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CASE NO.: Appeal (crl.)  1685 of 2007

PETITIONER: Sakiri Vasu

RESPONDENT: State of U.P. and others

DATE OF JUDGMENT: 07/12/2007

BENCH: A.K. Mathur & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1685 OF 2007 (Arising out of Special Leave Petition (Criminal) No.6404/ 2007)

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 of 2007.

3.      Heard learned counsel for the parties and perused the record.

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 \023deceased 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\024.  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

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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 \021CBI\022).  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 & another vs. Rajesh Gandhi  and another 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 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 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 vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC  10, this Court observed:                  \023The 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.\024.

13.     The same view was taken by this Court in Dilawar Singh vs. State of  Delhi JT 2007 (10) SC 585 (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) 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:

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\023Any Magistrate empowered under Section 190 may  order such an investigation as abovementioned.\024        The words ‘as abovementioned\022 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 vs. A.C. Saldanna AIR 1980 SC 326 (para 19).    

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 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 \021Statutory Construction\022 (3rd edn. page 267):-

\023If 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\024.        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, Cannanore vs. 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 vs.  Paras Laminates AIR 1991 SC  696,  Reserve Bank of India  vs. Peerless General Finance and  Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive  Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji  Harun Abu 1996 (11) SCC 23,  J.K. Synthetics Ltd. vs. Collector of  Central Excise, AIR 1996 SC 3527, State of Karnataka vs.

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Vishwabharati House Building Co-op Society 2003 (2) SCC 412 (at p.  432) etc.

23.     In Savitri vs. 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 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 verybriefly 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.  

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 vs. Prakash P. Hinduja and another 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 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

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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 so wishes, do the investigation vide CBI vs. State of Rajasthan and  another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. 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 of a cognizable  offence registered at a police station vide State of Bihar vs. A.C. Saldanna  (supra).

31.     No doubt the Magistrate cannot order investigation by the CBI vide  CBI vs. State of Rajasthan and another (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 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 Secretary, Minor Irrigation & Rural Engineering Services U.P.  and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide  para 6) , 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\022ble Judges of the High  Courts.