : G.A 25. Case : CRIMINAL MISC. WRIT PETITION No. 170820 Petitioner : Emon Nir Respondent : State Of U.P. And 4 Others Counsel for Petitioner : Mary PunchaMohd. Kalim Counsel for Respondent : G.A 26. Case : CRIMINAL MISC. WRIT PETITION No. 170820 Petitioner : Asha Devi Respondent : State Of U.P. And 7 Others Counsel for Petitioner : Saurabh Kumar Tiwari Kuldeep Kumar Gupta Counsel for Respondent : G.A 27. Case : CRIMINAL MISC. WRIT PETITION No. 171120 Petitioner : Santram Respondent : State Of U.P. And 7 Others Counsel for Petitioner : Renu Devi Dohre Counsel for Respondent : G.A 28. Case : CRIMINAL MISC. WRIT PETITION No. 171720 Petitioner : Chaturbhuj Lal Srivastava Respondent : State Of U.P. And 8 Others Counsel for Petitioner : Sanjay Kumar Srivastava Counsel for Respondent : G.A 29. Case : CRIMINAL MISC. WRIT PETITION No. 171020 Petitioner : Rajkumar Yadav Respondent : State Of U.P. And 4 Others Counsel for Petitioner : Surendra Singh Counsel for Respondent : G.A 30. Case : CRIMINAL MISC. WRIT PETITION No. 163620 Petitioner : Sri Krishna Verma Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Pankaj Kumar Shukla Counsel for Respondent : G.A 31. Case : CRIMINAL MISC. WRIT PETITION No. 163620 Petitioner : SaritaWhether the jurisdictional Magistrate has power to direct the police authority concerned for fair and proper investigation b) Whether the petitioners are justified to file writ petitions under Article 226 of the Constitution of India without approaching the concerned Magistrate under Section 156(3) of the Code of Criminal Procedure 1973 for fair and proper 3. Learned counsel for the petitioners submitted that an important facet of the rule of law is that in criminal justice system investigation into the crime should be fair in accordance with law and should not be tainted Therefore if the investigating authority is not fairly and properly investigating into crime then this court has power to issue appropriate directions under Article 226 of the Constitution of India. They further submitted that once the power is available to this court there is no need to invoke the powers of the concerned Magistrate under Section 156(3) of the Code of Criminal Procedure 1973of the Cr.P.C. to order for fair and proper investigation and therefore the petitioners should have approached the concerned Magistrate for redressal of their grievances Discussion and Findings 5. We have carefully considered the submissions of the learned counsels for the parties 6. Relevant provisions for the purposes of controversy involved in the present writ petitions are Sections 2(c) 2(d) 2(g) 2(h) 36 and 156 Cr.P.C. which are reproduced below “Section 2(c): “cognizable offence” means an offence for which and “cognizable case” means a case in which a police officer may in accordance with the First Schedule or under any other law for the time being in force arrest without warrant Section 2(d): “complaint” means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but does not include a police report Section 2(g): “inquiry” means every inquiry other than a trial conducted under this Code by a Magistrate or Court Section 2(h): “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any personwho is authorised by a Magistrate in this behalf Section 36: Powers of superior officers of police. Police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station Section 156. Police officer’s power to investigate cognizable case. 1) Any officer in charge of a police station may without the order of a Magistrate investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII 2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to 3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.” Fair Investigation Rule of Law 7. The criminal justice system mandates that any investigation into the crime should be fair in accordance with law and should not be tainted. It is equally important that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping punitive course of law. These are important facets of the rule of law. Breach of rule of law amounts to negation of equality under Article 14 of the Constitution of India. Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must be right just and fair and not arbitrary fanciful or oppressive vide Menka Gandhi vs. Union of India1and Vinubhai Haribhai Malviya and others vs. State of Gujrat and another2 8 SCC 682 AIR 1997 SC 95 large and therefore cannot be alienated from each other. A fair trial includes fair investigation as reflected from Articles 20 and 21 of the Constitution of India. If the investigation is neither effective nor purposeful nor objective nor fair the courts may if considered necessary may order fair investigation further investigation or reinvestigation as the case may be to discover the truth so as to prevent miscarriage of justice. However no hard and fast rules as such can be prescribed by way of uniform and universal invocation and decision shall depend upon facts and circumstances of each case 8. Fair and proper investigation is the primary duty of the investigating officer. In every civilized society the police force is invested with powers of investigation of a crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Proper result must be obtained by recourse to proper means otherwise it would be an invitation to anarchy vide Rampal Pithwa Rahidas vs. State of Maharastra5Menka Gandhi Hussainara Khatoonvs. State of Bihar8 Abdul Rehman Antulay vs R.S. Nayak9 and P. Ramchandra Rao vs. State of Karnatka10 1994 Suppl.SCC 73 12 SCC 421 16 SCC 521 1 SCC 81 1 SCC 225 10 4 SCC 578 10. For the purposes of investigation offences are divided into two categories “cognizable” and “non cognizable”. When information of a cognizable offence is received or such commission is suspected the proper police officer has the authority to enter in the investigation of the same but where the information relates to a non cognizable offence he shall not investigate it without the order of the competent Magistrate. Investigation includes all the proceedings under the Cr.P.C. for the collection of evidence conducted by a police officer or by any person other than a Magistrateproceeding to spot ascertainment of the facts and circumstances of the case discovery and arrest of the suspected offender collection of evidence relating to the commission of the offence and