Madras High Court
G.Saravanan vs The Director on 23 January, 2025
W.P.No.798 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.01.2025
PRONOUNCED ON : 23.01.2025
CORAM:
THE HON'BLE Mr. JUSTICE SHAMIM AHMED
W.P.No.798 of 2025
G.Saravanan ...Petitioner
Vs.
1. The Director,
Directorate of Vigilance and
Anti-Corruption,
Chennai.
2. The Superintendent of Police,
Western Range,
Vigilance and Anti-Corruption,
Chennai – 16.
3. The Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Salem District,
Chennai. ..Respondents
Prayer : Writ petition has been filed under Article 226 of the
Constitution of India, praying to issue a writ of mandamus directing the
respondents to consider the petitioner's representation dated 21.07.2024
and 03.10.2024 seeking to initiate investigation for misappropriation of
funds allotted to the Periyur Village Panchayat, Salem District.
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For petitioner : Mr.R.Sathish Kumar
For Respondents : Mr.A.Gopinath
Government Advocate (Crl.Side)
ORDER
1. This writ petition has been filed for a direction to the
respondents to consider the petitioner’s representation dated 21.07.2024
and 03.10.2024 seeking to initiate investigation for misappropriation of
funds allotted to the Periyur Village Panchayat, Salem District.
The facts in brief enclosed in the affidavit of the writ
petition are as follows:
2. The Petitioner is an active participant of Gram Sabha
meeting in Periyeri Village, Salem District. There were several
allegations against the Periyeri Village Panchayat authorities for not
properly maintaining the Panchayat accounts and not furnishing the
Panchayat accounts for perusal to the Villagers.
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3. On perusal of the vendor registration and status report of
Periyeri Village, several payment vouchers were raised for the financial
year 2023-2024 in the name of “Sai Electricals Gowsika” for a sum of
Rs.20,25,108/-. The “Sai Electricals Gowsika” is in the name of one
Mrs.Gowsika Navarathinaraj, the wife of Vice President of Periyeri
Village Panchayat, Mr. Praveenkumar. The Vice President of Periyeri
Village Panchayat, had transferred the funds of the said village to “Sai
Electrical” by raising false vouchers in the guise of expenditures of said
village.
4. Following this, several complaints were given to
Government officials at various levels and finally surcharge proceedings
dated 08.01.2024 was issued by the Assistant Director (Audit), Salem,
stating that for the financial year 2022-2023, a sum of Rs.45,52,556/-
was found to be misappropriated by the Village President, namely,
Mr.Sekar. But subsequently no further steps were taken by the authorities
against the village President.
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5. Mr.Pon.Perumal, a resident of the village had sent his
representation dated 22.05.2024 to the 2nd Respondent about the
misappropriation and financial frauds involved by the authorities of the
village Panchayat. The 2nd Respondent, forwarded the said complaint to
the Commissioner of Rural Development and Panchayat Raj Department
also but no action was taken.
6. Thereafter, from the Audit Report of Periyeri village
panchayat dated 29.09.2024, it is clear that proper accounts were not
maintained for more than Rs.80,00,000/- under different heads. An
amount of Rs.27,75,447/- had been transferred to above said Sai
Electricals without bills. Further a sum of Rs.6,37,179/- had been
transferred to the name of Mr. Praveen Kumar, the Vice President,
without proper accounts. Therefore, more than Rs.34 lakhs had been
misappropriated in the financial year 2023-24. Further, there were
irregularities for the periods 2020-21, 2021-22 and the accounts were
also not clear. According to the petitioner, the above misappropriation
with the active connivance of the other Government officials has be done
and hence, there is a necessity for a fair investigation for the purpose of
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bringing to light the role played by the authorities on this regard.
Therefore, the petitioner sent a representation dated 21.07.2024, to the
2nd Respondent seeking to investigate the misappropriation of funds
done by the Vice President of Periyur village and others connected
authorities involved in the said malpractice. The 2nd Respondent on
29.07.2024 had forwarded the petitioner’s representation to the
Superintendent of Police, Salem District but no further action was taken.
