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2014 DIGILAW 1789 (RAJ)

Rajpal @ Rajkumar v. State of Rajasthan

2014-11-11

RAGHUVNDRA S.RATHORE, V.K.MATHUR

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Hon'ble RATHORE, J.—This Habeas Corpus Petition has been filed by Rajpal @ Rajkumar invoking the extra ordinary jurisdiction under Article 226 of the Constitution of India with the prayer that the respondents be directed to recover his wife and produce her before the Court. He has further prayed that appropriate action be taken against respondent Nos. 7 to 9. 2. It has been averred in the petition that in the mid night of 15th of July, 2014 when the family of the petitioner was sleeping in their house at Chirawa, the respondents Rohitash and Hemraj came and abducted his wife. Thereafter the petitioner with his family members tried to search the detenue and returned home after a quite some time. It is also mentioned in the petition that the family members of the petitioner had received threatening on the phone. The incident was then reported to the police but no investigation was conducted. Later on, another report was sought to be filed by the mother of the petitioner at police station Chirawa on 9th August, 2014 but without any success. Ultimately, the petitioner had to file an application on 11.3.2014, under Section 156(3) Cr.P.C., on which appropriate directions were issued by Judicial Magistrate, Chirawa to the concerning police station for registration of the report and to investigate the matter. In consequence thereof an FIR No. 421/2014 came to be registered on 19.9.2014 for the offences under Sections 366, 504 and 506 IPC (Annexure 2). 3. The grievance of the petitioner is that despite of lodging of the report, the police has neither investigated into the matter nor has so far recovered his wife. It is also averred in the petition that the accused persons are very much in the village but the police has not taken any action against them. Thereafter representations were also given to the higher police authorities, MLA etc. but without any result. Therefore, the present habeas corpus petition has been filed by the petitioner, with the aforesaid prayer. 4. There is no dispute about the fact that in the instant case, the petitioner himself had approached the Magistrate concerned on 11.8.2014 and moved an application under Section 156(3) Cr.P.C. Thereupon an appropriate order had been passed by the learned Magistrate and in compliance thereof a First Information Report (421/2014) had been registered at Police Station, Chirawa. 4. There is no dispute about the fact that in the instant case, the petitioner himself had approached the Magistrate concerned on 11.8.2014 and moved an application under Section 156(3) Cr.P.C. Thereupon an appropriate order had been passed by the learned Magistrate and in compliance thereof a First Information Report (421/2014) had been registered at Police Station, Chirawa. It is said by the petitioner that since the lodging of the report, police is not investigating the matter and not taking any steps in respect of recovery of his wife, who is missing since 15th of July, 2014. In such a situation, in our considered opinion, the remedy for the petitioner is to first approach the concerning Magistrate for taking further action in exercise its powers under Section 156(3) Cr.P.C. The said provision gives implicit powers to the Magistrate to supervice the investigation which has been initiated under his direction under Section 156(3) Cr.P.C. and also to call for a periodical report in respect of progress of the investigation. So far as inaction on the part of the police in not recovering the detenue is concerned, it is for Magistrate to exercise powers under Section 97 and 98 Cr.P.C., on an appropriate application in that regard to be filed by the complainant. 5. The powers of the Magistrate in respect of supervising the investigation, under the provisions of Section 156(3)Cr.P.C. has been elaborately considered and the principle has been laid down by the Hon'ble Supreme Court in the case of Sakiri Vasu vs. State of Uttar Pradesh and others (2008) 2 Supreme Court Case 409 = 2008(1) RLW 136 (SC). The relevant paras of the judgment read 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 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC 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. 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." "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 investigation 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. J.A.C. Saldanha AIR 1980 SC 326 (para 19)." "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 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 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 police officers concerned, and if that is of no avail, by approaching the concerned Magistrate under Sec. 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 are 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. 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 police officers concerned, 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." 6. Besides, this petition under Article 226 of the Constitution has to go also for the reason that the petitioner has already availed the alternative remedy under the Code of Criminal procedure and therefore this present is not maintainable. As given above, the petitioner has a further remedy under the provisions of Cr.P.C. for redressal of his grievance if the police is not investigating the matter of recovering of the detenue. In the case of Sakiri Vasu (Supra) the Hon'ble Supreme Court has further laid down that in all such cases the complainant is not to rush-up to the High Court and file a petition under Section 482 Cr.P.C. Further, "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 such a grievance, remedy lies under Sections 36 and 154(3) Cr.P.C., before the police officers concerned, and if that is of no avail, then under Section 156(3) Cr.P.C. before the Magistrate." 7. Therefore, in view of the above facts and circumstances of the case and the principle of law laid down by the Hon'ble Apex Court, we deem it just and proper to dispose of this habeas corpus petition with the following directions:- 1. That the petitioner shall immediately approach to the Magistrate concerned and file an application giving out his grievance and making a prayer for seeking appropriate direction against police to take steps in regard to investigation and recovery of the detenue. 2. That the petitioner shall immediately approach to the Magistrate concerned and file an application giving out his grievance and making a prayer for seeking appropriate direction against police to take steps in regard to investigation and recovery of the detenue. 2. On filing of such application, as aforesaid, the Magistrate concerned shall immediately consider the same and pass appropriate orders to the SHO of the police station concerned so as to submit progress report in respect of investigation and the steps taken for recovery of the detenue. The Magistrate shall also call for a periodical progress report with regard to the investigation and for immediate recovery of the detenue, from time to time and till the conclusion of the same. 3. The petitioner, if need arises, may move an application under Sections 97 and 98 Cr.P.C. before the Magistrate concerned who shall thereupon take immediately pass an appropriate direction to the police for doing the need full. 4. That the Magistrate concerned is directed to ensure that the detenue is recovered at the earliest and in this regard monitor the same and call upon the SHO/Investigation officer, whenever necessary, to seek explanation to ensure that recovery of the detenue is made expeditiously.