Case Summary
| Citation | Sakiri Vasu v. State of U.P.(2008) 2 SCC 409 |
| Keywords | |
| Facts | This case is a landmark judgement on the powers of magistrate to direct investigation under Section 156 (3) of the Code of Criminal Procedure, 1973 (CrPC). Son of the appellant was major in Indian Army his dead body was found on mathura railway station. Mathura GRP investigated the matter and concluded that 8t was accidentally suicide rather than murder But his father didn’t agreed. And said his son was killed thus he approached high court- under article 22 asked for CBI InquiryHe alleges that his son discovered widespread corruption in the Mathura Army unit, reported it to superiors and to him, and was killed because of it. Dissatisfied with the Court of investigation’s finding of suicide, the appellant took the case to the Allahabad High Court through a writ petition, but the court dismissed it. The appellant then appealed to the Supreme Court through a special leave petition under Article 136 of the Constitution of India, 1950 and demanded investigation by special investigating agency. Later under article 136 the matter reached Supreme Court. |
| Issues | 1. Whether a person can demand that an inquiry be conducted by a special investigating agency of their choice. |
| Contentions | |
| Law Points | SC gave observations related to First Information Report (FIR) and investigation. SC said that if an individual faces difficulty in getting their First Information Report (FIR) registered at a police station under Section 154 CrPC, they have recourse to approach the Superintendent of Police through a written application under Section 154(3) CrPC. If this does not yield satisfactory results, and the FIR is still not registered or lacks proper investigation, the aggrieved party can submit an application under Section 156(3) CrPC before the relevant Magistrate. The Magistrate, upon receiving such an application, has the authority to order the registration of the FIR and ensure a thorough investigation. The SC emphasized that even if an FIR is registered or under investigation, an individual dissatisfied with the process can seek redress from the Magistrate under Section 156(3) CrPC. The Magistrate, endowed with broad powers, can oversee the investigation and issue necessary directives for a proper inquiry. Despite the concise wording of Section 156(3), it encompasses extensive powers vested in the Magistrate to guarantee a meticulous investigation, including the authority to order FIR registration and direct an appropriate inquiry. The SC cautioned against entertaining Section 482 CrPC petitions if the FIR remains unregistered, advocating for the pursuit of alternative remedies like approaching police officers or the Magistrate. While acknowledging that alternative remedies do not categorically bar writ petitions, the Court stressed that interference by the HC should be avoided unless necessary. Additionally, the SC cautioned against indiscriminate use of its and HCs’ powers to order CBI investigations, reserving such intervention for rare and exceptional cases to prevent overwhelming the CBI with an unmanageable caseload. |
| Judgement | After emphasizing remedies for FIR and Complaint under CrPC the SC dismissed the appeal of appellant. |
| Ratio Decidendi & Case Authority |
Full Case Details
MARKANDEY KATJU, J.: 4. The son of the 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 of Inquiry and both times submitted the
report that the deceased Major S. Ravishankar had committed suicide at the railway track at
Mathura junction. The Court of Inquiry 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 roof with blank eyes and deeply
involved in some thoughts and used to remain oblivious of the surroundings”. The Court of
Inquiry also relied on the deposition of the 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 of Major Ravishankar alleged that in fact it was a case of
murder and not suicide. He alleged that in the Mathura unit of the 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 of Inquiry 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 of this
Court of Inquiry 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 of which another Court of Inquiry was held. However, the
second Court of Inquiry came to the same conclusion as that of the first inquiry namely, that it
was a case of suicide.
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 of special leave.
10. It has been held by this Court in CBI v. Rajesh Gandhi [(1996) 11 SCC 253] 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 of his choice.
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
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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.
