Kulwinder Singh vs State of Punjab and others

This petition has been filed under Section 482 Cr.P.C. for issuance of appropriate directions to respondents No.2 and 3 to take appropriate action in

the matter for registering criminal case against respondents No.4 and 5 under Section 420 IPC or any other appropriate order/direction.

Notice of motion has been issued in this case.

Mr. Pawan Sharda, learned Senior Deputy Advocate General, Punjab has appeared on behalf of the respondent-State and Mr. G.S. Sirphikhi, learned

Advocate has appeared for the complainant and contested this petition.

I have heard learned counsel for the parties as well as learned State counsel and have gone through the record.

From the record, I find that the petitioner is seeking for registration of case against private respondents. In Sakiri Vasu v. State of U.P. and others,

2008 (1) R.C.R. (Cr.) 392, the Hon'ble Supreme Court has 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 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.

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.

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.

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 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).

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 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 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 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 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

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.â€​

The law laid down in this judgment has also been relied upon by the Hon'ble Supreme Court in T.C. Thangaraj v. V. Engammal and others, 2011 (3)

R.C.R. (Cr.) 751.

Therefore, in view of the law laid down in Sakiri Vasu v. State of U.P. and others (supra) T.C. Thangaraj v. V. Engammal and others (supra), this

petition under Section 482 Cr.P.C. is not liable to be entertained and the same is disposed of with liberty to the petitioner to avail the alternative

remedy before the Magistrate etc. as held in these cases.