Thursday, November 17, 2011

Certfication ceremony of newly elected Governing Council of Oudh Bar Asociation

Haider Ajaz

Advocate

Thursday, November 3, 2011

Landmark judgment on 156 (3) Cr. P.C.

Brief

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.

Citation

Sakiri Vasu vs State Of U.P. And Others on 7 December, 2007 Author: M Katju Bench: A Mathur, Mark, E Katju CASE NO.: Appeal (crl.) 1685 of 2007 PETITIONER: Sakiri Vasu RESPONDENT: State of U.P. and others DATE OF JUDGMENT: 07/12/2007 BENCH: A.K. Mathur & Markandey Katju

Judgement

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

thereafter. .

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 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 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. 432) etc.

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 (supra).

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 suicide.

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 Hon ble Judges of the High Courts.

Received with thanks from Lawyers Club India

Haider Ajaz

Advocate

OUR RIGHTS WHEN ARRESTED / IN POLICE CUSTODY

(3 Poster Series)

(Poster I)

Investigation

· Investigation by any police officer of any male below 15 years or any woman can be made only at the place of residence (Sec.160 Cr. P.C)

Arrest

· Persons arrested must be informed of the full particulars of the offence committed and the grounds for arrest. (Sec.50 Cr. P.C. & Art 22 (1) - Constitution of India)

· All persons arrested / detained must be served a custody memo as per Supreme Court directions in D.K. Basu Vs State of West Bengal.

· Persons arrested cannot be detained for more than 24 hours in Police Custody (Sec.56/57 Cr.P.C. & Art 22 (2) Constitution of India.

· An Accused person is entitled to a copy, free of cost, of the Police Final Report, First Information Report (FIR), statements of all persons whom prosecution proposes to examine as its witnesses (Sec 207, Sec. 154, Sec. 161 [3]) confessions and statements if any recorded and any other documents, relevant extracts forwarded to the magistrate.

· The arrested person has a right to consult and be defended by a legal practitioner of his choice (Article 22 (1) of the Constitution of India).

· If the arrested person is poor, he can get free Legal Assistance from the Legal Services Authority (Art 39 A Constitution of India).

· The person arrested, has a right to be examined by a registered medical practitioner (Sec.54) to disprove, the commission of Offence or to prove the ill-treatment of the police or any other suitable reason. (S.54 Cr. P.C).

· In the case of a woman the medical examination has to be made only by a female registered medical practitioner.

· Police are empowered by Sec.41, 42, 151 and 432 (3) of Cr.P.C. to arrest without a warrant.

· Arrest should not be made on mere suspicion (145 Cr. P.C).

· The arrested person is entitled for compensation for groundless arrest / illegal detention.

· The registering of the FIR is not a condition precedent to grant anticipatory bail.

· Warrant of arrest should be in writing and signed by the Presiding officer of the court with seal. Substance of the warrant should be shown or intimated to the person to be arrested.

(Poster II)

Police Custody

· Custody includes surrender of accused before the court and submissions to directions.

· A Magistrate may order for the remand of the arrested person to police custody u/s 167 (3) of the Cr.P.C. The Magistrate should be fully satisfied that there is good ground to remand the accused to police custody.

· If a person is released on bail he cannot be remanded to police custody.

· When remand to police custody is granted (subject to Supreme Court orders in D.K. Basu).

I. the accused in police custody can be kept in police lock - up.

II. can be taken to any place for purposes of investigation within this period.

III. can be kept at any place for purposes of investigation within this period.

· there should always be an entry in the Daily Diary (i.e. General Diary) when accused is taken out of police lock-up or readmitted;

· if the accused falls ill in police lock-up, he must be given medical aid or treatment admitted for in a hospital.

· if an accused dies in police custody, officer - in - charge shall immediately inform the nearest Executive Magistrate empowered to hold inquests, for investigation u/s 176 Cr.P.C. and intimated to the National Human Rights Commission within 24 hours.

· detention of accused for longer than 24 hours when not produced for remand and beyond period of remand without orders of Magistrate is illegal and Police Officer is liable u/s 342 IPC and u/s 29 of the Police Act.

· Accused may engage a counsel during proceedings of remand and accused may raise an objection that the police is not entitled to custody.

Bail

· Person accused of a bailable offence has right to be released on bail. It is the duty of the police officer incharge to intimate this. Bail not Jail is the Rule of Law.

· An accused person surrendering before the Magistrate has a right to bail or demand judicial custody.

· The provision of bail to women, sick and old age persons is given priority subject to the nature of the offence.

· Once the accused is granted bail by invoking Sec. 205 Cr.P.C. he need not attend the court (unless it is a condition of bail) before charegesheet is filed and process issued .

· If no charge -sheet is filed before the expiry of 60/90 days as the case may be, the accused in custody has a right to be released on bail.

· If the arrested person is remanded to judicial custody by the Magistrate on Sundays or holidays, the bail application should be considered on the Sunday or the holiday itself.