formation of opinion as to whether on the material collected therein to place the accused before a Magistrate for trial and if so to take necessary steps for the same by filing a chargesheet under Section 173 Cr.P.C. vide H.N. Rishbud vs. State of Delhi11. Remedy for Proper Investigation: 11. Section 156(1) confers power upon any officer in charge of a police station to investigate any cognizable case. Section 156(3) provides for a cheque by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that 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 12. In Sakiri Vasu vs. State of U.P. and others12Hon’ble Supreme Court considered Section 156(3) Cr.P.C. and after referring to its earlier decisions in Mohd. Yousuf vs. Smt. Afaaq Jahan13Dilawar Singh vs. State of Delhi14State of Bihar vs. A.C. Saldana15and also refering to its judgments on the point of “doctrine of implied powers” in Union of India vs. Paras Laminates Ltd.16 I.T.O. vs. Mohd. Kunhi17 Reserve Bank of India vs. Peerless General Finance and Investment Company Ltd18 Chief 11 AIR 1955 SC 196 12 2 SCC 409 13 1 SCC 627 14 JT 2007SC 585 15 AIR 1980 SC 326 16 4 SCC 453 17 AIR 1969 SC 430 18 1 SCC 642 Executive Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu19 J.K. Synthetics Ltd. vs. Collector of Central Excise20 State of Karnataka vs. Vishwabharati House Building Co op Society21 held as under “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 156Cr.P.C. before the learned Magistrate concerned. If such 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 proper 12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. this Court observed: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 Delhi12 SCC 641SCC 23 20 6 SCC 92 21 2003SCC 412 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 14. Section 156states “156(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” The words “as abovementioned” 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 Saldanna1 SCC 554Cr.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 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 200Cr.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 29. In Union of India vs. Prakash P. Hinduja and another6 SCC 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 samehas been reiterated by Hon’ble Supreme Court in Sudhir Bhaskar Rao Tambe vs. Hemant Yaswant Dhage22 and Vinay Tyagi vs Irshad Ali23Hon’ble Supreme Court held as under “43. At this stage we may also state another well settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct ‘further investigation’ ‘fresh’ or ‘de novo’ and even ‘reinvestigation’. ‘Fresh’ ‘de novo’ and ‘reinvestigation’ are synonymous 22 6 SCC 277 23 5 SCC 762 expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another provided the ends of justice so demand such action. Of course it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection 44. We have deliberated at some length on the issue that the powers of the High Court under Section 482 of the Code do not control or limit directly or impliedly the width of the power of Magistrate under Section 228 of the Code. Wherever a charge sheet has been submitted to the Court even this Court ordinarily would not reopen the investigation especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand it is always open to the Court to hand over the investigation to a specialised agency. These principles have been reiterated with approval in the judgments of this Court in the case of Disha v. State of Gujarat Ors.13 SCC 337]. Vineet Narain v. Union of India1 SCC 226] Union of India v. Sushil Kumar Modi SCC 500 and Rubabbuddin Sheikh v. State of Gujarat2 SCC 200 48. What ultimately is the aim or significance of the expression ‘fair and proper investigation’ in criminal jurisprudence It has a twin purpose Firstly the investigation must be unbiased honest just and in accordance with law secondly the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied there will be the least requirement for the court of law to interfere with the investigation much less quash the same or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair tainted investigation or cases of false implication. Thus it is inevitable for a court of law to pass a specific order as to the fate of the investigation which in its opinion is unfair tainted and in violation of the settled principles of investigative canons.” 14. In the case of Vinubhai Haribhai Malviya and others vs. State of Gujrat and another24Hon’ble Supreme Court held as under “23. It is thus clear that the Magistrate’s power under Section 156(3) of the CrPC is very wide for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police which such Magistrate is to supervise Article 21 of the Constitution of India mandates that all powers necessary which may also be incidental or implied are available to the Magistrate to ensure a proper investigation which without doubt would include the 24 AIR 2019 SC 5233 ordering of further investigation after a report is received by him under Section 173(2) and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed even textually the “investigation” referred to in Section 156(1) of the CrPC would as per the definition of “investigation” under Section 2(h) include all proceedings for collection of evidence conducted by a police officer which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC.” 15. In the case of Sudhir Bhaskar Rao Tambe (paras 2 3 and 4) Hon’ble Supreme Court following the judgment in the case of Sakiri Vasuheld that if a person has a grievance that his FIR 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 not to go to the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned 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 FIR 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. Thus the law laid down by Hon’ble Supreme Court is that after registration of the First Information Report if proper investigation is not being done by the investigating officer then informant may approach the magistrate concerned under Section 156(3) Cr.P.C. so that proper investigation is done. A three judges bench of Hon’ble Supreme Court in the case of M. Subramaniam and others vs S. Janki and others quoted with approval the law laid down by two judges bench in the case of Sakiri Vasuand Sudhir Bhaskar and thus it affirmed the principles laid down in