S. Samayamuthu vs The State of Tamil Nadu and Others

Honourable Mr. Justice K. Chandru

The petitioner in this writ petition seeks for a direction to transfer the case in Crime No. 90 of 2012 on the file of the 5th respondent viz.,

Inspector of Police, Oomachikulam Police Station, Oomathikulam, Madurai, on the basis of the complaint of the petitioner dated 09.02.2012 and

to entrust the case to the 4th respondent / Central Bureau of Investigation (CBI) and to file a final report before the Jurisdictional Magistrate within

a stipulated time. When the writ petition came up for admission on 21.02.2012, the learned Additional Advocate General took notice for R1 to

R3, R5 & R6 and the 3rd respondent was directed to file a status report in respect of the investigation in Crime No. 90 of 2012. Further, when the

matter came up on 13.03.2012, the learned Additional Advocate General submitted that until further orders are passed from this Court, the final

report will not be lodged before the Jurisdictional Magistrate.

Subsequently, the petitioner filed M.P.(MD). No. 2 of 2012 seeking to implead one Usharani, W/o.Veeranan @ Jothibasu, as a party as R7 in

the main writ petition and that petition was also ordered on 21.02.2012. On notice from this Court, the 7th respondent has also filed a counter

affidavit dated 29.08.2012.

The petitioner has also filed an additional typed-set containing a report, dated 25.06.2012, said to have been sent by the District Collector,

Madurai, to the State Government and the 2nd respondent/Director General of Police.

Heard the arguments of Mr.T.Lajapathi Roy, Learned Counsel appearing for the petitioner and Mr.K.Chellapandian, learned Additional

Advocate General assisted by Mr.A.K.baskarapandain, learned Special Government Pleader appearing for the respondents 1, 2, 3, 5 & 6 and

Mrs.U.Nirmala Rani, Learned Counsel appearing for the 7th respondent.

The petitioner in his complaint dated 09.02.2012 addressed to the 5th respondent - Station House Officer, stated that he was a resident at

Door No. 248, Kaliamman Kovil Mettu Theru, Chinthamani, Madurai and he got three daughters and two sons and all of them were married. His

first son is Veeranan @ Jothibasu. The said Veeranan got married to Usharani (7th respondent) in the year 1990 and were living separately at

Chinthamani. They have three daughters and one son. For the first six years, they were having no problem with their married life. But, thereafter,

the petitioner''s daughter-in-law Usharani (7th respondent herein) had developed illicit relationship with one Pandiyan of Keeraithurai and problem

arose in the family. Once petitioner''s son went along with his family to Kutralam, his daughter-in-law and the said Pandiyan attempted to murder

his son and his son escaped from the said attempt. Subsequently, at the advice of the elders in the family, they started living together. But, once

again, at the instance of his daughter-in-law, the said Pandiyan attempted to kill his son, but his son escaped with a cut injury on his hand.

Thereafter, his son and Usharani started to live separately. Usharani lived with her parents at Narayanapuram.

5(a) His daughter-in-law filed petition for divorce before the Family Court and she obtained an exparte decree for divorce. His daughter-in-law

was working in an Open University at Thallakulam. She had also developed illicit relationship with the administrator of the said University by name

Nageshwaran. Attempts made by the elders in the family could not result in any compromise. Four months before, his daughter Usharani along

with the relatives came to the petitioner''s house and stated that whatever has happened as happened and that she should live with his son. The

petitioner consoled both of them and set up a house at Bharath Nagar near Iyar Bungalow and made them to live there along with his

grandchildren. His daughter-in-law continued to work in the Open University at Thallakulam. Once his son went to the work place of his daughter-

in-law, and found Nageshwaran and his daughter-in-law were in a compromising posture. When his son scolded them, the said Nageshwaren told

that they will continue to live that way and if he interfered, he will face dire consequences. All these facts were told to the petitioner by his son.

5(b) Therefore, the petitioner''s son compelled her not to go to work. Having that in mind for more than one month, his daughter-in-law and

grandchildren started to give trouble to the petitioner''s son and asked to transfer the properties of the petitioner''s son in their favour. This fact was

also informed to the petitioner by his son. He also told to the petitioner that his father-in-law Chandran, his brother-in-law Ramkumar and his wife

told that unless the properties were transferred in the name of the petitioner''s daughter- in-law Usharani, he will be finished off. On 08.02.2012,

when the petitioner and his son went for a hearing in the Court, they came to know that the petitioner''s daughter-in-law gave a complaint against

the petitioner''s son before the Police Station.

