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2014 DIGILAW 1114 (RAJ)

Om Prakash v. State of Rajasthan

2014-05-09

RAGHUVENDRA S.RATHORE, V.K.MATHUR

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JUDGMENT 1. This Habeas Corpus Petition has been filed by the petitioner Om Prakash with the prayer that the respondents be directed to recover his daughter, namely Neelam Joshi. It is however stated that the girl is missing since 21st March, 2014. Thereafter, the Regular First Information Report was got registered at Police Station Murlipura, Jaipur (South) on 21st March, 2014 itself for the offence under Section 363 and 366 IPC. 2. The grievance of the petitioner is that after lodging of the FIR, the investigation has not make any progress. 3. When the petitioner came with the case that his child is missing and thereafter he had lodged a Report but the police was not investigating the matter, then he ought to have first availed the remedy under the Code of Criminal Procedure. In a case, where either a Report has not been lodged by the Police or after lodging the same, no progress has been made in the investigation, then in that situation the informant can approach the Police Authority or the concerned Magistrate for redressal of the same. On having approached the Police Authority, if no result is forthcoming, then the Magistrate concerned may be requested for passing an appropriate order to the Police for submitting the Progress Report in respect of the Investigation in the matter. Approaching the High Court in such a situation, either under Article 226 of the constitution of India or under Section 482 Cr.P.C. is not the proper remedy. This view has been enunciated by the Hon'ble Supreme Court in the case of Sakiri Vasu v. State of Uttar Pradesh & Ors., (2008) 2 SCC 409 . The relevant paras are as under: "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.PC, then he can approach the superintendent of Police under Section 154(3) Cr.PC 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.PC before the learned Magistrate concerned. 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.PC 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. 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 AIR 1980 SC 326 (para 19). 24. 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. 25. 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 ora 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.RC. 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 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. 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 Section 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." 4. In view of the aforesaid facts of the case and the principles of law laid down by the Hon'ble Supreme Court in the case of Sakiri Vasu (supra), we dispose of this habeas corpus petition with the following directions: (i) that the petition shall approach the Magistrate concerned by way of an application with request for calling of the report from the police station in respect of progress made in the investigation. (ii) that the Magistrate concerned shall call a periodical report from the police station so as to supervise and monitor the investigation till the conclusion of the same is filed by the police before him. (iii) in the event of recovery of the missing girl, the petitioner shall be at liberty to move an application for restoring her custody to him, as being her natural guardian. Writ Petition Disposed of with Above Directions. *******