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Judgment
Vipul M. Pancholi, J
This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed that the respondent-police authority be directed
to register the FIR on the basis of the written complaint dated 7.1.2022 given by the petitioner against the proposed accused for the alleged offences
punishable under Sections 420, 406, 408, 409, 467, 468, 471 and 114 of the Indian Penal Code.
Heard learned advocate for the petitioner and learned APP for the respondent-state.
Learned advocate for the petitioner has referred the averments made in the memo of the petition and thereafter submitted that the petitioner has
given written complaint dated 7.1.2022 before the respondent-police authority, copy of which is placed on record at page no.12 of the compilation.
However, it is contended that till today, the said written complaint has not been registered as FIR and therefore appropriate direction be issued to the
respondent police authority.
On the other hand, learned APP has opposed this petition and submitted that the petitioner has given written complaint on 7.1.2022 and immediately,
within a period of two days, the present petition has been filed with a malafide intention and because of the political rivalry between the parties, the
present petitioner has given this written complaint. It is further submitted that the petitioner is having alternative remedy of filing private complaint
before the concerned Magistrate Court and therefore this Court may not entertain the present petition. Learned APP has placed reliance upon the
order dated 17.12.2020 passed in Special Criminal Application No.6760 of 2020 passed by coordinate Bench of this Court.
Having heard learned advocates for the parties and having gone through the material placed on record, it would emerge that the petitioner has given
a written complaint against the concerned persons to the respondent-Police Inspector on 7.1.2022 and the present petition is filed only within a period
of two days i.e. 10.1.2022. The petitioner has alleged that the respondent-police authority has not registered the FIR immediately, however, as
observed hereinabove, within a period of two days, the present petition is filed, therefore, it cannot be said that there is inaction on the part of the
respondent-police authority and therefore, this Court is not inclined to issue writ of mandamus as prayed for by the petitioner.
At this stage, the observation made by coordinate Bench of this Court in the case of Special Criminal Application No.6760 of 2020 are required to
be kept in view, wherein, in a similar type of case, after considering the decisions rendered by the Hon’ble Supreme Court, the coordinate Bench
of this Court has observed in paragraphs 3 to 7 as under:
“3. At this stage, it would be apposite to incorporate the observations made by the Apex Court in the case of M. Subramaniam v. S. Janki dated
20.03.2020 passed in Criminal Appeal No.102 of 2011. The Apex Court has observed thus;-
“ 5.While it is not possible to accept the contention of the appellants on the question of locus standi, we are inclined to accept the contention that
the High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the
judgment of this Court in Sakiri Vasu v. State Of Uttar Pradesh And Others in which it has been inter alia 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 of
CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC 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 (2008) 2 SCC 409 under Section 156(3) CrPC 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.
Thus in Mohd. Yousuf v. Afaq Jahan this Court observed: (SCC p. 631, para 11)
“11. 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 investigation 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 complainant because that police officer could take further steps
contemplated in Chapter XII of the Code only thereafter.â€
The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT 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(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys
under Section 156(3) CrPC.
Section 156(3) states:“156. (3) 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.
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 reopening
of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha (SCC : 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.
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 for its execution.â€
The said ratio has been followed in Sudhir Bhaskarrao Tambe v.Hemant Yashwant Dhage and Others2, in which it is observed.
“2. This Court has held in Sakiri Vasu v. 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 the 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 (2016) 6 SCC 277 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.
In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation
into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers
with the police pursuant to the complaint dated 18.09.2008 and the police on being satisfied that a criminal offence is made out would have liberty to
register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary.
Equally, it will be open to the appellants and others to take steps to protect their interest. â€
While referring to the judgment of Sudhir Bhaskarrao Tambe (supra), it is observed that if the High Courts entertain such writ petitions seeking
registration of FIR, then they will be flooded with such writ petitions and will not be able to do any other work, except dealing with them. It is
specifically held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under section 156(3) of Cr.P.C and if
he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the FIR and also ensure a proper investigation in the matter. While
approving the aforenoted view, the Supreme Court has set aside the direction of the High Court for registration of the FIR and has directed the
respondent thereto to approach the court of Magistrate if deem appropriate and necessary. Thus, the law on the registration of FIR is well settled and
has been reiterated in the recent judgment of the Supreme Court as noted hereinabove.
In the present case, the petitioner has not approached the concerned Magistrate and has directly approached this Court for the aforesaid prayer.
Under the circumstances and in light of the observations made by the Apex Court, the writ petition is rejected since the petitioner has the remedy to
approach the approach the concerned Magistrate under section 156(3) of the Cr.PC.
7.It is noticed by this Court that various applications seeking registration of FIR are being filed before this Court directly without approaching the
concerned Magistrate under Section 156(3) of the Code. Such applications which are directly filed are in direct conflict with the observations of the
Apex Court. The Apex Court has expressed its concern with regard to filing of such applications/petitions directly before the High Court since filing of
such petitions/applications are an unnecessary burden.â€
Keeping in view the aforesaid order passed by this Court, if the facts of the present case as observed hereinabove are examined, this Court is of
the view that when the petitioner has remedy of approaching the concerned Magistrate Court for passing the order under Section 156(3) of the Code,
the present petition deserves to be dismissed. Accordingly, this petition is dismissed.