SAKIRI VASU v. STATE OF U.P. AND ORS

Citation: [2007] 12 S.C.R. 1100

Court: Supreme Court of India

Bench: A.K. MATHUR, MARKANDEY KATJU

Case summary

SAKIRI VASU v. STATE OF U.P. AND ORS.pdf

Judgment text

SAKIRIVASU r v. STATE OF U. P. AND ORS. DECEMBER 7, 2007 [A. K. MATHUR AND MARKANDEY KATJU, JJ. ) Constitution ofIndia, 1950-Article 226-Writ Petition-Seeking investigation by CBI-Of a case, investigation whereof already conducted by railway Police and Army authorities-Maintainability of-Held: Not maintainable-An aggrieved person has no right to claim investigation ofa case by anyparticular agency ofhis choice- He can only claim proper investigation-Alternative remedy of approachingu! ss. 36, 154 (3), 156 (3) and 200Cr. P. C. is available to the person, ifhis FIR is not registered by the police-Availability of alternative remedy is not an absolute bar to a writ petition-But if available, High Court shouldnot ordinarily interfere-Supreme Court and High Court also have power under Article 136 or Article 226 of the Constitution to order investigation by the CBI-But that shoul3 be done only in rare and exceptional case-Code of Criminal Procedure, 1973-ss.

36, 154(3),156(3), 200and482-Constitution ofIndia, 1950-Article 136. Code ofCriminal Procedure, 1973-s. 156 (3)-Power under- OfMagistrate-Scope of-Discussed Doctrines/Principles-Doctrine ofimpliedpower. The son ofthe appellant was an Officer in the Indian Army. His dead body was found at Mathura Railway Station. G. R. P. investigated the matter and gave its report stating that the death G was caused due to accident or suicide. Army officials held a Court oflnquiry. Itwas concluded therein that the deceased had committed suicide at the railway track. The appellant made a representation to the Chief of the Army Staffalleging that it was a case ofmurder . llOO SAKIRI VASU v. STATE --. and not suicide. As a result another Court of Inquiry was held. Wherein it was concluded that it was a case ofsuicide. The appellant then filed a writ petition, seeking direction that the matter be ordered to be investigated the Central Bureau of Investigation. The petition was dismissed.

Hence the present appeal. Dismissing the appeal, the Court \ HELD: 1. 1. In the instant case, the material on record does not disclose aprimafacie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption, cannot justify a CBI inquiry, particularlywhen inquirieswere held by the Army authorities as well as by the G. R. P. at Mathura, which revealed that it was , , case ofsuicide. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no rightto claim that it be investigated by any particular agency ofhis choice. [Paras 34and10] [1106-A, B; 1111-G; 1112-A] CBIandAnr. v. Rajesh Gandhi andAnr. , (1997) Cr. L. J63, relied on. 1. 2. 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 ofPolice under Section 154(3) Cr. P. C.

or other police officer referred to in Section 36 Cr. P. C. Ifdespite approaching the Superintendent ofPolice 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 ofrushing to the High Court by way ofa writ petition or a petition under Section 482 Cr. P. C. Moreover, he has a further remedy offiling a criminal complaint under Section 200 Cr. P. C. [Para 26] [1109-G; 1110-A] 2. 1. Ifan application under Section 156 (3) is filed before the -f Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, iri a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor A the investigation to ensure a proper investigation. Section 156(3) r provides for a. check by the Magistrate on the police performing its duties under Chapter XII Cr. P. C.

[Paras 11and15) [1106-C, D; 1107-E) Mohd. Yousufv. Smt. Afaq Jahan and Anr. , JT (2006) 1 SC 10; Dilawar Singhv. State ofDelhi, JT (2007) 10 SC 585; CB! v. State of RajasthanandAnr. , (2001) 3 SCC 333; R. P. Kapurv. S. P. Singh, AIR (1961) SC 1117; and State o/Biharv. A. C. Saldanna, AIR(1980) SC 326, relied on. 2. 2. It is clarified that even ifan FIR has been registered and 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) Cr. P. C. , \ and, ifthe Magistrate is satisfied, he can order a proper investigation D and take other suitable steps and pass other order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr. P. C. The words 'as abovementioned' occurring in s. 190 Cr. P. C.

