P. Naganathan vs Deputy Superintendent of Police, The Inspector of Police, District Crime Branch and Sub Inspector of Police

K. Chandru, J.—The petitioner is an Advocate at Baradur Village, Chidambaram Taluk. He filed the present writ petition, seeking for a

direction, directing the first respondent Deputy Superintendent of Police, District Crime Branch to implement the orders of the learned Judicial

Magistrate No. II, Chidambaram vide letter dated 24.12.2008 in Letter No. 2651/2008 and to register a case.

The petitioner filed an objection petition before the Judicial Magistrate No. II, Chidambaram on 20.02.2006 which was examined by the

learned Magistrate under 156(3) Cr.Pc. Thereafter, a letter was forwarded by the learned Magistrate to the first respondent Deputy

Superintendent of Police, Cuddalore either to investigate the case by himself or by any person authorised by him and to submit a report within two

months. But it was stated that no F.I.R was registered and with an endorsement ''U.N'', the file was closed and R.C.S.1/2007 was served on the

petitioner. When the petitioner once again reminded the learned Magistrate, the learned Magistrate forwarded another letter to the first respondent

asking him to register a F.I.R and forward the objection petition filed by the petitioner and all the documents enclosed along with the objection

petition to that Court. When that was was not done, the petitioner moved this Court.

It must be stated that the petitioner himself is a practicing Advocate and he must be aware of the decision of the Court in this regard. The

Supreme Court while considering the role of the Magistrate vis a vis the investigation by the police u/s 156 vide its judgment in Sakiri Vasu Vs.

State of U.P. and Others, deprecated the practice of high Court entertaining the writ petition in such circumstances. The Supreme Court in

paragraph 28 of the said judgment held that though an alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if

there is any alternative remedy, the High Court should not ordinarily interfere. In the very same judgment in paragraphs 11, 15 to 18, it was

observed as follows:

In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR u/s 154 CrPC, then he

can approach the Superintendent of Police u/s 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 u/s 156(3) CrPC before the learned Magistrate concerned. If such an application u/s 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.

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 u/s 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.

In the light of the above, the writ petition stands dismissed. It is open to the petitioner to work out his right by making appropriate application

before the learned magistrate. No costs.