- (1.) THIS habeas corpus petition has been filed by the petitioner, who is said to be the brother of the detenu with the averment that respondent No. 4 has kidnapped his sister on 28.03.2014. In respect of the said incident, a written report has been registered on 28.03.2014 itself for the offence under Section 366 IPC. The primary grievance of the petitioner is that no progress is being made in the investigation. Therefore, it has been prayed that the respondents be directed to produce the detenu Rajni before
(2.) IN the instant case, the detenu is said to have been kidnapped on 28.03.2014. The report in respect of incident has been registered at Police Station Udyog Nagar, Sikar on the same day i.e. 28.03.2014. But the petitioner, without waiting for the investigation to be proceeded with, has rushed to this Court by filing this writ petition under Article 226 of the Constitution of India. By lodging the first information report, the petitioner has availed the alternative and efficacious remedy under the relevant law and the investigation in the matter is still pending. In these circumstances, there is no just reason for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, particularly when the alternative remedy has already been availed by the petitioner. However, if the concerning authorities do not take prompt steps in respect of investigation then the petitioner shall be free to approach the concerning Magistrate with the request that the investigation be monitored and supervised by him by calling periodical progress report from the police. Such power has been vested with the concerning Magistrate under Section 156(3) Cr.P.C. as annunciated by the Hon'ble Supreme Court in the case of Sakiri Vasu vs. State of Uttar Pradesh & Ors., : (2008) 2 SCC 409. The relevant paras of the said judgment are 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 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. 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, and does 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, andVdoes 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 re -opening of the investigation even after the police submits the final report, vide State of Bihar vs. J.A.C. Saldanha : AIR 1980 SC 326 (para 19). 24. In view of the abovementioned 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. 25. 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 ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3). 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? 27. 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 this 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. In view of the aforesaid facts of the case and the principle of law laid down by the Hon'ble Apex Court, this habeas corpus petition is disposed of with following directions: - (i) that on filing of an application by the complainant petitioner before the learned Magistrate, he shall call for a report from the police station concerned with regard to the progress made in the investigation, in furtherance of FIR No. 86/2014; (ii) that the learned Magistrate shall supervise and monitor the investigation in the instant case and issue appropriate directions to the police from time to time and call for the periodical report from them in respect of progress made; (iii) the learned Magistrate shall ensure that the conclusion of investigation arrived at is submitted by the police at the earliest; and (iv) in the event of recovery of the detenu, namely Rajni, the petitioner shall be at liberty to move an application under Section 97/98 Cr.P.C. for restoring her custody to him. ;