obviously refer to Section 156 (1), which contemplates investigation by the officer in charge ofthe Police Station. The Magistrate has very wide powers to direct registration ofan 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). [Paras 13, 14 and 27) (1107-B, C, D, E; 1110-B, CJ Union ofIndia v. Prakash P. Hinduja andAnr. , distinguished. \_ 2. 3. The power vested in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power ofthe investigating officer to further investigate G the case even after submission of his report under Section 173(8). Hence the Magistrate can order re-opening ofthe investigation even after the police submits the final report. [Para 16] (1107-F, G[ State ofBihar v. A. C. Saldanna, AIR (1980) SC 326, relied on. SAKIRIVASUv. STATE 2. 4.

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. Thus where an Act confers jurisdiction it impliedly also grants the power ofdoing all such acts or employ such means as are essentially necessary to its execution. The reason for the rule (doctrine ofimplied power) is quite apparent. Many matters of minor details are omitted from legislation. An express grant ofstatutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. [Paras 18, 19 and 21] [1108-B, C, D, E, F] ITO, Cannanore v. MK. Mohammad Kunhi, AIR (1969) SC 430; Union ofIndia v. Paras Laminates, AIR (1991) SC 696, Reserve Bank ofIndia v. Peerless General Finance and Investment Company Ltd; AIR (1996) SC 646; ChiefExecutive Officer & Vice Chairman Gujarat MaritimeBoardv. HajiDaudHajiHarunAbu, [1996] ll SCC23,JK. Synthetics Ltd. v.

Collector ofCentral Excise, AIR (1996) SC 3527, State ofKarnataka v. Vishwabharati House Building Co-op Society, 2003 (2) SCC 412 and Savitri v. Govind Singh Rawat, AIR (1986) SC 984, relied on. Statutory Construction (3rd Edition) by Crawford, referred to. 2. 5. Although Section 156(3) is very briefly worded, it is wide enough to include all such incidental powers in a Magistrate which are necessary for ensuring a proper investigation. There is an implied ~ power in the Magistrate under Section 156(3) Cr. P. C. to order registration ofa criminal offence and/or to direct the officer in charge ofthe 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) Cr. P. C. , they are implied in the above provision. [Paras 17 and 24] [1108-A, B; 1109-C, D] 3.

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that ifthere is an alternative A remedy the High Court should not ordinarily interfere. r- [Para 28) [1110-E) 4. No doubt the Magistrate cannot order investigation by the CBI but this Court or the High Court has power under Article 136 or Article 226, as the case may be, to order investigation by the CBI. B That, however, should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all ofthem. [Para31) [1111-C,D] CBIv. State ofRajasthan andAnr. , (2001) 3SCC 333; Secretary, Minor Irrigation and Rural Engineering Services UP. and Ors. v. Sahngoo Ram Arya andAnr. , [2002) 5 SCC 521, relied on. 5. It is not clear whether the report by G. R. P. Mathura was accepted by the Magistrate or not.

Ifthe report has been accepted by the Magistrate and no appeaVrevision was filed against the order ofthe Magistrate accepting the police report, then that is the end of the matter. However, ifthe Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above. (Para 35) [1112-A, B, CJ CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1685 of2007. From the final Judgment and Order dated 13. 7. 2007 ofthe High Court ofJudicature at Allahabad in Cr!. M. W. P. No. 9308/2007. '- Dinesh Kumar Garg for the Appellant,. The Judgment ofthe Court was delivered by MARKANDEY KATJU, J. 1. Leave granted. 2. This appeal is directed against the impugned judgment and order dated 13. 7. 2007 passed by the Allahabad High Court in Criminal Misc. Writ Petition No. 9308 of2007. 3. Heard learned counsel for the parties and perused the record. 4. The son ofthe appellant was a Major in the Indian Army.

