SAKIRIVASU

STATE OF U.P. AND ORS.

DECEMBER 7, 2007

[A.K. MATHUR AND MARKANDEY KAT JU, JJ.)

Constitution of India, 1950-Article 226-Writ Petition-Seeking investigation by CBI-Of a case, investigation whereof already C conducted by railway Police and Army authorities-Maintainability of-Held: Not maintainable-An aggrieved person has no right to claim investigation of a case by any particular agency of his choice- He can only claim proper investigation-Alternative remedy of approachingu!ss. 36, 154 (3), 156 (3) and 200Cr. P.C. is available to D the person, if his FIR is not registered by the police-Availability of alternative remedy is not an absolute bar to a writ petition-But if available, High Court should not ordinarily interfere-Supreme Court and High Court also have power under Article 136 or Article 226 of the Constitution to order investigation by the CBI-But that shoul3 E be done only in rare and exceptional case-Code of Criminal Procedure, 1973-ss. 36, 154(3),156(3), 200and482-Constitution of India, 1950-Article 136.

Code of Criminal Procedure, 1973-s. 156 (3)-Power under- Of Magistrate-Scope of-Discussed

Doctrines/Principles-Doctrine of implied power.

The son of the appellant was an Officer in the Indian Army. His dead body was found at Mathura Railway Station. G.R.P. investigated the matter and gave its report stating that the death G was caused due to accident or suicide. Army officials held a Court oflnquiry. It was concluded therein that the deceased had committed suicide at the railway track. The appellant made a representation to the Chief of the Army Staff alleging that it was a case of murder .

llOO H

SAKIRI V ASU v. STATE 1101

--. and not suicide. As a result another Court of Inquiry was held. A Wherein it was concluded that it was a case of suicide.

The appellant then filed a writ petition, seeking direction that the matter be ordered to be investigated the Central Bureau of Investigation. The petition was dismissed. Hence the present appeal.

\ Dismissing the appeal, the Court

HELD: 1.1. In the instant case, 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 c because he had discovered some corruption, cannot 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. An aggrieved person can only claim that the offence ,

he alleges be investigated properly, but he has no rightto claim that it be investigated by any particular agency of his choice.

D [Paras 34and10] [1106-A, B; 1111-G; 1112-A]

CBI and Anr. v. Rajesh Gandhi and Anr., (1997) Cr.L.J 63, relied on.

1.2. If a person has a grievance that his FIR has not been E 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 F Section 156(3) Cr.P.C. instead ofrushing 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. [Para 26] [1109-G; 1110-A]

2.1. If an application under Section 156 (3) is filed before the G

-f Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, iri a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor H

A the investigation to ensure a proper investigation. Section 156(3) provides for a .check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C.

[Paras 11and15) [1106-C, D; 1107-E)

Mohd. Yousuf v. Smt. Afaq Jahan and Anr., JT (2006) 1 SC 10; B Dilawar Singhv.State of Delhi, JT (2007) 10 SC 585; CB!v.State of RajasthanandAnr., (2001) 3 SCC 333; R.P. Kapurv. S.P. Singh, AIR

(1961) SC 1117; and State o/Biharv.A.C. Saldanna, AIR(1980) SC 326, relied on. c 2.2. It is clarified that even if an FIR has been registered and 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 D and take other suitable steps and pass other order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. The words 'as abovementioned' occurring in s.190 Cr.P.C. obviously refer to Section 156 (1 ), which contemplates investigation by the officer in E charge of the Police Station. 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). [Paras 13, 14 and 27) (1107-B, C, D, E; 1110-B, CJ

F Union of India v. Prakash P. Hinduja and Anr., distinguished.

2.3. The power vested 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 G the case even after submission of his report under Section 173(8).

Hence the Magistrate can order re-opening of the investigation even after the police submits the final report. [Para 16] (1107-F, G[

State ofBihar v. A.C. Saldanna, AIR (1980) SC 326, relied on.

SAKIRIVASUv. STATE 1103

2.4. It is well-settled that when a power is given to an authority A to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. 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. The reason for the rule (doctrine ofimplied power) is quite B apparent. Many matters of minor details are omitted from legislation. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective.

[Paras 18, 19 and 21] [1108-B, C, D, E, F] c

ITO, Cannanore v. MK. Mohammad Kunhi, AIR (1969) SC 430; Union of India v. Paras Laminates, AIR (1991) SC 696, Reserve Bank of India v. Peerless General Finance and Investment Company Ltd; AIR (1996) SC 646; Chief Executive Officer & Vice Chairman Gujarat MaritimeBoardv.HajiDaudHajiHarunAbu, [1996] ll SCC23, JK. D Synthetics Ltd. v. Collector of Central Excise, AIR (1996) SC 3527, State of Karnataka v. Vishwabharati House Building Co-op Society, 2003 (2) SCC 412 and Savitri v. Govind Singh Rawat, AIR (1986) SC 984, relied on.

Statutory Construction (3rd Edition) by Crawford, referred to.

2.5. Although Section 156(3) is very briefly worded, it is wide enough to include all such incidental powers in a Magistrate which are necessary for ensuring a proper investigation. There is an implied

~ power in the Magistrate under Section 156(3) Cr.P.C. to order F registration of a criminal offence and/or to direct the officer in charge ofthe 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) G Cr.P .C., they are implied in the above provision.

[Paras 17 and 24] [1108-A, B; 1109-C, D]

3. 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 H

A remedy the High Court should not ordinarily interfere. r- [Para 28) [1110-E)

4. No doubt the Magistrate cannot order investigation by the CBI but this Court or the High Court has power under Article 136 or Article 226, as the case may be, to order investigation by the CBI.

B 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.