7. While so, One Mr.Manimuthu, was the registered vendor of
Periyeri village Panchayat and the GSTIN of the said person was
cancelled on 01.01.2022. But more than Rs.47,00,000/- of the Panchayat
funds were transferred to the said Manimuthu till date. For the said
amount appropriate GST was also not paid, which had lead to huge
financial loss to the Government. Hence, once again the petitioner sent a
representation dated 03.10.2024 to the 2nd Respondent seeking to
investigate the above misappropriation.
8. The learned counsel for the petitioner submitted that an
important facet of the rule of law is that in criminal justice system,
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investigation into the crime should be fair, in accordance with law and
should not be tainted. Therefore, if the investigating authority is not
fairly and properly investigating into crime then this Court has power to
issue appropriate directions under Article 226 of the Constitution of
India. He further submitted that once the power is available to this
Court, there is no need to invoke the powers of the concerned Magistrate
under Section 175 (3) of the Bharatiya Nagarik Suraksha Sanhita, 2023
(for brevity in short “B.N.S.S”) Hence, this writ petition.
9. Mr.A.Gopinath, learned Government Advocate (Crl. Side)
submitted that the petitioner made his representations to the second
respondent on 22.05.2024, 21.07.2024 and 03.10.2024 about the
misappropriation and financial frauds involved by the authorities of the
concerned village Panchayat. Thus the provision of B.N.S.S is
applicable to the case of the petitioner and the Magistrate has the power
under Section 175 (3) of the B.N.S.S to order for fair and proper
investigation and, therefore, the petitioner should have approached the
concerned Magistrate for redressal of his grievances. Thus, he submits
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that the present writ petition is nothing but an abuse of process of law
and the same shall be liable to be dismissed.
10. Heard the learned counsel for the parties and perused the
records.
11. The present writ petition has been filed by the petitioner
praying for a direction to the concerned police authorities to decide the
representation of the petitioner for proper and fair investigation in
respect of the misappropriation and financial frauds committed by the
authorities of the concerned village panchayat. Thus, the following
questions of law which are involved in the writ petition:-
(a) Whether the petitioner is justified to file writ petition under
Article 226 of the constitution of India without approaching the
concerned Magistrate under Section 175 (3) of the Bharatiya Nagarik
Suraksha Sanhita, 2023 for fair and proper investigation?
(b) Whether the jurisdictional Magistrate has power to direct the
police authority concerned for fair and proper investigation?
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12. For consideration of the submission of the counsel for the
parties, relevant provisions for the purposes of controversy involved in
the present writ petition following Sections 2(1)(g), 2(1)(h), 2(1)(k),
2(1)(l), 2(1)(o), 30 and 175 B.N.S.S, are relevant, which are reproduced
below:-
The above said provisions are nearly corresponds to Sections 2(c), 2(d),
“Section 2(1)(g):- “cognizable offence”
means an offence for which, and “cognizable case”
means a case in which, a police officer may, in
accordance with the First Schedule or under any
other law for the time being in force, arrest
without warrant.
Section 2(1)(h):- “complaint” means any
allegation made orally or in writing to a
Magistrate, with a view to his taking action under
this Sanhita, that some person, whether known or
unknown, has committed an offence, but does not
include a police report.
Section 2(1)(k):- “inquiry” means every
inquiry, other than a trial, conducted under this
Sanhita by a Magistrate or Court;
Section 2(1)(l):- “investigation” includes all
the proceedings under this Sanhita for the collection
of evidence conducted by a police officer or by any
person (other than a Magistrate) who is authorised
by a Magistrate in this behalf.
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W.P.No.798 of 2025Section 2(1)(o):–“non-cognizable offence”
means an offence for which, and “non- cognizable
case” means a case in which, a police officer has no
authority to arrest without warrant;
Section 30:- Powers of superior officers of
police. Police officers superior in rank to an officer
in charge of a police station may exercise the same
powers, throughout the local area to which they are
appointed, as may be exercised by such officer within
the limits of his station.