His dead body was found on 23. 8. 2003 at Mathura Railway Station. The G. R. P, Mathura investigated the matter and gave a detailed report on 29. 8. 2003 stating that the death was due to an accident or suicide. 5. The Army officials at Mathura also held two Courts oflnquiry and both times submitted the report that the deceased Major S. Ravishankar had committed suicide at the railway track at Mathura junction. The Court oflnquiry relied on the statement of the Sahayak (domestic servant) Pradeep Kumar who made a statement that "deceased Major Ravishankar never looked cheerful; he used to sit on a chair in the verandah gazing at the roofwith blank eyes and deeply involved in some thoughts and used to remain oblivious ofthe surroundings". The Court of Inquiry also relied on the deposition ofthe main eye-witness, gangman Roop Singh, who stated that Major Ravishankar was hit by a goods train that came from Delhi. --', 6.

The appellant who is the father ofMajor Ravishankar alleged that in fact it was a case of murder and not suicide. He alleged that in the Mathura unit ofthe Army there was rampant corruption about which Major Ravishankar came to know and he made oral complaints about it to his superiors and also to his father. According to the appellant, it was for this reason that his son was murdered. 7. The first Court oflnquiry was held by the Army which gave its report in September, 2003 stating that it was a case of suicide. The appellant was not satisfied with the findings ofthis Court ofInquiry and -'' hence on 22. 4. 2004 he made a representation to the then Chief of the Army Staff, General N. C. Vij, as a result ofwhich another Court ofInquiry was held. However, the second Court of Inquiry came to the same conclusion as that ofthe first inquiry namely, that it was a case ofsuicide. 8. Aggrieved, a writ petition was filed in the High Court which was dismissed by the impugned judgment.

Hence this appeal. > 9. The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigation (in short 'CBI'). Since his prayer was rejected by the High Court, hence this appeal by way ofspecial leave. 10. It has been held by this Court in CBI & Anr. v. Rajesh Gandhi r and Anr. , 1997 Cr. L. J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency ofhis choice. 11. In this connection we would like to state that ifa 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 ifthat 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. Ifsuch 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. 12. Thus in Mohd. Yousufv. Smt. Afaq Jahan & Anr. , JT (2006) l SC l0, this Court observed: "The clear position therefore is that any judicial Magistrate, before taking cognizance ofthe offence, can order investigation under Section 156(3) ofthe Code.

Ifhe does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose ofenabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge ofthe police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) ofthe Code that an FIR should be registered, it is the duty ofthe officer in charge ofthe police -* ~ ' station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. ". 13.

The same view was taken by this Court in Dilawar Singh v. State ofDelhi, JT (2007) 10 SC 585 (vide para 17). We would further -\ clarify that even if an FIR has been registered and even ifthe 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) Cr. P. C. , and ifthe Magistrate is satisfied he can order aproper investigation and take other suitable steps and pass such other orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr. P. C. 14. Section 156 (3) states: - -·{ "Any Magistrate empowered under Section 190 may order such an investigation as abovementioned. " The words 'as abovementioned' obviously refer to Section 156 (1), which contemplates investigation by the officer in charge ofthe Police Station. 15.

Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr. P. C. In cases where the Magistrate finds that the police has not done its duty ofinvestigating 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. 16. 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 ofhis report vide Section 173(8). Hence the Magistrate can order re-opening ofthe investigation even after the police submits the final > report, vide State ofBihar v. A. C. Saldanna, AIR (1980) SC 326 (para 17. 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 ofan F. LR. and ofordering a proper investigation ifthe 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. 18. 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 ofthat 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 ofdoing all such acts or employ such means as are essentially necessary to its execution. 19.

The reason for the rule (doctrine of implied power) is quite apparent. Many matters ofminor details are omitted from legislation. As Crawford observes in his 'Statutory Construction' (3rd edn. page 267):- "Ifthese details could not be inserted by implication, the drafting oflegislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission". 20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part ofthe statute as ifit were specifically written therein. 21. An express grant ofstatutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO, Cannanore v. MK.