[Para31) [1111-C, D] c CBI v. State of Rajasthan and Anr., (2001) 3 SCC 333; Secretary, Minor Irrigation and Rural Engineering Services UP. and Ors. v.

Sahngoo Ram Arya and Anr., [2002) 5 SCC 521, relied on.

5. It is not clear whether the report by G.R.P. Mathura was accepted by the Magistrate or not. If the report has been accepted D by the Magistrate and no appeaVrevision was filed against the order of the 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.

E (Para 35) [1112-A, B, CJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1685 of2007.

From the final Judgment and Order dated 13.7.2007 of the High F Court of Judicature at Allahabad in Cr!. M.W.P. No. 9308/2007. '-

Dinesh Kumar Garg for the Appellant,.

The Judgment of the Court was delivered by

G MARKANDEY KAT JU, 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. 9308 of2007.

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 A 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 oflnquiry B and both times submitted the report that the deceased Major S.

Ravishankar had committed suicide at the railway track at Mathura junction. The Court oflnquiry relied on the statement of the Sahayak (domestic servant) Pradeep Kumar who made a statement that "deceased Major Ravishankar never looked cheerful; he used to sit on a chair in the verandah gazing at the roof with blank eyes and deeply involved in some c thoughts and used to remain oblivious of the surroundings". The Court of Inquiry also relied on the deposition of the main eye-witness, gangman Roop Singh, who stated that Major Ravishankar was hit by a goods train that came from Delhi.

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6. The appellant who is the father of Major Ravishankar alleged that in fact it was a case of murder and not suicide. He alleged that in the Mathura unit of the Army there was rampant corruption about which Major Ravishankar came to know and he made oral complaints about it to his superiors and also to his father. According to the appellant, it was E for this reason that his son was murdered.

7. The first Court oflnquiry was held by the Army which gave its report in September, 2003 stating that it was a case of suicide. The appellant was not satisfied with the findings of this Court of Inquiry and -' ' hence on 22.4.2004 he made a representation to the then Chief of the F Army Staff, General N.C. Vij, as a result of which another Court of Inquiry was held. However, the second Court of Inquiry came to the same conclusion as that of the first inquiry namely, that it was a case of suicide.

8. Aggrieved, a writ petition was filed in the High Court which was G >

dismissed by the impugned judgment. Hence this appeal.

9. The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigation (in short 'CBI'). Since his prayer was rejected by the High Court, hence this appeal by way of special leave.

10. It has been held by this Court in CBI & Anr. v. Rajesh Gandhi r and Anr., 1997 Cr.L.J 63 (vide para 8) that 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 B 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 ifthat does not C 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 156

(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can D 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.

12. Thus in Mohd. Yousuf v. Smt. Afaq Jahan & Anr., JT (2006)

l SC l 0, this Court observed:

"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 A 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 v. B -\ State of Delhi, JT (2007) 10 SC 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 ifthe Magistrate is satisfied c he can order a proper investigation and take other suitable steps and pass such other 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 156 (3) states: D

- -·{

"Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

The words 'as abovementioned' obviously refer to Section 156 (1 ), which 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 F 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 G > order re-opening of the investigation even after the police submits the final report, vide State of Bihar v. A. C. Saldanna, AIR (1980) SC 326 (para 19).

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include H

A 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 .LR. 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 B 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 C 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 rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his 'Statutory Construction' (3rd edn. page 267):-

"If these details could not be inserted by implication, the drafting E oflegislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission".

20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily F implied is as much part of the statute as if it were specifically written therein.

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 v. MK. Mohammad Kunhi, AIR ( 1969) SC 4 30, this Court held that the income tax appellate tribunal has G 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 v. Paras Laminates, AIR (1991) H SC 696, Reserve Bank of India v. Peerless General Finance and

--·~

Investment Company Ltd., AIR (1996) SC 646 (at p. 656), Chief A Executive Officer & Vice Chairman Gujarat Maritime Board v. Haji Daud Haji Harun Abu, [1996] 11 SCC 23, JK. Synthetics Ltd. v.

Collector of Central Excise, AIR (1996) SC 3527 and State of Karnataka v. Vishwabharati House Building Co-op Society, [2003] 2 SCC 412 (at p. 432) etc.

23. In Savitri v. Govind Singh Rawat, AIR (1986) SC 984 this Court held that the power conferred on the Magistrate under Section

125Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period.

24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is 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 D 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 F 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).

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 H

A 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 B 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 C 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 D 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 200 Cr.P.C. and not by filing a writ petition or a

E 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 v. Prakash P. Hinduja and Anr., [2003] 6 F 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 G 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).

30. It may be further mentioned that in view of Section 36 Cr.P.C.

, ...

SAKIRI V ASU v. STATE [KATJU, J.] 1111

-1 if a person is aggrieved that a proper investigation has not been made by A the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vi de CBI v. State of Rajasthan and Anr., [2001] 3 SCC 333 (vide para 11), R.P. Kapur v. B

+ 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 v. A.C. Saldanna (supra).

31. No doubt the Magistrate cannot order investigation by the CBI c

vide CBI v. State of Rajasthan and Anr., (Supra), but 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 D number of cases and would find it impossible to properly investigate all

. ' of them.

32. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts oflnquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High E Court was justified in rejecting the prayer for a CBI inquiry.

33. In Secretary, Minor Irrigation & Rural Engineering Services UP. and Ors. v. Sahngoo Ram Arya and Anr., [2002] 5 SCC 521 (vide para 6) , this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised ifthe High Court F 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 H

A 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 B 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, ifthe 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 C 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, D who shall circulate a copy of this Judgment to all the Hon'ble Judges of the High Courts.

K.K.T.

Appeal dismissed.