Hem Singh and Another Vs State of Hp and Ors.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No. 750 of 2025 Date of Decision : 21.08.2025

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Hem Singh & Another ....Petitioners Versus State of H.P. and others ....Respondents

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Coram

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Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?¹ No

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For the petitioners	: None.
For respondents No. 1 to 3/	: Mr. Jitender Sharma, Additional
State	Advocate General.
For the respondent No. 4	: None.

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Rakesh Kainthla, Judge (Oral)

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Notice. Mr. Jitender Sharma, learned Additional Advocate General, appears and waives service of notice on behalf of respondents No. 1 to 3/ State.

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The petitioners have filed present petition under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, against the respondent No. 3 for seeking direction to investigate the matter and to file the challan before the Court.

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It was held by Kerala High Court in Vasanthi Devi

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versus S.I. of Police and anr., 2008 SCC online Kerala 47 that the

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1 Whether reporters of Local Papers may be allowed to see the judgment?Yes

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2

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Magistrate has the power to order the registration of the FIR and monitor the investigation under Section 156(3) of Cr.P.C.; therefore, the petition under Section 482 of Cr.P.C. for such directions is not maintainable. It was observed:

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“11. Later, after adverting to the principle that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective, the learned Judges construed the power under Section 156(3) Cr.P.C. to include an implied power to direct a proper investigation. In para.24 the principle is stated with precision in the following words "In view of the above-mentioned legal position, we are of the view that although Section 156(3) is very briefly 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."

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The learned Judges elaborated on the above matter with a specific purpose. Their Lordships were aware of the practice of persons rushing to the High Court with Writ Petitions or petitions under Section 482 Cr.P.C. The learned Judges want to make it clear that ordinarily such a practice should not be encouraged and the High Courts must refuse to interfere with such matters. In para.25 the following lines appear.

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"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

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ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternative remedy."

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To dispel, any impression that the Magistrate does not have powers to ensure a proper investigation, their Lordships proceeded further and stated so in para.27 in the following words.

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"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 his 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."

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After observing that such an alternate remedy is available to such a petitioner, the learned Judges in para.28 stated thus:

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"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."

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XXXXXXXX

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Having said so, it has to be considered as to whether this writ petition filed by the petitioner deserves to be entertained. Even following the decision in Sakiri Vasu as already noted in paragraph 25, the mandate is only that this court should not encourage the practice and should ordinarily refuse to interfere when applications are filed under Section 482 Cr.P.C and Article 226 of the

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Constitution complaining about the inadequate quality of investigation. Jurisdiction is not taken away. The question is not one of lack of jurisdictional competence. The challenge is only one of identifying the fit case where notwithstanding the existenceof powers for the Magistrate under Section 156(3) Cr.P.C, this court should invoke the powers under Section 482 Cr.P.C and Article 226 of the Constitution.

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Having considered all the relevant aspects in this case, I am certainly of the view that this is a fit case where the petitioner must be left to seek appropriate directions from the learned Magistrate under Section 156(3) Cr.P.C. She must air her grievance that a proper investigation is not being conducted before the learned Magistrate concerned. The learned Magistrate, needless to say, must pass appropriate orders.”

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Therefore, no such direction can be issued by this Court in

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the exercise of its inherent jurisdiction. Hence, the instant petition is dismissed, so also the pending miscellaneous application(s), if any.

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(Rakesh Kainthla) Judge

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21^st August, 2025 (Anurag)

Hem Singh and Another v. State of Hp and Ors.

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Hem Singh and Another v. State of Hp and Ors.

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