Mohammad Kunhi, AIR (1969) SC 430, this Court held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act. 22. Similar examples where this Court has affirmed the doctrine of implied powers are Union ofIndia v. Paras Laminates, AIR (1991) SC 696, Reserve Bank of India v. Peerless General Finance and Investment Company Ltd. , AIR (1996) SC 646 (at p. 656), Chief Executive Officer & Vice Chairman Gujarat Maritime Board v. Haji Daud Haji Harun Abu, [1996] 11 SCC 23, JK. Synthetics Ltd. v. Collector of Central Excise, AIR (1996) SC 3527 and State of Karnataka v. Vishwabharati House Building Co-op Society, [2003] 2 SCC 412 (at p. 432) etc. 23. In Savitri v. Govind Singh Rawat, AIR (1986) SC 984 this Court held that the power conferred on the Magistrate under Section 125Cr. P. C.

to grant maintenance to the wife implies the power to grant interim maintenance during the pendency ofthe proceeding, otherwise she may starve during this period. 24. In view ofthe abovementioned legal position, we are ofthe view that although Section 156(3) is verybriefly worded, there is an implied power in the Magistrate under Section 156(3) Cr. P. C. to order registration ofa criminal offence and /or to direct the officer in charge ofthe 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) Cr. P. C. , we are ofthe opinion that they are implied in the above provision. 25.

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 ofthe 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 ifthat is ofno avail, by approaching the concerned Magistrate under Section 156(3). > 26. Ifa 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 H 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 ofrushing 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 offiling 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? 27. 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 offiling a writ petition or petition under Section 482 Cr. P. C.

simply because a person has 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. 28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that ifthere is an alternative remedy the High Court should not ordinarily interfere. 29. In Union ofIndia v. Prakash P. Hinduja and Anr. , [2003] 6 SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police.

However, in our opinion, the ratio ofthis decision would only apply when a proper investigation is being done by the police. Ifthe Magistrate on an application under Section 156(3) Cr. P. C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge ofthe concerned police station, he can certainly direct the officer in charge ofthe police station to make a proper investigation and can further monitor the same (though he should not himselfinvestigate). 30. It may be further mentioned that in view ofSection 36 Cr. P. C. SAKIRI VASU v. STATE [KATJU,J. ] 1111 -1 ifa person is aggrieved that a proper investigation has not been made by the officer-in-charge ofthe concerned police station, such aggrieved person can approach the Superintendent ofPolice or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI v. State of Rajasthan and Anr.

, [2001] 3 SCC 333 (vide para 11), R. P. Kapur v. S. P. Singh, AIR (1961) SC 1117 etc. Also, the State Government is + competent to direct the Inspector General, Vigilance to take over the investigation ofa cognizable offence registered at a police station vide State ofBihar v. A. C. Saldanna (supra). 31. No doubt the Magistrate cannot order investigation by the CBI vide CBI v. State ofRajasthan and Anr. , (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number ofcases and would find it impossible to properly investigate all . ' ofthem. 32. In the present case, there was an investigation by the G. R. P. , Mathura and also two Courts oflnquiry held by the Army authorities and they found that it was a case of suicide.

Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry. 33. In Secretary, Minor Irrigation & Rural Engineering Services UP. and Ors. v. Sahngoo Ram Arya andAnr. , [2002] 5 SCC 521 (vide para 6) , this Court observed that although the High Court has power to order aCBI inquiry, that power should only be exercised ifthe High Court after considering the material on record comes to a conclusion that such material discloses primafacie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as matter ofroutine or merely because the party makes some allegation. 34. In the present case, we are ofthe opinion that the material on ) record does not disclose aprimafacie case calling for an investigation by the CBI.

The mere allegation ofthe appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G. R. P. at Mathura, which revealed that it was case of suicide. 35. It has been stated in the impugned order ofthe High Court that the G. R. P. at Mathura had investigated the matter and gave a detailed report on 29. 8. 2003. It is not clear whether this report was accepted by the Magistrate or not. Ifthe report has been accepted by the Magistrate and no appeal/,revision was filed against the order ofthe learned Magistrate accepting the police report, then that is the end ofthe matter. However, ifthe Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above. 36. With the above observations, this appeal stands dismissed. 37.

Let a copy of this judgment be sent by the Secretary General ofthis Court to the Registrar Generals/Registrars ofall the High Courts, who shall circulate a copy ofthis Judgment to all the Hon'ble Judges of the High Courts. K. K. T. Appeal dismissed.