- (1.) THIS Habeas Corpus Petition has been filed by the petitioner Om Prakash with the prayer that the respondents be directed to recover his daughter, namely Neelam Joshi. It is however stated that the girl is missing since 21.3.2014. Thereafter, the Regular First Information Report was got registered at Police Station Murlipura, Jaipur (South) on 21.3.2014 itself for the offence under Secs. 363 & 366 IPC. The grievance of the petitioner is that after lodging of the FIR, the investigation has not make any progress.
(2.) WHEN the petitioner came with the case that his child is missing and thereafter he had lodged a report but the police was not investigating the matter, then he ought to have first availed the remedy under the Code of Criminal Procedure. In a case, where either a report has not been lodged by the Police or after lodging the same, no progress has been made in the investigation, then in that situation/the informant can approach the Police Authority or the concerned Magistrate for redressal of the same. On having approached the Police Authority, if no result is forthcoming, then the Magistrate concerned may be requested for passing an appropriate order to the Police for submitting the Progress Report in respect of the Investigation in the matter. Approaching the High Court in such a situation, either under Article 226 of the Constitution of India or under Sec. 482 Cr.P.C. is not the proper remedy. This view has been enunciated by the Hon'ble Supreme Court in the case of Sakiri Vasu v. State of Uttar Pradesh & Ors., : (2008) 2 SCC 409. The relevant paras 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 Sec. 154, Cr.P.C., then he can approach the Superintendent of Police under Sec. 154(3), Cr.P.C. 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 Sec. 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Sec. 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, 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 Sec. 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 Sec. 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. J.A.C. Saldanha, : AIR 1980 SC 3(sic)6 (para 19). 24. In view of the abovementioned legal position, we are of the view that although Sec. 156(3) is very briefly worded, there is an implied power in the Magistrate under Sec. 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 Sec. 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 Sec. 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 Sec. 154(3) and Sec. 36, Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Sec. 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 Sec. 154 (3) Cr.P.C. or other police officer referred to in Sec. 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Sec. 36 his grievance still persists, then he can approach a Magistrate under Sec. 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Sec. 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Sec. 200 Cr.P.C. Why then should writ petition or Sec. 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 See. 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 Sec. 36 and 154(3) before the concerned police officers, and if that is of no avail, under Sec. 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Sec. 200, Cr.P.C. and not by filing a writ petition or a petition under Sec. 482, Cr.P.C." In view of the aforesaid facts of the case and the principles of law laid down by the Hon'ble Supreme Court in the case of Sakiri Vasu (supra), we dispose of this habeas corpus petition with the following directions: "(i) that the petitioner shall approach the Magistrate concerned by way of an application with request for calling of the report from the police station in respect of progress made in the investigation. (ii) that the Magistrate concerned shall call a periodical report from the police station so as to supervise and monitor the investigation till the conclusion of the same is filed by the police before him. (iii) in the event of recovery of the missing girl, the petitioner shall be at liberty to move an application for restoring her custody to him, as being her natural guardian.";