Punjab-Haryana High Court
Sukhwinder Kaur And Anothers vs State Of Punjab And Others on 27 April, 2021140 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRWP No.3876 of 2021
Date of decision: 27.04.2021
Sukhwinder Kaur and another …. Petitioners
Versus
State of Punjab and others …. Respondents
Coram: Hon’ble Mr. Justice B.S. Walia
Present : Mr. Inder Pal Singh, Advocate for the petitioners.
***
B.S. Walia, J. (VC)
[1] Case is being taken up for hearing through Video
Conferencing due to Covid-19 pandemic.
[2] Prayer in the petition under Article 226 of the Constitution of
India is for the issuance of directions to the official respondents to protect
the life and liberty of the petitioners and for issuance of directions to
respondent Nos.1 to 4 to conduct investigation by forming SIT headed by
an officer not below the rank of IPS/SP and also by issuing directions to
the official respondents to restrain the private respondents from causing
harm to the life and liberty of the petitioners and their family members.
Representation Annexure P/2 & P/3 were submitted. Apparently, no
action has been taken by the police on the same, therefore, the instant
petition in the form of a petition seeking protection of life and liberty.
However, perusal of representation (Annexure P-3) reveals that there is
some dispute between petitioner No.2 and his father and sister-in-law,
locks of the petitioners house were broken and some articles were
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removed from there, and despite the petitioners having made
representation, no action having been taken in respect thereto.
[3] Notice of motion to respondent No.4 only.
[4] Mr. Hittan Nehra, learned Addl. A.G., Punjab, who is
present, accepts notice and states that he has no objection to the prayer
made by learned counsel for the petitioners for protection of their life and
liberty but for action qua complaint Annexure P/3, learned Additional
Advocate General contends that the petitioners be relegated to avail their
remedy before the learned trial court.
[5] I have considered the submissions of learned counsel. As the
main prayer of the petitioners is for protection of their life and liberty at
the hands of respondent Nos.5 to 8, the instant petition is disposed of by
directing respondent No.4 to consider and decide representation
(Annexure P-2) dated 06.05.2020 in accordance with law and take such
action in respect thereto, as may be warranted keeping in view the
assessment of threat perception to the petitioners at the hands of
respondent Nos.5 to 8.
[6] As regards, the prayer of the petitioners viz a viz the dispute
between petitioner No.2 and his father and sister-in-law in respect of
which the petitioners claim to have made a representation (Annexure P/3)
to the SSP, Hoshiarpur but qua which no action has been taken, the writ
petition is disposed of in the light of decision of Hon’ble the Supreme
Court in ‘Sakiri Vasu versus State of UP and others’, 2008(2) SCC 409.
Relevant extract of the same is reproduced as under:-
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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 (3) Cr.P.C., then
he can approach the Superintendent of Police 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 Section 156
(3) Cr.P.C. before the learned Magistrate concerned. If
such an application Section 156 (3) Cr.P.C. 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 & 13. xxx xxx xxx
14. Section 156 (3) Cr.P.C. states:
Any Magistrate empowered under Section 190 may order
such an investigation as above mentioned. The words ‘as
abovementioned’ obviously Section 156 (1), which
contemplates investigation by the officer in charge of the
Police Station.
15. Section 156 (3) Cr.P.C. 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
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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) Cr.P.C. 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
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employ such means as are essentially necessary to its
execution.
19. to 23. xxx xxx xxx .
24. In view of the abovementioned legal position, we
are of the view that although Section 156 (3) Cr.P.C. is
very briefly worded, there is an implied power in the
Magistrate under Section 156 (3) Cr.PC. 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) Cr.P.C.
26. If a person has a grievance that his FIR has not
been registered by the police station his first remedy is to
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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 Cr.P.C. 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 Cr.P.C. 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) Cr.P.C. 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.
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[7] In the light of the position as noted above, respondent No.4 is
directed to decide representation (Annexure P-2) and take such action in
respect thereto in accordance with law on assessment of threat perception
to the petitioners at the hands of respondent Nos.5 to 8, while qua
representation Annexure P/3 dated 15.05.2020 and the prayer seeking
action in respect thereto, the petitioners are directed to avail their remedy,
in accordance with law laid down by Hon’ble the Supreme Court in
‘Sakiri Vasu’s case (supra).
[8] Petition disposed of with the aforementioned directions.
(B.S. Walia)
Judge
27.04.2021
‘Rajneesh/Amit’
Whether speaking/reasoned : Yes/No.
Whether reportable : Yes/No.
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