NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 102 OF 2011

M. SUBRAMANIAM AND ANOTHER …..    APPELLANT(S)

VERSUS

S. JANAKI AND ANOTHER …..RESPONDENT(S)

O R D E R

The  impugned  order  dated  06.01.2010  passed  by  the

Madurai Bench of Madras High Court in Criminal O.P. (MD) No.

11620 of 2009 filed by S. Janaki, the first respondent before us,

directs the Inspector  of  Police,  City  Crime Branch,  K.K.  Nagar,

Trichy to register a case, that is, First Information Report, on the

basis of the complaint dated 18.09.2008 and after investigation file

the final report in accordance with law.

2. Aggrieved,  Mr.  M.  Subramaniam  and  Mr.  R.V.  Prasanna

Venkatesan who  were  not  even  made  parties  to  the  aforesaid

Criminal  O.P.  (MD)  No.  11620  of  2009  have  filed  the  present

petition under Article 136 of the Constitution of India.  By order

dated 12.03.2010,  the permission to file  Special  Leave Petition

was granted and notice was issued.  On considering the facts and

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assertions made, it was directed that in the meanwhile operation

of the impugned judgment would be stayed.

3. In  spite  of  the  aforesaid  stay,  it  appears  that  the  Inspector  of

Police, City Crime Branch, K.K. Nagar, Trichy on 05.04.2010 had

registered an FIR in Crime No. 7 of 2010 under Sections 403, 406,

408, 418(i),  420, 424 and 465 of  the Indian Penal Code, 1860

against the two appellants and three others.  During the course of

the hearing before us, the appellants have produced a copy of the

order dated 18.02.2019 passed by the Madurai Bench of Madras

High Court in Criminal O.P. (MD) No. 5195 of 2010 and M.P.(MD)

No. 1 of 2010 filed by the appellants and three others against the

two respondents.  By this order, the petition was partly allowed

with the direction that the aforesaid case registered as Crime No.

7 of 2010 will  be treated as closed.  In the event of this Court

dismissing the present S.L.P., the police would proceed with the

investigation  in  Crime  No.  7  of  2010  and  take  it  to  its  logical

conclusion by either filing charge-sheet or a final closure report as

the case may be.  It  stands specifically directed that the police

would not proceed further with the investigation till the decision of

the present S.L.P.

4. As per the appellants, the first respondent was one of the trustees

in  ADS  Educational  Trust  which  was  founded  in  1985  for  the

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purposes  of  giving  and  promoting  education.   The  trust  had

started Sri Angalamman College of Engineering and Technology

at Trichy in 1987.  The first and second appellants before us are

the Chairman and the Vice-Chairman respectively of this College.

The appellants have submitted that  the first  respondent has no

locus  standi to  file  a  criminal  complaint  and  the  complaint  is

intended only  to  wreak  vengeance in  view of  the civil  dispute,

which is pending between the parties.  The first respondent, it is

alleged,  was removed from service as she was found guilty  of

fraud and forgery.

5. While it is not possible to accept the contention of the appellants

on  the  question  of  locus  standi, we  are  inclined  to  accept  the

contention  that  the  High  Court  could  not  have  directed  the

registration of an FIR with a direction to the police to investigate

and file the final report in view of the judgment of this Court in

Sakiri Vasu  v. State Of Uttar Pradesh And Others1 in which it

has been inter alia held as under:

“11. In this connection we would like to state that if a person has a grievance that the 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

1 (2008) 2 SCC 409 Criminal Appeal No. 102 of 2011 Page 3 of 8

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.

12.  Thus  in  Mohd.  Yousuf v.  Afaq  Jahan this  Court observed: (SCC p. 631, para 11)

“11.  The  clear  position  therefore  is  that  any Judicial  Magistrate,  before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If  he does so, he is not to examine  the  complainant  on  oath  because  he was not taking cognizance of any offence therein. For  the  purpose  of  enabling  the  police  to  start investigation it is open to the Magistrate to direct the  police  to  register  an  FIR.  There  is  nothing illegal in doing so. After all registration of an FIR involves  only  the  process  of  entering  the substance  of  the  information  relating  to  the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it  is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer  could  take  further  steps  contemplated  in Chapter XII of the Code only thereafter.”

13. The same view was taken by this Court in Dilawar Singh v.  State of  Delhi (JT vide para 17).  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 under Section 156(3) CrPC, 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 under Section 156(3) CrPC.

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14. Section 156(3) states:

“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  can  order  reopening  of  the investigation  even  after  the  police  submits  the  final report, vide  State of Bihar v.  J.A.C. Saldanha  (SCC : AIR para 19).

17. In our opinion Section 156(3) CrPC 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) CrPC,  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

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all such acts or employ such means as are essentially necessary for its execution.”

6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v.

Hemant Yashwant Dhage and Others2, in which it is observed.

“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.

4. In view of the settled position in Sakiri  Vasu case, the impugned judgment of the High Court  cannot be sustained  and  is  hereby  set  aside.  The  Magistrate concerned  is  directed  to  ensure  proper  investigation into  the  alleged  offence  under  Section  156(3)  CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating

2 (2016) 6 SCC 277 Criminal Appeal No. 102 of 2011 Page 6 of 8

officer,  so  that  a  proper  investigation  is  done.  The Magistrate can also monitor the investigation, though he cannot  himself  investigate (as investigation is  the job of  the police).  Parties  may produce any material they  wish  before  the  Magistrate  concerned.  The learned  Magistrate  shall  be  uninfluenced  by  any observation in the impugned order of the High Court.”

7. We are also surprised and concerned at the registration of the FIR

in Crime No. 7 of 2010, notwithstanding, the stay order passed by

this  Court  while  issuing  notice  by  which  the  operation  of  the

impugned judgment was directed to remain stayed.

8. In these circumstances, we would allow the present appeal and

set aside the direction of the High Court for registration of the FIR

and investigation into the matter by the police.  At the same time,

our  order  would  not  be  an  impediment  in  the  way  of  the  first

respondent filing documents and papers with the police pursuant

to  the  complaint  dated  18.09.2008  and  the  police  on  being

satisfied that a criminal offence is made out would have liberty to

register an FIR. It is also open to the first respondent to approach

the court of the metropolitan magistrate if deemed appropriate and

necessary.  Equally, it will be open to the appellants and others to

take steps to protect their interest.   

9. We would clarify that this Court has not expressed any opinion on

merits and whether or  not  the complaint  discloses any criminal

offence.  The only clarification that is required is that a civil dispute Criminal Appeal No. 102 of 2011 Page 7 of 8

should not be given the colour of a criminal offence, and at the

same time mere pendency of the civil proceeding is not a good

ground and justification to not register and investigate an FIR if a

criminal offence has been committed.

10. Recording the aforesaid, the present appeal is partly allowed.   

…………………………, J. (N.V. RAMANA)

…………………………, J. (MOHAN M. SHANTANAGOUDAR)

.…………………………, J. (SANJIV KHANNA)

NEW DELHI; MARCH 20, 2020.

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