5(c) After the hearing of the case, the petitioner sent his son along with grandson Selvam to the Police Station. His daughter-in-law had given a

complaint against his son alleging that he had stolen the jewels owned by her. The Police after enquiry found that there is no truth in the complaint

and they were advised to settle the matter in Court. The Police also advised his son to vacate his house and to go separately. When his son and his

grandson went to the house to take up the clothes, his daughter-in-law and two unidentified youths along with other grandchildren abused them and

threatened that they will not leave without killing his son. This fact was also informed to the petitioner by his son. On the date of occurrence at

12.30 pm, the petitioner''s son and his grandson Selvam went to the house to get back the rental advance amount from the house owner. But, at

6.30 pm, he came to know that his son was killed in the house. When he and his relatives went, they found that his son was dead with injuries on

his head and face. He suspected the role of his daughter-in-law and her father Chandran, her brother Ramkumar and Nageshwaran in the killing of

his son with the assistance of henchmen. Therefore, he sought proper action to be initiated. The complaint was written by his another daughter-in-

law Marimuthu as per his dictation.

5(d) The 5th respondent on receipt of the said complaint registered a case in Crime No. 90 of 2012 u/s 302 IPC on 09.02.2012 at 19.00 hours.

Subsequently, the petitioner stated that he read in Daily Thanthi newspaper that though his daughter-in-law Usharani a murder accused was

released by the Police. Therefore, the petitioner claimed that if Officers, who are investigating the case, are allowed to continue the investigation,

the accused may escape and the case may go in a wrong direction. The said letter dated 11.02.2012 was addressed to the Director General of

Police (the 2nd respondent). The petitioner also sent a complaint to the 1st respondent / Home Secretary on 14.02.2012 stating that the

Investigating Officer Balaji had not been investigating the case on the basis of his complaint and the persons in support of his complaint have not

been enquire, therefore, he alleged that if the Investigating Officer, who is investigating the case, if allowed to continue the investigation, the

investigation may go in a wrong direction.

Even before any action taken on his letters, immediately the present writ petition came to be filed on 17.02.2012. The writ petition came up for

admission on 21.02.2012.

On being directed by this Court, the 3rd respondent / Superintendent Of Police, Maduari (Rural), has filed a detailed report dated 28.05.2012.

In that report, the allegations made by the petitioner were completely denied and the previous history of the discord between the petitioner''s son

and the 7th respondent was elaborately set out. Also the nature of investigation conducted by the 5th respondent was also set out. The

investigation revealed that on 09.02.2012 at about 3.30 pm, the petitioner''s son Veeranan @ Jothibasu came to the house in a drunken mood and

on entry, he caught hold of his wife''s hand and tried to force her for a sexual intercourse, to which she refused. On hearing the cries of R7, her

daughter Gokulapriya (who did not go to college as she was not feeling well) came there and questioned her father about his conduct. The

petitioner''s son shouted that ''if not you so what, your daughter is there''. Afterwards, he pushed his daughter to the bedroom and forcibly laid her

on the bed. He even tore her dress and opened the zip of his trouser. On seeing that, the 7th respondent tried to stop him, but he pushed her aside.

Seeing no other alternative and after making her best efforts, 7th respondent took a cricket bat lying nearby and hit him on his back. However, the

same was snatched by the petitioner''s son, who in turn hit her. On seeing this, the daughter went to the rescue of her mother(R7). But the

petitioner''s son again hit his daughter. On seeking that, the 7th respondent asked her daughter Gokulapriya to go out of the room. When

Gokulapriya attempted to go out of the room, the petitioner''s son prevented her from going out. Left with no other alternative, the 7th respondent

hit the petitioner''s son with the bat on his head. Even after hitting on the head, the petitioner''s son did not leave Gokulapriya. Therefore, the 7th

respondent again hit him few more times. Even after that, the petitioner''s son did not relent. Hence, the 7th respondent caught hold of his testicles

and squeezed them. Then he fell down. They tried to help him by throwing water on his face. Subsequently, 108 Ambulance service was also

called for by the 7th respondent.

