The petitioner herein is the defacto complainant in Crime No. 1299/2013 of Kondotty Police Station, Malappuram district, for offences registered under Sections 341, 323, 354, 354A and 294(b) of the IPC. It is averred that the accused in the above case is a Civil Police Officer, who is working as the Driver of the Circle Inspector of Police, Nallalam, and that on account of the influence exerted by him, the 1st respondent-investigating officer, (Sub Inspector of Police, Kodotty Police Station), has referred the case. The detailed averments in the Crl. M.C. as to the version of the petitioner regarding the above incidents and the alleged commission of offence by the accused need not detain the attention of the court to such details, as it is not now necessary for the disposal of this matter. 2. It is the case of the petitioner that the 1st respondent had closed the investigation and filed the refer report and that the petitioner has not been served a copy of the refer report and she could not get any reasonable opportunity of being heard before the jurisdictional Magistrate concerned on the question of the acceptance or otherwise of the above said refer report. Thereupon, the petitioner filed Criminal Miscellaneous Petition No.2399/2014 before the Judicial First Class Magistrate Court, Malappuram, under Section 156(3) of the Cr.P.C. praying for an effective investigation in the matter. The learned Magistrate, as per impugned Annexure A4 dated 26.6.2014, has closed the petition on the ground that the investigation in this case is already over and the refer report is filed. In this view of the matter, the petition is to be closed. The impugned Annexure A4 order dated 26.6.2014 given on pages 21 and 22 of this Crl.M.C. reads as follows:
This is a petition filed u/s 156(3) of Cr.P.C. to direct the respondent for a proper investigation in the above matter.
2. The petition averments in brief is as follows: Petitioner is the defacto complainant in crime No. 1299/13 of Kondotty police station. The offences alleged against the accused are u/s 341, 323, 354(A) 294(b) of IPC.
3. The petitioner and her husband were admitted at the hospital on 26.10.13 because of suffering from severe pain and injury caused by an assault carried out by the accused. Even though an FIR was registered after knowing the whereabouts of the accused, who is a police driver working at the office of C.I. Of police, Nallalam the respondent began to act against the petitioner and her husband and no further steps were taken against the accused, but protected him in all means. The investigation conducted in the above case was not proper and fair and has been influenced by the accused by utilizing his colleagues and office. Hence this petition filed.
4. Notice given to APP he has filed report stating that refer report filed in this matter.
5. Points that arise for consideration are:-
I. Whether the petition is liable to be allowed ?
6. The point:- On going through the record it can be seen that the investigation in this matter is already over and a refer report is filed. In view of the aforesaid reasoning this petition is closed.”
3. Sri.Sunny Mathew, the learned counsel for the petitioner would submit that the learned Magistrate has committed jurisdictional error in taking the view as the one in Annexure A4 order as it is without appreciating the ratio residenti of the Apex Court in Sakiri Vasu v. State of U.P. reported in 2008 (1) KLT 724 (SC) and accordingly, it is in the background of these facts and circumstances that the petitioner has filed the above Criminal Miscellaneous Case with the prayers to quash the impugned Annexure-A4 dated 26.6.2014 passed by the Judicial First Class Magistrate Court, Malappuram, in the aforementioned Criminal Miscellaneous Petition No.2399/2014 and for a further direction to pass an order in the said Criminal Miscellaneous Petition No.2399/2014 on the file of the Judicial First Class Magistrate Court, Malappuram.
4. Heard Sri.Sunny Mathew, the learned counsel for the petitioner and the learned Public Prosecutor appearing for the prosecution.
5. In the case between Sakiri Vasu v. State of U.P. reported in 2008 (1) KLT 724 (SC), the Apex Court held that under the powers conferred under Section 156(3), the jurisdictional Magistrate has got the necessary powers for ensuring proper investigation including the power to order registration of FIR and ordering proper investigation, if a proper investigation has not been done and is not being done and that the court's jurisdiction is very wide to include all such incidental powers as are necessary for ensuring proper investigation.
6. It is relevant in this context to note down the following observations of the Apex Court in the case Sakiri Vasu v. State of U.P. reported in 2008 (1) KLT 724 (SC). [See Paragraphs 13 to 18 of 2008 (1) KLT 724 (SC) p.728] .
"13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT 2007 (10) SC 585) (vide para.17). We would further clarify that even if an F.I.R. has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under S.156(3) Cr. P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under S.156(3) Cr. P.C.
14. S.156 (3) states:
“Any Magistrate empowered under S.190 may order such an investigation as abovementioned.” The words 'as abovementioned' obviously refer to S.156 (1), which contemplates investigation by the officer in charge of the Police Station.
15. S.156(3) provides for a check by the Magistrate on the police performing its duties under Chap. XII Cr. P.C. 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 S.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 S. 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar v. A.C. Saldanna (AIR 1980 SC 326) (para. 19).
17. In our opinion S.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. S.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 confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution."
Therefore, it has been clearly laid down by the Apex Court in para 17 of Sikri Vasu's case that the power under Section 156(3) of Cr.P.C. is wide enough to include all such powers in a Magistrate, which are necessary for ensuring proper investigation, and it includes the power not only for ordering registration of F.I.R. in a crime but also 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 under Section 156(3) and that said power is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
7. On a reading of the impugned order it is clear that the jurisdictional Magistrate has not appreciated the ratio residenti of the decision of the Apex Court in Sakiri Vasu v. State of U.P. (supra) and that in the impugned order it is decided to close the petition and thus disallowing the prayer of the petitioner in the Criminal Miscellaneous Petition merely on account of the fact that investigation in the matter is over and that refer report is filed. This approach in the impugned order is not tenable and is not in accordance with the legal principles laid down by the Apex Court in Sakiri Vasu's case (supra).
8. It is to be noted that the petitioner, a lady, who, as defacto complainant, had raised specific allegations against a person, who is said to be a Civil Police Officer and certain other averments are made regarding the conduct of the investigation, merits of which, need not be adjudicated at this stage of the matter now. More over, very crucially it is pleaded that the petitioner was not given any notice or copy of the refer report about the completion of the investigation and she has not been given any reasonable opportunity in this regard. As the impugned order, Annexure A4, is not in consonance with the principles laid down by the Apex Court in Sakiri Vasu's case (supra), the impugned Annexure A4 order is set aside. Accordingly, Crl.M.P.No.2399/2014 filed by the petitioner in the aforementioned crime No.1299/2013 of Kondotty Police Station, stands remitted to the Judicial First Class Magistrate Court, Malappuram, for fresh consideration in accordance with law and in the light of the principles laid down by the Apex Court under the aforementioned Sakiri Vasu's case cited supra. (supra). The learned Magistrate shall give reasonable opportunity of being heard to the petitioner. The learned Magistrate shall call for the entire case diary (CD) record from the investigating officer concerned and peruse the same and assess as to whether the investigation was done fairly and properly. In view of the position laid down by the Apex Court in para 17 of the case Sakiri Vasu v. State of U.P. reported in 2008 (1) KLT 724 (SC), the power to order proper investigation is available not only when the investigation is going on, but also when proper investigation has not been done, etc. The specific averment and contention of the petitioner is that the investigation conducted was not fair and proper. The learned Magistrate will give an opportunity of being heard to the petitioner through her counsel and also to the learned Public Prosecutor and then pass final orders in the matter as directed above, as early as possible, at any rate, within an outer time limit of three months from the date of production of a certified copy of this order.
The Crl.M.C. stands finally disposed of with the above said observations and directions.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge