Geetabai And Ors vs State Of M.P. And Other

The petitioners have filed the present petition seeking direction to the Respondents to conclude the fair investigation without unnecessary delay.

[2] According to the petitioners they are low paid workers. The petitioner No.1 entered into an agreement of sell with the Respondent No.5 in respect of sale of land measuring 600 sq.ft. for a consideration of Rs.1,50,000-00. The petitioner No.1 has already paid the amount of Rs.1,45,000-00 at the time of execution of the agreement. Similarly on 08.03.2017 the Respondent No.4 also executed agreement to sell in favour of the petitioner No.3 for sale of 600 sq.ft. land in Rs.3,25,000-00 and out of which petitioner No.3 has paid Rs.1,60,000-00. Thereafter they did not execute any sale-deed in the favour of the petitioners. On 06.08.2016 Respondent No.4 gave a cheque to the petitioner No.2 for returning the amount of Rs.1,50,000-00. The said cheque was presented but same has been returned unpaid by the Bank. Feeling cheated by Respondent Nos.4 and 5, the petitioners lodged an FIR on 03.12.2016 against them which has been registered under Sections 420, 467 and 468 of IPC. According to the petitioners, there is no progress in the investigation after lapse of two and half years. Hence, they approached this Court by way of writ petition.

[3] The Apex Court in the case of Sakiri Vasu v/s State of Uttar Pradesh [(2008) 2 SCC 409] has held that if a person has a grievance that the police station is not registering his FIR under Section 154 of Cr.P.C., then he can approach the Superintendent of Police and even if that does not yield any satisfactory result or that even after registering the FIR no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) of Cr.P.C. before the learned Magistrate concerned. If such application under Section 156 (3) of Cr.P.C. is filed before the Magistrate, he can direct the FIR to be registered and also can direct a proper investigation to be made in a case where the aggrieved person, no proper investigation was made. Para 11, 12, 13, 14, 15, 16 and 17 of the judgment are reproduced below :-

"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.

Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed:

"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 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."

The same view was taken by this Court in Dilawar Singh vs. 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 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 156(3) Cr.P.C.

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 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.

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. Saldanna AIR 1980 SC 326 (para 19).

In our opinion Section 156(3) Cr.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."

[4] In view of the above, the petitioners are having efficacious remedy to approach the Magistrate under Section 156 (3) of Cr.P.C.

[5] Hence, the petition is disposed of with the aforesaid liberty.