It is stated in the said report that the Investigating Officer, after examining all the witnesses, who are relevant to the case, including both the

daughters of the petitioner''s son viz., Gokulapriya and Rajapriya, the house owner Ramamoorthy and his wife Vijayalakshmi, also enquired the 7th

respondent on 10.02.2012. It was under these circumstances, the Investigating Officer wanted to rely upon Section 100 IPC, which provided the

right of private defence. It was denied that the 5th respondent was supporting the accused. There was no reason for the 5th respondent to support

the case of the 7th respondent or her relatives. The Investigating Officer, after applying his mind and after following due procedure by visiting the

spot, conducting inquest, examining witnesses, interrogating the accused, was of the opinion that the assault on the deceased was for a private

defence. The other accused mentioned in the FIR viz., Chandran, Ramkumar and Nageshwaran were also interrogated. But, the Investigating

Officer found that at the time of occurrence, the brother of the 7th respondent, was present elsewhere. Similarly, another accused person

Nageshwaran was working in his office. The 7th respondent''s father was also not present in the place of occurrence at the relevant time. Their

absence was also confirmed by the witnesses. Postmortem report was received by the 5th respondent / Investigating Officer on 28.02.2012. It

contained the Doctor''s opinion stating that the deceased would appear to have died of multiple injuries 16.20 hours prior to postmortem and that

at the time of death, the visceral organs contained ethyl alcohol. During the course of the investigation, the statements of Rajapriya, Gokulapriya,

Velammal were recorded by the Judicial Magistrate No. III, Madruai, on 14.02.2012 and 16.02.2012 u/s 164 of Cr.P.C. The statements

recorded under 164 of Cr.P.C., corroborated the investigation done by the Investigating Officer. It was further submitted that the 5th respondent

has also almost completed the investigation and he is awaiting for the serology report.

In support of these averments, a typed-set was also filed along with the status report by the 3rd respondent dated 24.08.2012. The said typed-

set contained the statements of Ms.Rajapriya, Gokulapriya and Velammal recorded u/s 164 of Cr.P.C., and postmortem certificate and viscera

examination report. In order to ascertain, whether the said Nageshwaran and Rajkumar were present in the place of occurrence, a copy of th

attendance register was obtained from BSNL Office, Madurai relating to Nageshwaran, which showed that he was working in the office at the

time of occurrence. Similarly, a copy of the Entry Register extract was obtained from Meenachi Amman Temple, to show that the said Rajkumar

was present in the Temple at the time of occurrence. To show the previous enmity between the deceased Veeranan and the 7th respondent,

several documents and FIRs registered earlier were also enclosed in the typed- set. However, it is unnecessary to traverse through those

documents as the investigation is yet to be completed by the 5th respondent.

Mr. T. Lajapathi Roy, Learned Counsel appearing for the petitioner placed heavily reliance on the DO letter dated 25.06.2012 addressed to

the 2nd respondent / Director General of Police by the District Collector, Madurai. It is claimed by the petitioner that they have obtained the

document from the Public Information Officer, attached to the District Collector, with a covering letter dated 25.06.2012. It is not clear as to how

the confidential DO letter sent in connection with a pending criminal investigation was made available, that too by having recourse to RTI. In fact,

under the provisions of RTI Act, such documents can not be made available, if it related to any pending criminal investigation.

At any event, the District Collector sent his report, dated 25.06.2012, to the State Government and the 2nd respondent / Director General of

Police on the petition filed by the petitioner dated 09.04.2012. It must be noted that the present writ petition, seeking for change of the

investigation of the case, filed by the petitioner in this Court on 17.02.2012 and brought up for admission on 21.02.2012. On behalf of the

respondents 1, 2, 3, 5 & 6, notice was taken by the learned Additional Advocate General and this Court directed the 3rd respondent /

Superintendent Of Police to file a status report, which was also filed on 28.05.2012. When the matter is pending before this Court and this Court

has seized of the matter, it is not clear as to why the District Collector, Madurai, by way of a DO Letter recommended the transfer of investigation

to CBCID. The District Collector himself in his letter stated as follows:-

As as a District Collector and District Magistrate I am duty bound to bring to your notice when I truly believe that injustice was meted out to a

poor senior citizen in the form of denial of fair trail in the Court of law in case of heinous crime of murder involving his own son.