· In non-bailable offences, the Magistrate has the power to release on bail without notice to the other side if charge sheet is not filed within a period of sixty days.

(Poster III)

SUPREME COURT JUDGEMENT ( 1996)

D.K. BASU Versus State of West Bengal

Requirements to be followed in all cases of arrest or detention

The Police personnel carrying out the arrest and handling the interrogation should bear accurate, visible and clear identification. The particular of all such police personnel must be recorded in a register.

· That the police officer carrying out the arrest of the arrestee shall prepare a memo or arrest at the time of arrest and such memo shall be attested by at least one witness.

· A person who has been arrested or detained shall be entitled to have one friend or relative or other person known to him.

· The time, place of arrest and venue of custody must be notified by the police where the next friend or relative lives through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

· The person arrested must be made aware of this right to have someone informed of his arrest or detention

· An entry must be made in the diary at the place of detention regarding the arrest of the person disclosing the name of the next friend and the names and particulars of the police officials in whose custody the arrestee is.

· The arrestee should be also examined at the time of his arrest and major and minor injuries, if any present on his / her body, must be recorded at that time. the “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

· The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody

· Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

· The arrestee may be permitted to meet his lawyer during interrogation.

· A police control room should be provided at all district and state headquarters, where information regarding the arrest shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest.

· Information regarding the arrest shall be communicated to all district and state headquarters by the officer causing the arrest, within 12 hours of effecting the arrest.

· The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and NEED TO BE STRICTLY FOLLOWED.

Powers of Magistrates

1. All magistrates have the duty to inspect any police station, prison, and any other custodial institution at any time. (Supreme Court Judgement in Sunil Batra Vs Delhi Prison Administration II AIR, 1980 SC 1579 at PP 1598 / 99.)

2. A magistrate may himself arrest or order any person to arrest an offender (Section 44 CrPC) if the offence is committed in his / presence or within her local Jurisdiction.

3. The magistrate shall on request of the accused order for an examination by a doctor during the period of detention.[ Section 54 CrPC]

4. An accused shall not be detained by a police officer for more than 24 hours without the order of remand by the Magistrate.[ Section 57 CrPC]

5. Officer’s incharge of the police station shall report to the Magistrate, the cases of all persons arrested. [Section 58 CrPc]

6. No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a magistrate. [Section 59 CrPC]

7. A magistrate can issue a search warrant for persons wrongfully confined and direct for search and if found shall be immediately taken before a magistrate.[ Section 97 CrPC]

8. The magistrate can make an order upon a complaint with regard to abduction or unlawful detention of a woman or a girl child and order for an immediate restoration of such woman or a girl child to their liberty. [Section 98 CrPC]

9. A magistrate may order for maintenance of wife, children, parents and dependents. [Section 125 CrPC]

10. A magistrate shall order for removal of unlawful obstruction from any river, channel or other public place on receipt of report from the police and recording such evidence.[Section 133 CrPC]

11. A magistrate is empowered to order investigation of any cognizable case and direct them to file a report following which to hold an inquiry into the same. [Section 156 CrPC]

12. A magistrate may record confession or statement in the course of investigation and satisfy himself that the statement is voluntary. [Section 164 CrPC]

13. A magistrate may release an accused on bail if the final report (charge sheet) has not been filed by the prosecution before the court within 60 days – 90 days (Section 167 CrPC)

14. A magistrate may inspect all police records of a case to aid in an inquiry or trial (Section 172 CrPC)

15. A magistrate shall hold inquiry when there is a doubt regarding the cause of the death of a person (Section 174 CrPC) or a woman commits suicide within seven years of her marriage.

16. A magistrate shall inquire into the death of a person in police custody and shall record evidence and allow relatives of the deceased to remain present at the enquiry (Section 176 CrPC) including enforcement of the Supreme Court order in D.K.Basu Vs State of West Bengal regarding arrest / custody memo.

17. A magistrate can take cognizance upon receiving a complaint from any person, police report or on his own knowledge of an offence committed (Section 190 CrPC).

18. After examination a magistrate of competent jurisdiction shall try and frame charges on the accused in writing and shall explain the same to him (Section 240 CrPC).

19. Based on recorded evidence, a magistrate shall discharge the accused if no case is made against him (Section 245 CrPC)

20. A magistrate shall assign a pleader through the legal aid at the expense of the state for defending the accused who has no means to defend himself (Section 304 CrPC)

21. A magistrate shall postpone a case if he finds an accused person insane, and order a doctor to examine him and ensure for his safe custody. (Section 328 CrPC)

22. A magistrate may order including the loss of time and inncurance of loss compensation to a person arrested by a police officer without sufficient grounds and the same shall be collected from the complainant (Section 358)

23. A magistrate can record dying declaration of a person
(Section 32 / Indian Evidence Act)

Women’s Rights in Custody

In Police Custody………