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High Court of Punjab and HaryanaCRM-M/27840/2019disposed of

Abhishek Singh Salaria And ANR v. State Of Punjab And ORS

2019-07-17Mr. Justice Inderjit Singh4 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision: July 17, 2019 Abhishek Singh Salaria and another

...Petitioners

VERSUS

State of Punjab and others

...Respondents

CORAM:

HON'BLE MR. JUSTICE INDERJIT SINGH

Present:

Mr.Suresh Kumar Arya, Advocate for the petitioners.

**** INDERJIT SINGH, J.

Petitioners have filed this petition under Section 482 Cr.P.C. against State of Punjab and other respondents for direction to respondent No.2 to consider the representation dated 07.05.2019 in accordance with law in time bound manner and communicate the same to the petitioners, as the same has not been considered by the officials respondents, which they are bound to do so in discharge of their duty and to give direction to the official respondents to protect life and liberty of the petitioners at the hands of private respondents.

At the time of arguments, learned counsel for the petitioners argued that petitioner Abhishek Singh Salaria has received grievous injury on the little finger and also other injuries but the police has not registered the case and has not taken any action. He also argued that official respondents should have registered the FIR and take action against private

-2respondents.

I have heard learned counsel for the petitioners and have gone through the record.

As regarding the prayer that action of the representation should be taken or FIR should have been registered, I find that the petitioner has the remedy to approach learned Judicial Magistrate under Section 156(3) Cr.P.C. for the above-said relief. The petitioner has also alternative remedy to file criminal complaint. The Hon'ble Supreme Court in Sakiri Vasu v. State of U.P. and others, 2008 (1) R.C.R. (Cr.) 392 has held that the petition under Section 482 Cr.P.C. should not be entertained in routine and it is 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 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

-3which 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.

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.

-428. 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 above judgment has also been relied upon by the Hon'ble Supreme Court in T.C. Thangaraj vs. V. Engammal and others, 2011 (3) R.C.R. (Cr.) 751.

As regarding protection, I find that nothing has been argued of such grievous nature, which may show that there is any threat to the life and liberty of the petitioners and they require security from the State. Therefore, I find that no ground is made out for providing security to the petitioners. As the petitioners have alternative remedies as stated in the above-said case, especially to approach the Judicial Magistrate, therefore, this petition cannot be entertained and the same is disposed of with liberty to the petitioners to approach the Magistrate to avail alternative remedies. July 17, 2019 (INDERJIT SINGH) Vgulati JUDGE Whether speaking/reasoned Yes Whether reportable No