Section 175. Police officer’s power to
investigate cognizable case.-(1) Any officer in
charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a
Court having jurisdiction over the local area within
the limits of such station would have power to
inquire into or try under the provisions of Chapter
XIV.
(2) No proceeding of a police officer in any such
case shall at any stage be called in question on the
ground that the case was one which such officer was
not empowered under this section to investigate.
(3) Any Magistrate empowered under section 210
may, after considering the application supported by an
affidavit made under sub-section (4) of section 173, and
after making such inquiry as he thinks necessary and
submission made in this regard by the police officer,
order such an investigation as above-mentioned.
(4) Any Magistrate empowered under section 210, may,
upon receiving a complaint against a public servant
arising in course of the discharge of his official duties,
order investigation, subject to-
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(a) receiving a report containing facts and
circumstances of the incident from the officer superior
to him; and
(b) after consideration of the assertions made by the
public servant as to the situation that led to the incident
so alleged.”
Procedure for Investigation:-
13. Section 176 of B.N.S.S deals regarding the procedure for
investigation and it says:-
“176. Procedure for investigation. – (1) If, from
information received or otherwise, an officer in charge
of a police station has reason to suspect the commission
of an offence which he is empowered under section 175
to investigate, he shall forthwith send a report of the
same to a Magistrate empowered to take cognizance of
such offence upon a police report and shall proceed in
person, or shall depute one of his subordinate officers
not being below such rank as the State Government may,
by general or special order, prescribe in this behalf, to
proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary, to take
measures for the discovery and arrest of the offender:
Provided that-
(a) when information as to the commission of any such
offence is given against any person by name and the
case is not of a serious nature, the officer in charge of a
police station need not proceed in person or depute a
subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police
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W.P.No.798 of 2025an investigation, he shall not investigate the case:
Provided further that in relation to an offence of rape,
the recording of statement of the victim shall be
conducted at the residence of the victim or inthe place of
her choice and as far as practicable by a woman police
officer in the presence of her parents or guardian or
near relatives or social worker of the locality and such
statement may also be recorded through any audio
video electronic means including mobile phone.
(2) In each of the cases mentioned in clauses (a) and (b)
of the first proviso to sub-section (1), the officer in
charge of the police station shall state in his report the
reasons for not fully complying with the requirements of
that sub-section by him, and, forward the daily diary
report fortnightly to the Magistrate and in the case
mentioned in clause (b) of the said proviso, the officer
shall also forthwith notify to the informant, if any, in
such manner as may be prescribed by rules made by the
State Government.
(3) On receipt of every information relating to the
commission of an offence which is made punishable for
seven years or more, the officer in charge of a police
station shall, from such date, as may be notified within a
period of five years by the State Government in this
regard, cause the forensic expert to visit the crime scene
to collect forensic evidence in the offence and also cause
videography of the process on mobile phone or any
other electronic device:
Provided that where forensic facility is not available in
respect of any such offence, the State Government shall,
until the facility in respect of that matter is developed or
made in the State, notify the utilisation of such facility
of any other State.”11/32
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W.P.No.798 of 2025Let us understand briefly the concept of Investigation:-
14. In order to study about the criminal investigation, we need
to understand the term ‘investigation’,
“Investigation means to examine, study, or inquire into
systematically, search or examine into the particulars of; examine in
detail, or, to search out and examine the particulars of in an attempt to
learn the facts about something hidden, unique, or complex, especially in
an attempt to find a motive, cause, it is about finding things.”
According to the BNSS under section 2(1)(l),“ investigation
includes all the proceedings under this Sanhita for the collection of
evidence conducted by a police officer or by any person (other than a
magistrate) who is authorized by a Magistrate in this behalf.
Investigation, under the BNSS includes:-
1. Proceeding to the spot of crime.
2. Ascertaining the facts and circumstances of the case.
3. Discovery and arrest of the suspected offenders.
4. Collection of evidence,
* examination of various persons including the accused and
5.recording their statements in writing.
* Search of places or seizures of things which are considered
necessary.
