LAW FOR ALL

Constitution of India, 1950-Article 226-Writ Petition-Seeking investigation by CBI-Of a case, investigation whereof already conducted by railway Police and Army authorities-Maintainability of-Held: Not maintainable-An aggrieved person has no right to claim investigation of a case by any particular agency of his choice-He can only claim proper investigation-Alternative remedy of approaching u/ss. 36, 154 (3), 156 (3) and 200 Cr. P.C. is available to the person, if his FIR is not registered by the police-Availability of alternative remedy is not an absolute bar to a writ petition-But if available, High Court should not ordinarily interfere-Supreme Court and High Court also have power under Article 136 or Article 226 if the Constitution to order investigation by the CBI-But that should be done only in rare and exceptional case-Code of Criminal Procedure, 1973-ss. 36, 154 (3), 156(3), 200 and 482-Constitution of India, 1950-Article 136. Code of Criminal Procedure, 1973-s. 156 (3)-Power under-Of Magistrate-Scope of-Discussed. Doctrines/Principles-Doctrine of implied power. The son of the appellant was an Officer in the Indian Army. His dead body was found at Mathura Railway Station. G.R.P. investigated the matter and gave its report stating that the death was caused due to accident or suicide. Army officials held a Court of Inquiry. It was concluded therein that the deceased had committed suicide at the railway track. The appellant made a representation to the Chief of the Army Staff alleging that it was a case of murder and not suicide. As a result another Court of Inquiry was held. Wherein it was concluded that it was a case of suicide. The appellant then filed a writ petition, seeking direction that the matter be ordered to be investigated the Central Bureau of Investigation. The petition was dismissed. Hence the present appeal. Citation: 2008 AIR 907 ,2007(12 )SCR1100,2008(2 )SCC409 ,2007(13 )SCALE693 ,2007(13 )JT466- Dismissing the appeal, the Court HELD: 1.1. In the instant case, 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 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. 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. [Paras 34 and 10] CBI and ANOTHER v. Rajesh Gandhi and ANOTHER, (1997) Cr.L.J 63, relied on. 1.2. 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. [Para 26] 2.1. If 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. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. [Paras 11 and 15] Mohd. Yousuf v. Smt. Afaq Jahan and ANOTHER, JT (2006) 1 SC 10; Dilawar Singh v. State of Delhi, JT (2007) 10 SC 585 ; CBI v. State of Rajasthan and ANOTHER, (2001) 3 SCC 333; R.P. Kapur v. S.P. Singh, AIR (1961) SC 1117; and State of Bihar v. A.C. Saldanna, AIR (1980) SC 326, relied on. 2.2. It is clarified that even if an FIR has been registered and 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 other order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. The words `as abovementioned' occurring in s.190 Cr.P.C. obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station. 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). [Paras 13, 14 and 27] Union of India v. Prakash P. Hinduja and ANOTHER, distinguished. 2.3. The power vested 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 under Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report. State of Bihar v. A.C. Saldanna, AIR (1980) SC 326, relied on. 2.4. 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. 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. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. [Paras 18, 19 and 21] ITO, Cannanore v. M.K. Mohammad Kunhi, AIR (1969) SC 430; Union of India v. Paras Laminates, AIR (1991) SC 696, Reserve Bank of India v. Peerless General Finance and Investment Company Ltd; AIR (1996) SC 646; Chief Executive Officer AND Vice Chairman Gujarat Maritime Board v. Haji Daud Haji Harun Abu, [1996] 11 SCC 23, J.K. Synthetics Ltd. v. Collector of Central Excise, AIR (1996) SC 3527, State of Karnataka v. Vishwabharati House Building Co-op Society, 2003 (2) SCC 412 and Savitri v. Govind Singh Rawat, AIR (1986) SC 984, relied on. Statutory Construction (3rd Edition) by Crawford, referred to. 2.5. Although Section 156(3) is very briefly worded, it is wide enough to include all such incidental powers in a Magistrate which are necessary for ensuring a proper investigation. 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., they are implied in the above provision. [Paras 17 and 24] 3. 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. [Para 28] 4. No doubt the Magistrate cannot order investigation by the CBI but this Court or the High Court has power under Article 136 or Article 226, as the case may be, 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. [Para 31] CBI v. State of Rajasthan and ANOTHER, [2001] 3 SCC 333; Secretary, Minor Irrigation and Rural Engineering Services U.P. and OTHERS v. Sahngoo Ram Arya and ANOTHER, [2002] 5 SCC 521, relied on. 5. It is not clear whether the report by G.R.P. Mathura 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 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. [Para 35] Dinesh Kumar Garg for the Appellant,.