Palo Devi vs State of Punjab and others

This petition has been filed under Section 482 Cr.P.C. with a

prayer for issuance of directions to respondent No.2 to look into the

representation dated 3.11.2017 (Annexure-P.1) submitted by the petitioner

and take action on it as per law.

I have heard learned counsel for the petitioner 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."

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.