12. Thus in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627] this Court observed:
“11. The clear position therefore is that any judicial Magistrate, before taking cognizance
of the offence, can order investigation under Section 156(3) of the Code. If he does so,
he is not to examine the complainant on oath because he was not taking cognizance of
any offence therein. For the purpose of enabling 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 of the 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) of the Code that an FIR should be registered, it is the duty of the officer in charge
of the 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 of Delhi [(2007) 12
SCC 641]. 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)
Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other
suitable steps and pass such order 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 of the 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 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.
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 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 v. J.A.C. Saldanha [(1980) 1 SCC 554].
17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a
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Magistrate which are necessary for ensuring a proper investigation, and it includes the power
to order registration of an F.I.R. 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) 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 of that 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 of doing 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 of minor
details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd
edn. page 267):-
“…If these details could not be inserted by implication, the drafting of legislation 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 of the statute as if it were
specifically written therein.
21. An express grant of statutory powers carries with it by necessary implication the authority
to use all reasonable means to make such grant effective. Thus in ITO v. M.K. 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
of India v. Paras Laminates [(1990) 4 SCC 453], RBI v. Peerless General Finance and
Investment Co. Ltd.[(1996) 1 SCC 642], CEO & Vice-Chairman Gujarat Maritime Board v.
Haji Daud Haji Harun Abu [1996 (11) SCC 23], J.K. Synthetics Ltd. v. CCE [(1996) 6
SCC 92], State of Karnataka v. Vishwabharati House Building Coop Society [(2003) (2)
SCC 412] etc.
23. In Savitri v. Govind Singh Rawat [(1985) 4 SCC 337] 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 of the proceeding, otherwise she
may starve during this period.
24. 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 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
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the 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 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 Cr.P.C. before the concerned
police officers, and if that is of no avail, by approaching the concerned Magistrate under Section
156(3).
26. 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) Cr.P.C. or other police
officer referred to in Section 36 Cr.P.C. 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) Cr.P.C. instead of rushing 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 of filing 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 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 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 if there is an alternative remedy the High Court should not ordinarily interfere.
29. In Union of India v. Prakash P. Hinduja [(2003) 6 SCC 1950], it has been observed by
this Court that a Magistrate cannot interfere with the investigation by the police. However, in
our opinion, the ratio of this decision would only apply when a proper investigation is being
done by the police. If the 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 of the
concerned police station, he can certainly direct the officer in charge of the police station to
make a proper investigation and can further monitor the same (though he should not himself
investigate).
30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that
a proper investigation has not been made by the officer-in-charge of the concerned police
station, such aggrieved person can approach the Superintendent of Police or other police officer
superior in rank to the officer-in-charge of the police station and such superior officer can, if he
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so wishes, do the investigation vide CBI v. State of Rajasthan [(2001) 3 SCC 333] R.P.
Kapur v. Sardar Pratap Singh Kairon [AIR 1961 SC 1117]. Also, the State Government is
competent to direct the Inspector General, Vigilance to take over the investigation of a
cognizable offence registered at a police station vide State of Bihar v. A.C. Saldanna.
31. No doubt the Magistrate cannot order investigation by the CBI vide CBI v. State of
Rajasthan, 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 of cases and would find it
impossible to properly investigate all of them.
32. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts
of Inquiry 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 Secy., Minor Irrigation & Rural Engineering Services U.P. v. Sahngoo Ram Arya
[2002 (5) SCC 521] this Court observed that although the High Court has power to order a
CBI inquiry, that power should only be exercised if the High Court after considering the
material on record comes to a conclusion that such material discloses prima facie a case calling
for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered
as a matter of routine or merely because the party makes some allegation.
34. In the present case, we are of the opinion that the material on record does not disclose a
prima facie 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, 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 a case of suicide.
35. It has been stated in the impugned order of the 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. If the report has been accepted by the Magistrate
and no appeal/revision was filed against the order of the learned Magistrate accepting the police
report, then that is the end of the matter. However, if the 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 of this Court to the Registrar
Generals/Registrars of all the High Courts, who shall circulate a copy of this Judgment to all
the Hon’ble Judges of the High Courts.