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Criminal Investigation is an applied science that involves the study
of facts, used to identify, locate and prove the guilt of a criminal. A
complete criminal investigation can include searching, interviews,
interrogations, evidence collection and preservation and various methods
of investigation. Modern day criminal investigations commonly employ
many modern scientific techniques known collectively as forensic
science.
Application of science and technology in criminal investigation
is also an important issue to be considered:-
15. The search for effective aids to interrogation is probably as
old as man’s need to obtain information from an uncooperative source
and as persistent as his impatience to shortcut any tortuous path. In the
annals of police investigation, physical coercion has at times been
substituted for painstaking and time consuming inquiry in the belief that
direct methods produce quick results. The use of technology in the
service of criminal investigations, and the application of scientific
techniques to detect and evaluate criminal evidence has advanced the
investigation process criminal justice system throughout the country.
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According to Cowan in his article “Decision Theory in Law, Science, and
Technology”,
“the aim of science, traditionally put, is to search
out the ways in which truth may become known.
Law aims at the just resolution of human conflict.
Truth and justice, we might venture to say, having
different aims, use different methods to achieve
them. Unfortunately, this convenient account of
law and science is itself neither true nor just. For
law must know what the truth is within the context
of the legal situation: and science finds itself ever
engaged in resolving the conflicting claims of
theorists putting forward their own competing
brands of truth.”
This quote roughly means that the law needs to find the truth to
resolve “human conflict” and one method of doing so is to use the field
of science. Today’s society has improved upon the methods of the past to
bring about more precise and accurate techniques. Forensic Science has
expanded to Trauma Inducing Drugs and Psychotropic Substances. The
application of science to matters of law has made great strides in recent
years. Development of new tools of investigation has led to the
emergence of scientific tools of interrogation. Before analysing these
techniques it will be necessary and useful to frame and consider the
question of law in this case.
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16. That while sitting in a Division Bench of Allahabad High
Court as one of the member of the Bench, several writ petitions were
filed before the Court with the prayer to direct the concerned police
authorities for fair and proper investigation in criminal cases in which
investigation is going on and criminal miscellaneous writ petition No.
15692 of 2020 (Ajay Kumar pandey Vs.State of Uttar Pradesh and
others) was made the leading case and we decided the case vide
judgement and order dated 27.01.2021. Observation and discussions
made in the above case is almost similar and identical to the present case
controversy which are being discussed hereunder.
Fair Investigation – Rule of Law:
17. The criminal justice system mandates that any investigation
into the crime should be fair, in accordance with law and should not be
tainted. It is equally important that interested or influential persons are
not able to misdirect or hijack the investigation, so as to throttle a fair
investigation resulting in the offenders escaping punitive course of law.
These are important facets of the rule of law. Breach of rule of law
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W.P.No.798 of 2025
amounts to negation of equality under Article 14 of the Constitution of
India. Article 21 of the Constitution of India makes it clear that the
procedure in criminal trials must be right, just and fair and not arbitrary,
fanciful or oppressive, vide Menka Gandhi vs. Union of India 1(para-7)
and Vinubhai Haribhai Malviya and others vs. State of Gujrat and
another (paras-16 and 17) and Subramanian Swamy vs. C.B.I.(para-
86). Article 21 enshrines and guarantees the precious right of life and
personal liberty to a person which can only be deprived on following the
procedure established by law in a fair trial which assures the safety of the
accused. The assurance of a fair trial is the first imperative of the
dispensation of justice, vide Commissioner of Police, Delhi vs.
Registrar, Delhi High Court, New Delhi (para-16). The ultimate aim of
all investigation and inquiry whether by the police or by the Magistrate is
to ensure that those who have actually committed a crime, are correctly
booked and those who have not, are not arraigned to stand trial. This is
the minimal and fundamental requirement of Article 21 of the
Constitution of India. Interpretation of provisions of Cr.P.C. needs to be
made so as to ensure that Article 21 is followed both in letter and in sprit.
“A speedy trial” is the essence of companion in concept in “fair trial”.
