High Court of Punjab and HaryanaCRM-M/11712/2017disposed of

Jassa v. State Of Punjab & ORS.

2017-04-06Mr. Justice Harinder Singh Sidhu6 pages

In the High Court of Punjab and Haryana at Chandigarh ......

Criminal Misc. No.M-11712 of 2017 .....

Date of decision:6.4.2017 Jassa

...Petitioner

State of Punjab and others

...Respondents

....

Coram:

Hon'ble Mr. Justice Inderjit Singh .....

Present:

Mr. D.K. Bhatti, Advocate for the petitioner. .....

Inderjit Singh, J.

This criminal miscellaneous petition has been filed by the petitioner under Section 482 Cr.P.C. with the prayer to direct the official respondents to hold an independent inquiry into the matter not below the rank of Inspector General of Police and to register a case under the penal provisions, so as to punish the accused Balwinder Singh under the SC/ST Act for hurling abuses to the petitioner against his caste and religion, as has been detailed in the representation dated 2.2.2017 (Annexure-P.3). It has been further prayed that the official respondents may also be directed to submit the inquiry report within stipulated period which may be fixed by this Court so that the life and liberty of the petitioner can be saved. It has been further prayed that the respondents may be directed to provide protection to the life and liberty of the petitioner and his family, as the accused-respondent No.5 is constantly hurling threats to the petitioner for eliminating him and also his family in case the petitioner does not withdraw

[2] the complaints so made to the higher officers of the Police Department. As regards threat to life and liberty of the petitioner, there is nothing on the record to show any threat to the life and liberty to the petitioner. Further more, the representation (Annexure-P.3) given by Jassa to the Senior Superintendent of Police, Kapurthala, no where shows that there was any threat to the present petitioner. Therefore, there is nothing on the record to show that there is any serious threat to the life and liberty of the present petitioner, hence no ground is made out for giving direction to provide any security for the protection of life and liberty of the petitioner. At the time of arguments, learned counsel for the petitioner mainly argued that the Police is not registering the case against respondent No.5.

From the record, I find that the petitioner is seeking for registration of case against private respondent. In Sakiri Vasu v. State of U.P. and others, 2008 (1) R.C.R. (Cr.) 392, the Hon'ble Supreme Court has held 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.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

[3] 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.

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

[4] confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.

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

[5] 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."

The law laid down in this judgment has also been relied upon by the Hon'ble Supreme Court in T.C. Thangaraj v. V. Engammal and others, 2011

(3) R.C.R. (Cr.) 751.

[6] Therefore, in view of the law laid down in Sakiri Vasu v. State of U.P. and others (supra) T.C. Thangaraj v. V. Engammal and others (supra), this petition under Section 482 Cr.P.C. is not liable to be entertained and the same is disposed of with liberty to the petitioner to avail the alternative remedy before the Magistrate etc. as held in these cases. April 6, 2017.

(Inderjit Singh) Judge *hsp* NOTE:

Whether speaking/reasoned:

Yes Whether reportable: