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Judgment
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Heard Mr. P.J. Saikia, learned counsel for the petitioner; Mr. B. Deuri, learned Junior Government Advocate, Assam for respondent nos. 1 â€" 4;
and Mr. P.K. Barman, learned counsel for respondent no. 5.
The petitioners have projected that the petitioner no. 1 purchased a plot of land measuring 4 Bighas, covered by Dag No. 489 & K.P. Patta No. 98,
situated at Village â€" North Dimoria, Sonapur Revenue Circle, Mouza â€" Dimoria, District - Kamrup (M), Guwahati (hereinafter referred to as
‘the subject-plot’, for easy reference) from one Daya Ram Deuri, the father of the respondent no. 5 vide a Sale Deed dated 10.12.1992. The
possession of the said subject-plot was delivered to the petitioners. It is the further case of the petitioners that they are enjoying peaceful possession of
the subject-plot by paying land revenues regularly. It has been projected that in the year 2014, the respondent no. 5 tried to prevent the petitioners
from cultivating in the subject-plot. It is alleged that on 27.11.2019, the respondent no. 5 started to cut the ripe and ready to harvest paddy cultivated
by the petitioners in the subject-plot forcibly. The petitioner no. 1 had lodged one First Information Report (FIR) in respect of the said incident on
27.11.2019 before the Officer In-Charge, Khetri Police Station against the respondent no. 5. On receipt of the said FIR, a case being Khetri Police
Station Non-FIR Case no. 12/2019 under Sections 145/146/107, Code of Criminal Procedure, 1973 (CrPC) had been registered. After investigation,
the police submitted a report before the Additional District Magistrate, Kamrup (M), Guwahati on 07.12.2019. By the report, it was informed that the
paddy, cut by the respondent no. 5 and his men, were seized and after seizure, the same were kept stored in the field of Dimoria High School. But the
paddy were stolen from the police custody again on 15.12.2019. Suspecting that the respondent no. 5 was behind such theft, the petitioners filed
another FIR before the Officer In-Charge, Khetri Police Station on 16.12.2019. Alleging that despite filing of the FIR dated 16.12.2019 wherein the
petitioner no. 1 had specifically alleged about the involvement of the respondent no. 5 behind the alleged theft of paddy, the Officer In-Charge, Khetri
Police Station had not even registered a case on the basis of the said FIR, not to speak of making an effort to recover the stolen paddy.
The present writ petition has been filed by the petitioners seeking, inter-alia, directions to the respondent authorities, more particularly, the
respondent no. 4 i.e. the Officer In-Charge, Khetri Police Station to act on the FIR dated 16.12.2019 and to recover the paddy stolen from the police
custody and thereafter, to give zimma of the paddy to the petitioners.
From the afore-stated projections in the writ petition, it is evident that after lodging FIR before the Officer In-charge, Khetri Police Station the
petitioners have straight away approached this Court by way of this writ petition under article 226 of the Constitution of India seeking the above
directions. It is found that the Officer In-charge, Khetri Police Station has not acted on the FIR lodged by them on 16.12.2019, the petitioners did not
approach the concerned higher authorities under either Section 36, CrPC or under Section 154(3), CrPC by any application in writing. The petitioners
have not also approached the jurisdictional Magistrate by filing any application under Section 156(3), CrPC by highlighting his grievances in respect of
non-registration of the FIR by the Officer In-Charge of the Police Station and inaction on the part of the police authorities in respect of recovering the
stolen paddy.
In this connection, it would be apposite to refer to the following observations made by the Hon’ble Supreme Court of India in Sakiri Vasu vs.
State of Uttar Pradesh and others, reported in (2008) 2 SCC 409 :
“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 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 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.
The same view was taken by this Court in Dilawar Singh vs. State of Delhi (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) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take
other suitable steps and pass such order order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys
under Section 156(3) CrPC.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. 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.
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. J.A.C. Saldanha (SSC AIR para 19).
In our opinion Section 156(3) CrPC 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 FIR 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) CrPC, 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.
In view of the abovementioned 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 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.
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 concerned police officers, and if that is of
no avail, by approaching the concerned Magistrate under Section 156(3).
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 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?
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.â€
The observations made by the Hon’ble Supreme Court of India in Sakiri Vasu (Supra) have again been reiterated in the subsequent decision in
Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others, reported in (2016) 6 SCC 277 in the following manner :
This Court has held in Sakiri Vasu Vs. State of U.P., 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) CrPC. If such an application
under Section 156(3) CrPC 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 investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu 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 Magistrate concerned under Section 156(3) CrPC 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 monitor the
investigation.
In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside.
The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it
necessary, he can also recommend to the SSP/SP 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 (as investigation is the job of the police). Parties
may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in
the impugned order of the High Court.â€
In view of the fact situation obtaining in the case, as have been projected briefly above, and in the light of the observations of the Hon’ble
Supreme Court of India in Sakiri Vasu (Supra), and Sudhir Baskarrao Tambe (Supra), this writ petition seeking the above directions is not entertained,
reserving the liberty, however, to the petitioners to avail the alternative remedies, firstly, under Section 36, CrPC and Section 154 (3), CrPC before the
police officers concerned and if that is of not to their satisfaction, secondly, by approaching the jurisdictional Magistrate under Section 156(3), CrPC, if
they wish to do so. While not entertaining the writ petition, this Court would like to clarify that this Court has not expressed any opinion on merits and
whether any criminal offence is made out or not.