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W.P.No.798 of 2025
Both being inalienable jurisprudentially, the guarantee under Article 21
of the Constitution of India embraces both life and liberty of the accused
as well as interest of the victim, his near and dear ones as well as of the
community at large and, therefore, cannot be alienated from each other.
A fair trial includes fair investigation as reflected from Articles 20 and
21 of the Constitution of India. If the investigation is neither effective
nor purposeful nor objective nor fair, the courts may if considered
necessary, may order fair investigation, further investigation or
reinvestigation as the case may be to discover the truth so as to prevent
miscarriage of justice. However, no hard and fast rules as such can be
prescribed by way of uniform and universal invocation and decision shall
depend upon facts and circumstances of each case.
18. Fair and proper investigation is the primary duty of the
investigating officer. In every civilized society, the police force is
invested with powers of investigation of a crime to secure punishment for
the criminal and it is in the interest of the society that the investigating
agency must act honestly and fairly and not resort to fabricating false
evidence or creating false clues only with a view to secure conviction
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W.P.No.798 of 2025
because such acts shake the confidence of the common man not only in
the investigating agency but in the ultimate analysis in the system of
dispensation of criminal justice. Proper result must be obtained by
recourse to proper means, otherwise it would be an invitation to anarchy,
vide Rampal Pithwa Rahidas vs. State of Maharastra (para-37).
Investigation must be fair and effective and must proceed in the right
direction in consonance with the ingredients of the offence and not in a
haphazard manner more so in serious case. Proper and fair investigation
on the part of the investigating officer is the backbone of rule of law vide
Sasi Thomas vs. State (para-15 and 18).
19. No investigating agency can take unduly long time in
completing investigation. There is implicit right under Article 21 of the
Constitution of India for speedy trial which in turn encompasses speedy
investigation, inquiry, appeal, revision and retrial. There is clear need for
timeline in completing investigation for having in-house oversight
mechanism wherein accountability for adhering to lay down timeline, can
be fixed at different levels in the hierarchy, vide Dilawar vs. State of
Haryana (paras-4 to 8), Menka Gandhi (supra), Hussainara Khatoon
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W.P.No.798 of 2025
(I) vs. State of Bihar , Abdul Rehman Antulay vs. R.S. Nayak and P.
Ramchandra Rao vs. State of Karnatka.
20. For the purposes of investigation, offences are divided into
two categories “cognizable” and “non-cognizable”. When information of
a cognizable offence is received or such commission is suspected, the
proper police officer has the authority to enter in the investigation of the
same but where the information relates to a non-cognizable offence, he
shall not investigate it without the order of the competent Magistrate.
Investigation includes all the proceedings under the B.N.S.S. for the
collection of evidence conducted by a police officer or by any person
other than a Magistrate (who is authorised by a Magistrate in his behalf).
Investigation consists of steps, namely (i) proceeding to spot,
(ii) ascertainment of the facts and circumstances of the case,
(iii) discovery and arrest of the suspected offender, (iv) collection of
evidence relating to the commission of the offence and (v) formation of
opinion as to whether on the material collected therein to place the
accused before a Magistrate for trial and if so to take necessary steps for
the same by filing a report under Section 193 B.N.S.S.
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Remedy for Proper Investigation:-
21. Section 175 (1) B.N.S.S. confers power upon any officer in-
charge of a police station to investigate any cognizable case. Section 175
(3) provides for a cheque by the Magistrate on the police performing its
duties under Chapter XIII, B.N.S.S. In cases where the Magistrate finds
that 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.
22. In Sakiri Vasu vs. State of U.P. and others (paras-11 to 18
and 27 to 30) Hon’ble Supreme Court considered Section 156(3), Cr.P.C.
and after referring to its earlier decisions in Mohd. Yousuf vs. Smt.
Afaaq Jahan (para-11), Dilawar Singh vs. State of Delhi (para-17),
State of Bihar vs. J.A.C. Saldana (para-19) and also referring to its
judgements on the point of “doctrine of implied powers”, in Union of
India vs. Paras Laminates (P) Ltd.16, I.T.O. vs. Mohd. Kunhi, Reserve
Bank of India vs. Peerless General Finance and Investment Company
Ltd, Chief Executive Officer & Vice Chairman Gujarat Maritime
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W.P.No.798 of 2025
Board vs. Haji Daud Haji Harun Abu, J.K. Synthetics Ltd. vs.
