Appeal (crl.) 1685 of 2007
State of U.P. and others
DATE OF JUDGMENT: 07/12/2007
A.K. Mathur & Markandey Katju
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 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 & 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:
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
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:
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 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
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, 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.
Vishwabharati House Building Co-op Society 2003 (2) SCC 412 (at p.
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
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
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
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 Honble Judges of the High