Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 22373 of 2019
Petitioner :- Kamlesh
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Gaurav Tiwari,Mohammad Alam
Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioner; the learned A.G.A. for the respondents 1 to 5; and perused the record.
This petition has been filed for a direction upon the respondents to conduct investigation of Case Crime No. 106 of 2019, P.S. Meerganj, District- Jaunpur in a fair manner and through specialised agency like CBI or CBCID.
It appears that the first information report of Case Crime No. 106 of 2019 (supra) was lodged by the petitioner in respect of death of his son due to ante-mortem injuries by expressing suspicion against two named persons and by also apprehending that a murder case was being shown as a case of accident.
On 31.10.2019, the Court had sought the presence of the investigating officer to ascertain whether the CD of the autopsy was in his possession so as to consider whether the CD be sent to another institute to ascertain whether the victim died on account of injuries attributable to an accident or it was a case of homicide.
Pursuant to the above order, the investigating officer is present.
The learned A.G.A. has pointed out that in the post-mortem report, the doctor has noticed the anti-mortem injuries on the body and has clearly opined that the deceased died due to hemorrhage and shock as a result of the anti-mortem head and neck injuries. The doctor has not formed any opinion in the Autopsy report whether the injuries were sustained in an accident or the injuries were homicidal in nature and therefore the matter would have to be investigated to find out the real cause of the injuries.
We have also carefully perused the averments made in the writ petition.
We do not find any specific allegation as to why the investigating agency would be manipulating the evidence or not investigating the matter properly. Moreover, in case the petitioner has any grievance as regards the manner in which the investigation is being conducted, he can always raise his grievance before the Chief Judicial Magistrate/Magistrate concerned.
The apex court in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, held as follows:
"2. This Court has held in Sakiri Vasu v. State of U.P., 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 Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC 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 done in the matter. We have said this in Sakiri Vasu case 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.
3.We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation."
The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) CrPC has also been recognized in the decision of the apex court in the case of T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu's case (supra) it has been observed as follows:
"12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.)"
In view of the law noticed above, we dispose off this petition with liberty to the petitioner to invoke the power of the Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the apex court as noticed above, if required and if so advised.
Order Date :- 27.11.2019 Sunil Kr Tiwari