Collector of Central Excise, State of Karnataka vs. Vishwabharati
House Building Co-op Society , was pleased to observe 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 Cr.P.C., then
he can approach the Superintendent of Police under
Section 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 Section 156 (3) Cr.P.C. 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 vs. Smt. Afaq Jahan &
Anr.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 all21/32
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W.P.No.798 of 2025registration 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 investigating 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 complaint 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 vs. State of Delhi (2007) 12 SCC 641
(JT vide para 17). This Court 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) 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 Section 156(3) Cr.P.C.
14. Section 156 (3) states:
“156(3) Any Magistrate empowered under Section
190 may order such an investigation as above
mentioned.”
The words “as above mentioned” obviously refer to
Section 156 (1), which contemplates investigation by
the officer in charge of the Police Station.”
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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.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 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
re-opening of the investigation even after the
police submits the final report, vide State of Bihar
vs. J.A.C. Saldanna (1980) 1 SCC 554 (SCC:
para 19).
17. This Court is of the opinion that 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 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.
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,
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W.P.No.798 of 2025
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.
27. As 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 200Cr.P.C. and not by filing a writ
petition or a petition under Section 482 Cr.P.C.
28. It is true that alternative remedy is not an
absolute bar to a writ petition, but it is equally
well settled that if there is an alternative remedy
the High Court should not ordinarily interfere.
29. In Union of India vs. Prakash P. Hinduja and
another (2003) 6 SCC 195 (SCC vide para 13), it
has been observed by this Court that a Magistrate
cannot interfere with the investigation by the
police. However, in our opinion, the ratio of this
decision would only apply when a proper
investigation is being done by the police. If the
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W.P.No.798 of 2025
Magistrate on an application under Section
156(3) Cr.P.C. is satisfied that proper
investigation has not been done, or is not being
done by the officer-in-charge of the concerned
police station, he can certainly direct the officer in
charge of the police station to make a proper
investigation and can further monitor the same
(though he should not himself investigate).”
23. The principles laid down in the case of Sakiri Vasu (supra)
has been reiterated by Hon’ble Supreme Court in Sudhir Bhaskar Rao
Tambe vs. Hemant Yaswant Dhage (paras-2, 3 and 4) and Vinay Tyagi
vs. Irshad Ali (paras-40 to 40.6, 43, 44, 45, 46, 47, 48). In the case of
Vinay Tyagi (supra), Hon’ble Supreme Court was pleased to observe as
under:
“43. At this stage, we may also state another well-
settled canon of criminal jurisprudence that the
superior courts have the jurisdiction under Section
482 of the Code or even Article 226 of the
Constitution of India to direct ”further investigation’,
”fresh’ or ”de novo’ and even ”reinvestigation’.
”Fresh’, ”de novo’, and ”reinvestigation’ are
synonymous expressions and their result in law
would be the same. The superior courts are even
vested with the power of transferring investigation
from one agency to another, provided the ends of
justice so demand such action. Of course, it is also a
settled principle that this power has to be exercised
by the superior courts very sparingly and with great
circumspection.
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W.P.No.798 of 2025
44. We have deliberated at some length on the issue
that the powers of the High Court under Section 482
of the Code do not control or limit, directly or
impliedly, the width of the power of Magistrate under
Section 228 of the Code. Wherever a charge sheet
has been submitted to the Court, even this Court
ordinarily would not reopen the investigation,
especially by entrusting the same to a specialised
agency. It can safely be stated and concluded that in
an appropriate case, when the court feels that the
investigation by the police authorities is not in the
proper direction and that in order to do complete
justice and where the facts of the case demand, it is
always open to the Court to hand over the
investigation to a specialised agency. These
principles have been reiterated with approval in the
judgements of this Court in the case of Disha v. State
of Gujarat & Ors.[(2011) 13 SCC 337].Vineet
Narain v. Union of India [(1998) 1 SCC 226],
Union of India v. Sushil Kumar Modi [1996 (6)
SCC 500] and Rubabbuddin Sheikh v. State of
Gujarat [(2010) 2 SCC 200].
