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Judgment
Petitioners have filed the present petition seeking a fair and impartial investigation in crime No.328/2020 registered against them at police station Khachrod, district Ujjain.
Complainant Smt. Shamshad Bee w/o Shahid Khan lodged an FIR in the police station Khachrod on 12.07.2020 disclosing that she is a resident of Begumbag Colony, Ujjain and her father Usman Khan and brother Azaz Khan are having old enmity with Chhunnulala s/o Sadiqlala R/o Juna Shakar, Khachrod. On 12.07.2020 near about 10.30 A.M when she, along with her father and brother was working in the agricultural field, Chhunnulala, Samadlala Pathan and Chhangalala along with 8-10 unknown persons came there and started abusing her and her father. When she objected Chhunnulala and Samadlala fired gunshots on her and Chhangalala and his associates assaulted her by iron rods intending to kill her. She sustained injuries and thereafter they ran away from the spot with a warning to come back again. On the basis of the aforesaid disclosure, an FIR at Crime No.328/2020 for the offence punishable under sections 307, 34 of the IPC and under section 25/27 of the Arms Act has been registered against the present petitioners and 8-10 unknown persons. According to the petitioners they have been falsely implicated in the case in order to encash the old enmities, The petitioner No.1 left Khachrod, district Ujjain by his vehicle bearing registration No.MP-43 CA 4132 on 11.07.2020 at around 8.30 P.M and reached Sukat, Tahsil Ramgajmandi, Distt. Kota (Rajasthan) at his sister's place. On the way, he got diesel in the vehicle from the fuel station situated at Sukat, and paid the amount by his debit card. He also withdrew some cash amount from ATM of the Central Bank of India situated in Sukat. Similarly, petitioner No.2 was also not in the town at the time of the alleged incident as he went to Sehore on 11.07.2020 and he is having toll receipts and the payment receipts of the restaurants. The petitioners have submitted a representation to the SHO, police station, Khachrod seeking consideration of all this evidence to drop the investigation against them and when no action was taken they have filed the present petition.
Respondents have filed the return by submitting that Smt.Shamshad Bee has lodged an FIR disclosing the commission of the cognizable offence, therefore, in view of the judgment of the Apex Court in the case of Lalita Kumari vs Govt. of U.P. & Ors (2014) 2 SCC 1, police is bound to record an FIR against the accused. Since Smt.Shamshad Bee sustained injuries on her legs, therefore, she was medically examined. The investigation is in progress and co-accused Samad lala is arrested along with Imran s/o Gaffar, Mohd. Khurshid s/o Mohd. Khalil, Sohail s/o Salim Mev, Sajid s/o Guddu, Parvez Shah s/o Sadik Shah. Their memorandum of statements under section 27 of the Evidence Act have also been recorded. The petitioners are absconding, therefore, reward money has also been declared. As per the medical report of Yusuf Khan, Usman Khan and Shamshad Bee sustained grievous injuries by lethal weapons. The petitioners are having past criminal antecedents and as many as 13 criminal cases are registered against petitioner No.1 and he was externed for a period of 6 months under the Rajya Suraksha Adhiniyam. Likewise, petitioner No.2 is also having criminal antecedents. The police are doing the impartial investigation in the matter, therefore, at this stage, no interference is called for in this petition.
It is correct that the accused as well as the complainant both have a right of fair investigation. Once the informant discloses the commission of cognizable offence then the police are bound to register an FIR under section 156 of the Cr.P.C as held by the Apex Court in the case of Lalita Kumari (supra). The complainant Smt.Shamshad Bee lodged an FIR and disclosed the name of the present petitioners. All three members have sustained injuries as per the medical report. The matter is under investigation. At present, there is no material on record before this Court to conclude that the respondents are not conducting a fair and impartial investigation. After conducting the investigation, the final report would be filed before the competent Magistrate. If there is any lacuna in the investigation, the aggrieved party is free to appear in a trial before the Magistrate who is competent to consider as per law. The petitioner is having the remedy under the provisions of Code of Criminal Procedure, 1973 and for which this petition is not liable to be entertained.
The Apex court in the case of Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 has held as under:-
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.
Again the Apex court in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277, has held as under:-
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 above, this petition has no merit and is accordingly dismissed.