Petitioner challenged delay in investigation of a sexual offence case via writ petition under Article 226. Court held that the petitioner has an adequate remedy by approaching a Magistrate under Section 156(3) CrPC. Writ petition not entertained.
Writ petition not entertained; liberty granted to approach Magistrate under Section 156(3) CrPC.
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GAHC010021922021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/847/2021
BORNALI HAZARIKA
D/O SRI SURENDRA KUMAR HAZARIKA, RESIDENT OF VILLAGE MADHUPUR, WARD NO. 7, BISWANATH CHARIALI, PO AND PS BISWANATH CHARIALI, DIST BISWANATH, ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE PRINCIPAL SECRETARY TO THE HOME DEPARTMENT, ASSAM SACHIBALAYA, DISPUR GUWAHATI 781006
S/O SRI BALA KRISHNA SHARMA RESIDENT OF HOUSE NO. 12. SHANKARDEV PATH WEST KRISHNA NAGAR LALGANESH PO AND PS ODALBAKRA GUWAHATI 781034 KAMRUPM ASSA
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Advocate for the Petitioner : MR. J SARMAH
Advocate for the Respondent : GA, ASSAM
BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 05-08-2022
Heard Mr. J. Sarmah, learned counsel for the petitioner and Mr. N. Goswami, learned Junior Government Advocate, Assam for the respondent nos. 1 – 4.
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relationship. The petitioner has further stated that she belongs to the Scheduled Caste community. When the relationship turned sour between the petitioner and the respondent no. 5, the family members of the respondent no. 5 used to abuse her with abusive language in the name of her Scheduled Caste community. Highlighting all the above facts, the petitioner had lodged a First Information Report [FIR] before the Officer In-charge of All Women Police Station, Guwahati on 04.02.2020. The said FIR had resulted into registration of a crime case being All Women Police Station Case no. 23/2020 under Sections 354A/354C/376/420/506/34 r/w Sections 3[1][xi]/3[1][xii] Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities] Act, 1989. The said crime case has, later on, been transferred to Biswanath Chariali Police Station for investigation. On being so transferred, the said case has been registered as Biswanath Chariali Police Station Case no. 61/2020. During the pendency of the investigation, the respondent no. 5 approached the Court seeking the benefit of pre-arrest bail under Section 438, Code of Criminal Procedure [CrPC], 1973. The respondent no. 5 was granted the benefit of pre-arrest bail under Section 438, CrPC by an order dated 10.11.2020 passed in A.B.554/2020.
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The following action are taken by the present I/O
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difficult to prove a case so requested her to be co-operative with Police in investigation of the case.
Present status of the case:-
The case is pending for further investigation.”
“11. In this connection we would like to state that if a person has a grievance that the
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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] CrPC 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.
“156. [3] 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 CrPC. 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
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can order reopening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna.
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rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?
“2. This Court has held in Sakiri Vasu v. State of U.P. and Ors ., reported in AIR 2008 SC 907 , that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the concerned Magistrate under Section 156[3], Code of Criminal Procedure. If such an application under Section 156[3], Code of Criminal Procedure is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is
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done in the matter. We have said this in Sakiri Vasu [supra] because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
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a proper manner he can ensure proper investigation and also monitor the investigation in the manner, as observed in Sakiri Vasu [supra] and Sudhir Bhaskarrao Tambe [supra].
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the petitioner has an adequate and efficacious remedy under law to challenge the delay in investigation of a registered FIR.
Whether the High Court should entertain a writ petition under Article 226 when the complainant seeks direction to police to complete investigation.
Colour shows how this judgement treated each authority
Sakiri Vasu vs. State of Uttar PradeshFollowed¶41
[2008] 2 SCC 409 · Who else cites this
Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and othersFollowed¶59
[2016] 6 SCC 277 · Who else cites this
5 provisions across 2 enactments
Bornali Hazarika
The State of Assam and 4 Ors
Manish Choudhury
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