It also not clear as to whether the facts set out by the District Collector are based upon any official documents collected during the course of the

investigation. But he himself stated that he called for a report from the 5th respondent / Inspector of Police regarding the details and stage of the

case and that he had not received any report from the 5th respondent / Inspector of Police. Therefore, the report was not based upon the existing

investigation carried out by the Station House Officer namely 5th respondent and on the materials collected by him during the course of the

investigation. On the other hand, the report was based on certain unsubstantiated news items appeared in the newspapers.

The District Collector also stated in para 6 of the DO Letter that he made a discreet enquiry and it revealed that Veeranan @ Jothibasu was

not in inebriated mood at the time of his murder as per RFSL report contrary to the confession made by the accused (presumably 7th respondent).

On the contrary, the viscera report obtained by the 5th respondent from the Regional Forensic Science Laboratory, Madurai, signed by the

Deputy Director & Assistant Chemical Examiner to Government, enclosed at page 47 & 48 of the typed-set, contains the following observations:-

Ref: 1. P.M. No. 306/12 dated 10.02.2012

P.M. done by Dr.G.Natarajan

Cr. No. 90/12 of Oomathikulam Police Station

The following articles were received here on 15.02.2012 with proper labels through PC. No. MD: 636-Tr. Shankar Selvan under unbroken seals

which corresponded with the sample sent and they were examined with the results noted against each viz:

Stomach and Contents Detected (220) two hundred and twenty Milligrams of ethyl

alcohol and not other poison

Intestine and Contents Detected (166.0) one hundred and sixty six milligrams of

ethyl alcohol and not other poison

Liver & Kidney Detected (175.0) one hundred and seventy five milligrams of

ethyl alcohol and not other poison.

Brain Detected (161.0) one hundred and sixty one milligrams of

ethyl alcohol and not other poison.

Blood Detected (92.0) ninety two milligrams of percent w/v of

ethyl alcohol and not other poison

The opinion of the Dr.G.Natarajan, M.D., Professor & HOD of Forensic Medicine, District Police Surgeon, Madurai Medical College, regarding

the postmortem also shows the follows report:-

I am furnishing my final opinion as to the cause of death of the deceased referred to above based on the chemical examiner''s report : (Emphasis

added)

The deceased would appear to have died of multiple injuries 16-20 house

prior to postmortem. At the time of death the visceral organs contains ethyl

alcohol.

(Emphasis Added)

Therefore, it is not correct on the part of the District Collector, without any basis, to conclude that the deceased was in inebriated mood at the time

of murder as there is no such findings are found in the postmortem report. In any event, it is entirely the matter for the Investigating Officer to

decide and for him to file a final report on the basis of the materials collected during the course of the investigation.

The same District Collector also sent a further DO letter dated 25.06.2012 extracting the details of the postmortem report. But at the time

when the postmortem report was given on 10.02.2012, the opinion was reserved pending the chemical examination report. Subsequently, the

Doctor opined that the death was due to multiple injuries, but he had also stated that the viscera organs contained ethyl alcohol. The question as to

whether the deceased was in inebriated condition is a matter to be decided on the basis of the postmortem report and by the evidence of direct

witnesses present in the occurrence.

Even after receiving the DO Letters addressed to the 2nd respondent, no counter affidavit has been filed by either the 1st respondent or 2nd

respondent. On the other hand, the learned Additional Advocate General appearing for the respondents 1, 2, 3, 5 & 6 stated that the State had no

response on the status report filed by the 3rd respondent and they have nothing to further state in the matter. Therefore, it is clear that even after

the receipt of the two DO Letters sent by the District Collector on his own, the State Government did not act upon the said DO letters for

changing the investigation agency in the case.

In the present writ petition, since the District Collector, Madurai, has not been made as a party, this Court is unable to call for any reply

regarding the basis of sending the reports.