those judgments that even if a first information report has already been registered on an application under Section 156(3) Cr.P.C. the Magistrate can direct proper investigation and writ petition for this purpose should not generally be entertained by the High Court in view of the remedy available before the Magistrate under Section 156(3) Cr.P.C 16. In a recent judgment of this court dated 08.01.2021 in Criminal Misc. Writ Petition No.162820a Division Bench of this court has held as under “In the case of M. Subramanian and another Vs. Janki and another Criminal Appeal No.1011) decided on 20.03.2020 the Hon ble Supreme Court observed that if FIR has already been registered then the Magistrate can direct proper investigation to be done which includes his discretion if he deems it necessary recommending change of the investigation officer so that a proper investigation is done in the matter The High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation and 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. Hon ble Supreme Court further held that the complainant must avail of his alternative remedy to approach the Magistrate concerned 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 investigation in the matter and he can also recommend to the Senior Superintendent of Police Superintendent of Police concerned a change of the investigating officer so that a proper investigation is done The Magistrate can also monitor the investigation though he cannot himself investigate. The observations made by the Hon ble Supreme Court are also in reiteration of the principle laid down by the Hon ble Supreme Court in the case of SUDHIR BHASKARRAO TAMBE VS. HEMANT YASHWANT DHAGE AND OTHERS 2016(6) SCC 277 and in the case of SAKIRI VASU VS. STATE OF UTTAR PRADESH AND OTHERS 2008(2) SCC 409 In view of the aforesaid we do not find any good reason to entertain the writ petition. Consequently considering the submissions of the learned counsel for the parties this writ petition is dismissed leaving it open to the petitioner to avail such remedy as may be available to him under law.” 17. In view of the discussions made above we hold that if an informant petitioner is aggrieved that proper fair investigation is not being done by the investigating officer then he she may approach the concerned Magistrate by moving an application under Section 156(3 Cr.P.C. for appropriate orders instead of invoking writ jurisdiction under Article 226 of the Constitution of India 18. For all the reasons aforestated all the writ petitions are dismissed leaving it open to the petitioners to approach the Magistrate concerned under Section 156(3) of Cr.P.C. for fair and proper investigation Order Date : 27.01.2021

Summary: In case an informant feels that proper or fair investigation is not being carried out by the investigating officer, the aggrieved can then approach a Magistrate for relief under Section 156(3) of the Code of Criminal Procedure (Crpc), instead of invoking writ jurisdiction of the High Court under Article 226 of the Constitution. The Allahabad High Court presided over by J. S.P. Kesarwani &amp; J. S. Ahmed laid down this ratio in the case of Ajay Kumar &amp; Ors. Vs. State of U.P. &amp; Ors, [Criminal Miscellaneous Writ Petition No. 15692 of 2020]. The Court in this case has clubbed several petitions. The Petitions were filed under Article 226 of the Constitution with a prayer to direct the Police authorities to carry out the fair and proper investigation in various criminal cases. The Petitioner argued that they have a right to seek directions from the High Court under Article 226 of the Constitution if the investigating authority/agency is not functioning properly. They further, argued that there was no need to invoke Section 156(3) of the Crpc as the High Court has the power to pass such directions. The High Court in this case had two questions before it that is whether the concerned Magistrate has the power to direct the police authorities to carry out fair and proper investigation. Secondly, whether the petitioners can directly approach the High Court under Article 226 of the Constitution without exhausting the remedy under Section 156(3) of the Crpc. The Court in this case was of the opinion that every investigation has to be conducted in a fair manner and in accordance with the law. The Court further stated that “Fair and proper investigation is the primary duty of the investigating officer. In every civilized society, the police force is invested with powers of investigation of a crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure a conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. The proper result must be obtained by recourse to proper means, otherwise, it would be an invitation to anarchy.” The Court emphasized the importance of fair investigation stated that “It is equally important that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders escaping a punitive course of law. These are important facets of the rule of law. Breach of rule of law amounts to negation of equality under Article 14 of the Constitution of India.” The Court also stated that such fair trial and scope of Article 21 was of the opinion that “A fair trial includes fair investigation as reflected from Articles 20 and 21 of the Constitution of India. If the investigation is neither effective nor purposeful nor objective nor fair, the courts may if considered necessary, may order a fair investigation, further investigation or reinvestigation as the case may be to discover the truth so as to prevent miscarriage of justice.” The Court also relied upon landmark judgments of Maneka Gandhi Vs UOI and Subramanian Swamy vs. CBI. The Court lastly stated that the proper remedy for proper and fair investigation of trials was under Section 156(3) of Crpc and not Article 226 of the Constitution. Reliance was placed on the landmark judgment of Vinubhai Haribhai Malviya v. State, where the Supreme Court was of the opinion that, “Magistrate’s power under Section 156(3) of the Crpc is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a ‘proper investigation takes place in the sense of a fair and just investigation by the police – which such Magistrate is to supervise – Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the Ordering of further investigation.” Click here to read the judgement