Namita Naskar Vs State of West Bengal

Joymalya Bagchi, J.@mdashThe petitioner had lodged a First Information Report being Gariahat Police Station Case No. 373 dated 13.8.2012 under sections 420/464/465/466/468/471/120B of the Indian Penal Code, inter alia, alleging that the accused persons had committed acts of forgery and thereby trying to convert valuable property and cause wrongful loss to the petitioner. Prayer has been made for further investigation in the matter by an officer attached to Detective Department. A report has been filed on behalf of the investigating agency that they have concluded the investigation and in the absence of conclusive opinion as to forgery, a final/closure report has been filed. Let the report be kept with the record. It is settled law as held in Bhagwant Singh Vs. Commissioner of Police and Another, that no closure/final report may be accepted by the learned Magistrate without giving an opportunity of hearing to the first informant. It is submitted by the learned Advocate of the petitioner that no opportunity was given to him. He further submitted that this Court has ample power under Article 226 of the Constitution of India to direct further investigation by a superior investigating agency, i.e. C.I.D. having better forensic skills but the learned Magistrate u/s 156(3) of the Code of Criminal Procedure is not entitled to direct further investigation by a superior agency. He relied on C.B.I. v. State of Rajasthan, 2001 SCC (Cri.) 524. He submitted that the forensic expertise of a superior agency was sine qua non for investigating the crime of forgery in this case.

2. It is true in C.B.I. v. State of Rajasthan (Supra), it has been held that power u/s 156(3) of the Code of Criminal Procedure does not permit learned Magistrate to direct investigation by a superior officer beyond officer-incharge of a police station. However, Section 36 of the Code of Criminal Procedure empowers a superior police officer to exercise such powers of the officer-incharge of a police station.

3. The Apex Court while interpreting the power of the Magistrate to direct investigation u/s 156(3) of the Code of Criminal Procedure has held that such provision impliedly includes the power to monitor such investigation. In Sakiri Vasu Vs. State of U.P. and Others, , the Apex Court held:

13...............We would further clarify that even if an FIR 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 u/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(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys u/s 156(3) Cr.P.C.

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15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr. PC. 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 u/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 section 173(8). Hence, the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar and Another Vs. J.A.C. Saldanha and Others, .

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 FIR 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 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 for its execution.

In T.C. Thangaraj Vs. V. Engammal and Others, , the Apex Court held:

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.

4. It is, therefore, clear that in course of investigation/further investigation, if the Magistrate is of the opinion that effective investigation is not being done by the Officer-in-charge of a police station, he may monitor the same and issue directions upon the latter to effectively investigate the crime. Such power in a given case where complexities of investigation require better forensic skill or technique shall include direction upon the officer in charge to take recourse to such skill or technique, if necessary in the interest of justice. In view of the availability of such alternative statutory framework, the petitioner is required to agitate his grievances before the learned Magistrate in the first place in accordance with law. I, therefore, dispose of this writ petition by giving liberty to the petitioner to approach the learned Magistrate and file protest petition against the final report and if such step is taken, the learned Magistrate shall consider the same and pass appropriate orders thereon in accordance with law.

With the aforesaid direction, the writ petition is disposed of.