But, however, in the affidavit filed in support of the writ petition, the petitioner at para 3 has stated as follows:-

After registering the case, the Respondent No. 5 did not even conduct a proper enquiry and failed to even enquire with me and any other witness

who have knowledge of previous occurrences

This statement of the petitioner is totally erroneous. A perusal of the case file clearly shows that he was examined on 09.02.2012 and statement

recorded under 164 Cr.P.C is very much found in the file. It only shows that the petitioner''s apprehension was on the basis of the newspaper

reports. He had gone to the extent of denying his own statement. Hence, on the basis of apprehension of the petitioner, it cannot be said that the

investigation is on a wrong course or that the Investigating Officer had not examined the relevant witnesses in respect of the crime relating to the

death of the petitioner''s son. The stand of the petitioner clearly showed that he had no records to the contrary and he had gone to the extent of

denying his own statement made before the Investigating Officer. The petitioner had stated in his representation to the respondents 1 & 2 that he

came to know that the investigation was not properly conducted on the basis of the news appeared in the Daily Thanthi on 11.02.2012. Curiously

in the typed-set filed by the petitioner, various newspapers clippings including Hindu, an English newspaper has been enclosed. Admittedly, the

petitioner is not familiar with English language and even then, the Hindu Newspaper clipping was also enclosed in the typed-set.

Similarly, the District Collector in his DO letters had based upon his views and also based on various news appeared in dailies in different

dates. It must be noted that in a criminal case, the Investigating Agency should not be carried on by the unsubstantiated press reports and they

have to confine themselves to the materials collected during the course of the investigation and must proceed strictly in accordance with the

Criminal Procedure Code before filing a final report before the Jurisdictional Magistrate.

In the present case, the 7th respondent has been impleaded in this writ petition at the instance of the writ petitioner, as she had been shown as

the main accused in the present case. However, this Court is not inclined to refer to the averments made in the counter affidavit filed by her dated

29.12.2012. If all the 7th respondent was made an accused, she has a constitutional right not to incriminate herself in the trial. There was no

necessity for the 7th respondent to file an affidavit. If at all, she wanted to plea of self-defence in terms of Section 100(2) of Cr.P.C. it is for her to

do so before an appropriate forum in a case a necessity arose. Hence, this Court did not take note of the affidavit filed by the 7th respondent. It is

also made clear that the said affidavit dated 29.12.2012 cannot be produced before any forum.

The only question to be decided in this writ petition is whether the investigation done by the 5th respondent should be taken away from him

and be entrusted to any other investigating agency.

Though initially the petitioner sought for an investigation by the 4th respondent / CBI, however, Mr. T. Lajapathi Roy, Learned Counsel for the

petitioner submitted that the petitioner''s claim will be satisfied if the matter is entrusted to CBCID and for this purpose only, he referred to the

recommendations made by the District Collector in his DO Letters referred to above.

As the official respondents themselves were not inclined to transfer the investigation and have not accepted the report of the District Collector,

the petitioner''s reliance upon the said DO letters of the District Collector cannot be allowed. It is not, as if the 5th respondent had not conducted

any investigation as per law. On the other hand, the investigation has been conducted in proper manner and ultimately, if the petitioner is aggrieved

about the out come of the investigation, it is for him to make a proper application before the Jurisdictional Magistrate, before whom the final report

will be submitted by the 5th respondent after the investigation is over. The petitioner''s apprehension that the 5th respondent is guided by the 3rd

respondent does not also stand to reason, since the materials/evidence are entirely collected by the 5th respondent and he is yet to file his final

report.

It is also incidentally brought to the notice of this Court that the person, who was holding the office of the 5th respondent, is no longer in that

post and he has been transferred to some other district. Hence, even the apprehension that the Investigating Officer will be guided by an interested

superior officer also does not exist in this Case.

It must be noted that as and when a final report is filed by the 5th respondent before the Jurisdictional Magistrate, there is enough power

vested with the Magistrate to deal with the situation. The Jurisdictional Magistrate has got power u/s 156(3) of Cr.P.C., for further investigation.

Even after submission of the report, the power of the Investigating Officer for further investigation is also not foreclosed in terms of Section 173(8)

of the Cr.P.C.

