Md. Islam Ali v. The State of Assam and 3 Ors

ORDER Date : 15-02-2023 Heard Mr. D. Mazumdar, learned counsel for the petitioner and Mr. C.K.S. Baruah, learned Junior Government Advocate, Assam for all the respondents.

¶2The instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioner seeking inter alia a direction to the respondent authorities to register a case on the basis of a First Information Report [FIR], claimed to be submitted by the petitioner but not accepted by the respondent no. 4.

¶3The petitioner has stated that he is presently working as Track Maintainer, Grade-IV in the office of the Divisional Railway Manager, Rangia Division, North East Frontier Railways. It is stated that he has been living with his aged mother, his wife and two children at his residence. It has been also averred that at about 6 [six] months earlier, the petitioner received a phone call demanding money from him and thereafter, he continued to receive such phone calls with the threat that dire consequence would follow, if the demand is not fulfilled.

3.1. Having received such threats over phone, the petitioner stated to have approached the Officer In-Charge, Tamulpur Police Station [the respondent no. 4] to inform about the phone calls. It is contended that the Officer In-Charge, Tamulpur Police Station did not accept the FIR, claimed to have been submitted by the petitioner, and did not register any case without assigning any reason Page No.# 3/7 despite several approaches to the said authority by the petitioner.

¶4From the pleadings made in the writ petition and from the submissions of the learned counsel for the petitioner, it has emerged that the respondent authorities, more particularly, the respondent no. 4 has not accepted and registered, despite being duty bound, the FIR sought to be lodged by the petitioner and has refused to investigate after registering a case. Projecting so, the petitioner has approached this Court by this writ petition.

¶5From the afore-mentioned projections made in the writ petition and submissions so made, it is evident that after approaching the Officer In-Charge, Tamulpur Police Station [the respondent no. 4] allegedly with a FIR, the petitioner has straightway approached this Court by this writ petition under Article 226 of the Constitution of India seeking the above direction, on the premise that the respondent authorities did not accept the FIR sought to be lodged by the petitioner. Thus, it is clearly demonstrated that the petitioner has not approached the concerned higher authorities either under Section 36, Code of Criminal Procedure, 1973 [CrPC] or under Section 154[3], CrPC by any application in writing. The petitioner has not also approached the jurisdictional Magistrate by filing any application under Section 156 [3], CrPC by highlighting his grievances in respect of non-registration of the FIR by the Officer In-Charge, Tamulpur Police Station [the respondent no. 4].

¶6In 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. Page No.# 4/7 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.

¶13The 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.

¶15Section 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.

¶16The 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 [SSC AIR para 19].

¶17In 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 Page No.# 5/7 proper investigation.

¶24In 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 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.

¶25We 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].

¶26If 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?

¶27As 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, Page No.# 6/7 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."

¶7The observations made by the Hon'ble Supreme Court of India in Sakiri Vasu [supra] have again been reiterated in the subsequent decision in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and others, reported in [2016] 6 SCC 277 in the following manner : "2. 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.

¶3We 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.

¶4In 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] Page No.# 7/7 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."

¶8In 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 petitioner to avail the alternative remedies, firstly, under Section 36, CrPC and Section 154 [3], CrPC before the police officer concerned and if that is of not to his satisfaction, secondly, by approaching the jurisdictional Magistrate under Section 156 [3], CrPC, if he wishes to do so. While not entertaining the writ petition, this Court would like to clarify that this Court has not expressed any opinion on merits and whether any criminal offence is made out or not.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010028952023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/796/2023o MD.oISLAMoALIo S/O-oLATEoJABBARoALI,o R/O-oVILLAGEoAMBARI,o P.O-oKUMARIKATA,o P.S-oTAMULPUR,oDIST-oBAKSA,oASSAM,o PIN-781360 VERSUSo THEoSTATEoOFoASSAMoANDo3oORSo THROUGHoTHEoSECRETARYo,oDEPARTMENToOFoHOMEoAFFAIRSo,oGOVT.oOF ASSAM,oDISPUR,oGUWAHATI-o781006 2:THEoDIRECTORoGENERALoOFoPOLICEo oASSAM oULUBARI oGUWAHATI-07 oASSAM 3:THEoSUPERINTENDENToOFoPOLICEo oBAKSA oP.O P.SoANDoDIST-oBAKSA oASSAM 4:THEoOFFICERoINoCHARGE oTAMULPURoPOLICEoSTATION o P.S-oTAMULPUR oDIST-oBAKSA oASSAo Page No.# 2/7 Advocate for the Petitioner : P. MEDHI Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY