Raj Kumar Das And 2 Ors. vs State Of Assam And 2 Ors

The Court proceedings have been conducted through online court proceeding services.

Heard Mr. P. Buragohain, learned counsel for the petitioners and Mr. R. Talukdar, learned Junior Government Advocate, Assam for all the

respondents.

The petitioners, 3 (three) in nos., have projected that during the period from 2012 to 2013, two companies viz. (i) Hollyhock Wealth Advisory India

Limited, and (ii) Fruition Mutual Benefit Financial Company Limited, set up their office in Kharupetia town in the district of Darrang, Assam. After

setting up the office, the two companies started their business of collecting money from a large number of persons as deposits under various schemes,

allegedly formulated by the said two companies. In order to dupe the gullible persons, the companies showed some documents allegedly bearing the

seal of Reserve Bank of India apart from Memorandum of Association, Certificate of Incorporation, Certificate for Commencement of Business, etc.

In that manner, the two companies managed to collect a huge amount of money to the tune of crores. After collecting such huge amount, the two

companies closed their office set up in Kharupetia town suddenly in the year 2015. When the petitioners tried to contact the officials of the two

companies, it was explained to them by the officials of the two companies that because of certain difficulties the office had to be closed down. It was

assured that the office would be re-opened soon and the maturity amounts of the persons who deposited their hardearned money to them, would be

paid. When it was found that the office at Kharupetia would never be re-opened by the two companies as it was closed for good and there was no

likelihood of returning the monies of the gullible depositors, the petitioners approached this Court by a writ petition, W.P.(C) no. 5353/2016 alleging,

inter-alia, that when they had gone to Kharupetia Police Station to lodge an ejahar, the same was not accepted. The writ petition was taken up for

consideration on 23.09.2016. When during the course of hearing it was found that no details about the ejahar which was alleged to have been not

registered, could be furnished by the petitioners therein, the writ petition was not entertained and by order dated 23.09.2016, the said writ petition was

disposed of giving, however, liberty to the petitioners therein, if they were aggrieved, to file an ejahar before the appropriate police station. It was

further observed that if such an ejahar was refused to be accepted or registered, the petitioners may take recourse to such remedies as may be

available to them in law.

The case of the petitioners in this writ petition is that pursuant to the order dated 23.09.2016 (supra) passed in the writ petition, W.P.(C) no.

5353/2016 the present 3 (three) petitioners along with one Sri Naresh Shillodged an ejahar before the Officer In-Charge, Kharupetia Police Station on

13.11.2016 against the afore-mentioned two companies and 6 (six) other persons who were the office bearers of the said two companies. On receipt

of the ejahar, the Officer In-Charge, Kharupetia Police Station has registered a case being Kharupetia Police Station Case no. 514/2016, on

13.11.2016, for offences under Sections 120B/420/409, Indian Penal Code (IPC) read with Sections 4/6 of the Prize and Money Circulation Schemes

(Banning) Act, 1978.

The present writ petition has been filed by the petitioners alleging inter alia that despite registration of Kharupetia Police Station Case no. 514/2016,

proper investigation has not been carried out. It is the contention of the petitioners that no discernible actions have been found to be taken by the

investigating authority. No efforts have been made to apprehend the perpetrators of the crime who by duping the gullible depositors, had

misappropriated a huge amount of money.

From the afore-stated projections in the writ petition, it can be noticed that after lodging ejahar before the Officer In-charge, Kharupetia Police

Station the petitioners have straight away approached this Court by way of this writ petition under Article 226 of the Constitution of India alleging

inaction and about not carrying out investigation into the case properly and satisfactorily. It has not been contended that prior to preferring this writ

petition, the petitioners had approached the jurisdictional Magistrate under Section 156(3), Code of Criminal Procedure, 1973 (CrPC) by highlighting

their grievances with regard to the manner the investigation of Kharupetia Police Station Case no. 512/2016, is being carried out and about inaction on

the part of the investigating authority for recovering the misappropriated amount.

In this connection, it would be apposite to refer to the following observations made by the Hon’ble Supreme Court of India in Sakiri Vasu vs.

State of Uttar Pradesh and others, reported in (2008) 2 SCC 409 :

“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.

The same view was taken by this Court in Dilawar Singh vs. State of Delhi (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) CrPC, and if the Magistrate is satisfied he can order a

proper investigation and take other suitable steps and pass such order order(s) as he thinks necessary for ensuring a proper investigation.

All these powers a Magistrate enjoys under Section 156(3) CrPC.

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 re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. J.A.C. Saldanha (AIR 1980 SC

326, 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.

In view of the above mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied

power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the

concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper

investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are

of the opinion that they are implied in the above provision.

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 CrPC. 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 CrPC

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) CrPC or other police officer referred to in Section 36 CrPC. 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) CrPC

instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of

filing a criminal complaint under Section 200 CrPC. 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 CrPC 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) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing

a writ petition or a petition under Section 482 CrPC.â€​

The observations made by the Hon’ble Supreme Court of India in Sakiri Vasu (supra) have again been reiterated in the subsequent decision in

Sudhir BhaskarraoTambe vs. Hemant Yashwant Dhage and others, reported in (2016) 6 SCC 277, in the following manner :

This Court has held in Sakiri Vasu vs. State of U.P., that if a person has a grievance that his FIR has not been registered by the police,

or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court

under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application

under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already

been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending

change of investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we

have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information

report or praying for a proper investigation.

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 settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside.

The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it

necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done.

The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties

may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in

the impugned order of the High Court.â€​

In view of the fact situation obtaining in the case, as have been projected briefly above, and in the light of the observations of the Hon’ble

Supreme Court of India in Sakiri Vasu (supra), and Sudhir Bhaskarrao Tambe (supra), this writ petition seeking the above directions is not entertained,

reserving the liberty, however, to the petitioners to avail the alternative remedy by approaching the jurisdictional Magistrate under Section 156(3),

CrPC, if they wish to do so. The petitioners are at liberty to produce any supporting materials in respect of the accusations made in the ejahar, if they

have such materials at their disposal, before the jurisdictional magistrate.