In this context, it is necessary to refer to a judgment of the Honourable Supreme Court in State of Bihar and Another Vs. P.P. Sharma, IAS

and Another, . Whether the High Court on the basis of some unsubstantiated materials produced in a petition filed before this Court can deal with

and derail the criminal investigation even under Article 226 or 227 of the Constitution came to be considered by the Supreme Court and in that

judgment in paragraphs 16,20,31 and 33 it has been held as follows:

It is thus obvious that the annexures were neither part of the police reports nor were relied upon by the Investigating Officer. These documents

were produced by the respondents before the High Court along with the writ petitions. By treating the annexures and affidavits as evidence and by

converting itself into a trial court the High Court pronounced the respondents to be innocent and quashed the proceedings. The least we can say is

that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. this Court has repeatedly held that

the appreciation of evidence is the function of the criminal courts. The High Court, under the circumstances, could not have assumed jurisdiction

and put an end to the process of investigation and trial provided under the law. Since the High Court strongly relied upon the annexures in support

of its findings, we may briefly examine these documents.

We do not wish to express any opinion on the rival contentions of the parties based on their respective appreciation of material on the record.

We have quoted the annexures, the inferences drawn by the High Court and the factual assessment of Mr Sibal, only to show that the High Court

fell into grave error in appreciating the documents produced by the respondents along with the writ petitions and further delving into disputed

questions of facts in its jurisdiction under Article 226-227 of the Constitution of India.

Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Article 226-

227 of the Constitution of India at a stage when the Special Judge was seized of the matter. He had heard the arguments on the question of

cognisance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders.

The above order was brought to the notice of the Patna High Court but the High Court refused to be persuaded to adopt the same course. We

are of the considered view that at a stage when the police report u/s 173 CrPC has been forwarded to the Magistrate after completion of the

investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline

itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction. We could have set aside the High Court judgment

on this ground alone but elaborate argument having been addressed by the Learned Counsel for the parties we thought it proper to deal with all the

aspects of the case.

Once a charge sheet has already been filed and the accused are proceeded against, if any further materials are available, the court can only

alter the charges so framed and in such circumstances, the further investigation is not taken away in terms of Section 173(8), as held by the

Supreme Court in Rajesh and Ors. v. SHO Ist Town, Kadappa, 2001 (10) SCC 759 and in paragraph 2, it was observed as follows:

This appeal is directed against the impugned order of the High Court of Bombay at Nagpur Bench in criminal writ petition directing a fresh and

further investigation by an agency other than the local police, though on the basis of the FIR the local police did investigate into the matter, and in

the meantime have filed charge-sheet against the accused persons. While the investigation was on, the complainant approached the High Court by

filing a writ petition. The High Court has taken an unusual step of forming a panel and directing them to examine the matter, and on the basis of the

said panel report, the High Court has directed a further investigation by an agency other than the local police to be headed by the Superintendent

of Police. Since the investigation agency has already filed the charge-sheet on the basis of which the accused persons are being proceeded against,

if any further materials are available, the Court may alter the charge framed. In the circumstances, we have no hesitation to come to the conclusion

that the High Court has overstepped its jurisdiction in issuing the impugned direction calling upon further investigation into the matter, which in our

considered opinion, would be an abuse of the process of the court. We, therefore, set aside the impugned order of the High Court dated 9-3-

2000. The appeal is disposed of accordingly. Needless to mention, power of the investigating agency to have any further investigation exercised u/s

173(8) CrPC is not being taken away by this order.

(Emphasis added)

Finally, for the question of change of investigation and the power of the Court to direct change of investigation, it is necessary to refer to the

judgment of the Honourable Supreme Court reported in Sakiri Vasu Vs. State of U.P. and Others, it has been observed as follows:-

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. Saldanha4 (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.

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

in the Magistrate u/s 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned 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.

In this case, both sides made submissions on the basis of the pleadings, but since the investigation is pending, this Court is not inclined to render

any findings on merits of the contentions raised regarding the circumstances relating to the death of the petitioner''s son, as it may affect the course

of the investigation and rights of the parties. In the light of the above factual matrix and the legal precedents referred to above, there is no case

made out to entertain this writ petition. The writ petition will stand dismissed. The 5th respondent is at liberty to complete the investigation and to

file his final report before the Jurisdictional Magistrate. Consequently, connected Miscellaneous Petition is closed. No costs.