IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 38159 of 2007(P)
1. VASANTHI DEVI, AGED 51,
... Petitioner
Vs
1. S.I. OF POLICE,
... Respondent
2. STATE OF KERALA, REPRESENTED
3. STATE OF KERALA, REP. BY SECRETARY
For Petitioner :SRI.C.P.UDAYABHANU
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
Dated :12/02/2008
O R D E R
R.BASANT, J
------------------------------------
W.P(C).No.38159 of 2007
-------------------------------------
Dated this the 12th day of February, 2008
ORDER
When the investigation has commenced and the
accused, the defacto complainant/the victim or any other
has a grievance that the investigation is not done properly,
what is the remedy with such persons has in law ? Can he
come to this Court with a petition under Section 482 Cr.P.C
or Article 226/227 of the Constitution ? Can or should this
Court entertain and consider such a petition ? Before such
person exhausts his alternative remedy of approaching the
Magistrate under Section 156 (3) Cr.P.C should such a
person ordinarily be permitted entry into this Court ?
Unless exceptional and peculiar reasons are shown to exist,
will this Court be justified in entertaining such a petition ?
These are the questions that arise for consideration in this
Writ Petition.
2. The factual matrix is simple. Crime No.2001 of
2007 of Kattakkada Police Station has been registered
W.P(C).No.38159 of 2007 2
alleging offences punishable, inter alia, under Sections 468
and 420 r/w 34 I.P.C. The petitioner, a woman, aged 51
years is the defacto complainant in that crime. Her short
grievance is that no proper investigation has been conducted
by the Investigating Officer so far. She has come to this
Court without and before approaching the learned
Magistrate with request to issue appropriate directions
under Section 156(3) Cr.P.C.
3. When this case came up for hearing, this Court felt
that in the light of the decision in Sakiri Vasu v. State of
U.P [2008 AIR SCW 309], the above questions deserve
detailed consideration. Many similar matters, in which the
same question arises, have been heard and the counsel were
requested to advance arguments on this specific aspect.
Arguments have been heard. Sri.C.P.Udayabhanu, the
learned counsel for the petitioner has advanced his
arguments. At the request of this Court, Advocate
S.Sreekumar, the Standing Counsel for C.B.I has advanced
W.P(C).No.38159 of 2007 3
arguments as Amicus Curiae. The learned Public Prosecutor
has also been heard.
4. The learned counsel for the petitioner
Sri.C.P.Udayabhanu submits that the power of this Court to
entertain an application under Section 482 Cr.P.C and/or
Article 226/227 of the Constitution are not taken away by
the decision in Sakiri Vasu v. State of U.P [2008 AIR SCW
309]. In an appropriate case, such jurisdiction still vests
with the Court. It is, in these circumstances, contended
that in any view of the matter, the jurisdiction of this Court
to entertain this petition under Article 226 of the
Constitution cannot be held to be taken away by the decision
in Sakiri Vasu. The counsel submits that this is a proper
case where such jurisdiction can and ought to be invoked.
5. The learned counsel for the petitioner then
contends that the nature of reliefs that can be sought from a
Magistrate under Section 156(3) Cr.P.C is rather limited and
cannot, at any rate, remedy the grievance of the petitioner.
W.P(C).No.38159 of 2007 4
6. The decision in Sakiri Vasu appears to have
considered all these aspects. I shall first consider the
relevant observations in Sakiri Vasu which clearly lays down
that the Magistrate has competence to monitor and
supervise the investigation in an on going manner when the
investigation is pending.
7. In para.11 of the Sakiri Vasu, the learned Judges
have stated so:
“……………………………………………………………..
if even after registering it (FIR) 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
W.P(C).No.38159 of 2007 5
provision monitor the investigation to
ensure a proper investigation.”
(emphasis supplied)
8. Later in para.13, the learned Judges proceeded to
observe as follows:
”
We
would further clarify that even if thepolice 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 if the Magistrate is
satisfied he can order a proper investigation
and take other suitable steps and pass such
order as he thinks necessary for ensuring a
proper investigation. All these powers a
Magistrate enjoys under Section 156(3)
Cr.P.C.”
(emphasis supplied)
9. Later, in para.15, the learned Judges have
observed thus:
“Section 156(3) provides for a check by
the Magistrate on the police performing its
W.P(C).No.38159 of 2007 6
duties under Chapter XII Cr.P.C. 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.”
10. When it came to para.17, the learned Judges
observed as follows:
“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 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.”
11. Later, after adverting to the principle that an
express grant of statutory power carries with it by necessary
W.P(C).No.38159 of 2007 7
implication the authority to use all reasonable means to
make such grant effective, the learned Judges construed the
power under Section 156(3) Cr.P.C to include an implied
power to direct a proper investigation. In para.24 the
principle is stated with precision in the following words
“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) Cr.P.C 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) Cr.P.C, we are
of the opinion that they are implied in the
above provision.”
(emphasis supplied)
W.P(C).No.38159 of 2007 8
12. The learned Judges elaborated on the above
matter with a specific purpose. Their Lordships were aware
of the practice of persons rushing to the High Court with
Writ Petitions or petitions under Section 482 Cr.P.C. The
learned Judges want to make it clear that ordinarily such a
practice should not be encouraged and the High Courts must
refuse to interfere with such matters. In para.25 the
following lines appear.
“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 mattes, and relegate the petitioner to his
alternative remedy.”
13. To dispel, any impression that the Magistrate does
not have powers to ensure a proper investigation, their
W.P(C).No.38159 of 2007 9
Lordships proceeded further and stated so in para.27 in the
following words.
“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 his 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 girevance, 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.”
W.P(C).No.38159 of 2007 10
14. After observing that such an alternate remedy
available to such a petitioner, the learned Judges in para.28
stated thus:
“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.”
15. The learned counsel for the petitioner expresses
doubt as to whether this conclusion that the Magistrate has
powers under Section 156(3) Cr.P.C is correct.
Sri.S.Sreekumar, Standing Counsel for C.B.I, particularly
relies on the decision of the 3 Judge Bench of the Supreme
Court in 1980 S.C 326 State of Bihar v. J.A.C.Saldanna
[AIR 1980 S.C 326.]. The counsel relies on the following
observations in para.25 and 26 of the said decision.
“para.25:There is a clear-cut and well
demarcated sphere of activity in the field of
crime detection and crime punishment.
Investigation of an offence is the field
exclusively reserved for the executive
W.P(C).No.38159 of 2007 11
through the police department, the
superintendence over which vests in the
State Government. The executive which is
charged with a duty to keep vigilance over
law and order situation is obliged to prevent
crime and if an offence is alleged to have
been committed it is its bounden duty to
investigate into the offence and bring the
offender to book. Once it investigates and
finds an offence having been committed it is
its duty to collect evidence for the purpose
of proving the offence. Once that is
completed and the investigating officer
submits report to the Court requesting the
Court to take cognisance of the offence
under Section 190 of the Code its duty
comes to an end. On a cognizance of the
offence being taken by the Court the police
function of investigation comes to an end
subject to the provision contained in Section
173(8), there commences the adjudicatory
function of the judiciary to determine
whether an offence has been committed and
if so, whether by the person or persons
W.P(C).No.38159 of 2007 12
charged with the crime by the police in its
report to the Court, and to award adequate
punishment according to law for the offence
proved to the satisfacytion of the Court.
There is thus a well defined and well
demarcated function in the field of crime
detection and its subsequent adjudication
between the police and the Magistrate. This
has been recognised way back in King
Emperor v. Khwaja Nazir Ahmad, (1944) 71
Ind App 203 at p.213, where the Privy
Council observed as under:
“In India, as has been shown, there is a
statutory right on the part of the police to
investigate the circumstances of an alleged
cognizable crime without requiring any
authority from the judicial authorities and it
would, as their Lordships think, be an
unfortunate result if it should be held
possible to interfere with those statutory
rights by an exercise of the inherent
jurisdiction of the Court. The functions of
the judiciary and the police are
complementary, not overlapping, and the
W.P(C).No.38159 of 2007 13
combination of individual liberty with a due
observance of law and order is only to be
obtained by leaving each to exercise its own
function, always, of course, subject to the
right of the Court to intervene in an
appropriate case when moved under
Section 491 of the Criminal Procedure Code
to give directions in the nature of habeas
corpus. In such a case as the present,
however, the court’s functions begin when a
charge is preferred before it, and not until
then”.
26. This view of the Judicial Committee
clearly demarcates the functions of the
executive and the judiciary in the field of
detection of crime and its subsequent trial
and it would appear that the power of the
police to investigate into a cognizable offence
is ordinarily not to be interfered with by the
judiciary.”
W.P(C).No.38159 of 2007 14
(R.BASANT, JUDGE)
rtr/-