48. What ultimately is the aim or significance of the
expression ”fair and proper investigation’ in criminal
jurisprudence? It has a twin purpose: Firstly, the
investigation must be unbiased, honest, just and in
accordance with law; secondly, the entire emphasis
on a fair investigation has to be to bring out the truth
of the case before the court of competent jurisdiction.
Once these twin paradigms of fair investigation are
satisfied, there will be the least requirement for the
court of law to interfere with the investigation, much
less quash the same, or transfer it to another agency.
Bringing out the truth by fair and investigative means
in accordance with law would essentially repel the
very basis of an unfair, tainted investigation or cases26/32
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W.P.No.798 of 2025of false implication. Thus, it is inevitable for a court
of law to pass a specific order as to the fate of the
investigation, which in its opinion is unfair, tainted
and in violation of the settled principles of
investigative canons.”
24. In the case of Vinubhai Haribhai Malviya and others vs.
State of Gujrat and another (para-23), Hon’ble Supreme Court was
pleased to observe as under:
“23. It is thus clear that the Magistrate’s power
under Section 156(3) of the CrPC is very wide, for it
is this judicial authority that must be satisfied that a
proper investigation by the police takes place. To
ensure that a “proper investigation” takes place in
the sense of a fair and just investigation by the
police – which such Magistrate is to supervise –
Article 21 of the Constitution of India mandates that
all powers necessary, which may also be incidental
or implied, are available to the Magistrate to ensure
a proper investigation which, without doubt, would
include the ordering of further investigation after a
report is received by him under Section 173(2); and
which power would continue to enure in such
Magistrate at all stages of the criminal proceedings
until the trial itself commences. Indeed, even
textually, the “investigation” referred to in Section
156(1) of the CrPC would, as per the definition of
“investigation” under Section 2(h), include all
proceedings for collection of evidence conducted by
a police officer; which would undoubtedly include
proceedings by way of further investigation under
Section 173(8) of the CrPC.”
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W.P.No.798 of 2025
25. In the case of Sudhir Bhaskar Rao Tambe (supra) (paras-
2, 3 and 4), Hon’ble Supreme Court following the judgement in the case
of Sakiri Vasu (supra) was pleased to observe 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), Cr.P.C. If such an application under Section
156(3) Cr.P.C. 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.
Thus, the law laid down by Hon’ble Supreme Court is that after
registration of the First Information Report if proper investigation is not
being done by the investigating officer, then informant may approach the
Magistrate concerned under Section 156(3), Cr.P.C. so that proper
investigation is done. A three judges bench of Hon’ble Supreme Court in
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W.P.No.798 of 2025
the case of M. Subramaniam and others vs. S. Janki and others
(Criminal Appeal No.102 of 2011 decided on 20.03.2020) quoted with
approval, the law laid down by two judges bench in the case of Sakiri
Vasu (supra) and Sudhir Bhaskar (supra) and thus, it affirmed the
principles laid down in those judgements that even if a first information
report has already been registered, on an application under Section
156(3) Cr.P.C., the Magistrate can direct proper investigation and writ
petition for this purpose should not generally be entertained by the High
Court in view of the remedy available before the Magistrate under
Section 156(3), Cr.P.C.
26. In Criminal Misc. Writ Petition No.16288 of 2020 (Ram
Shila Gupta vs. State of U.P. and 3 others), a Division Bench of
Allahabad High Court vide judgement and order dated 08.01.2024 was
pleased to observe as under:
“In the case of M. Subramanian and another Vs.
Janki and another (Criminal Appeal No.102 of
2011) decided on 20.03.2020, the Hon’ble Supreme
Court observed that if FIR has already been
registered then the Magistrate can direct proper
investigation to be done which includes his
discretion, if he deems it necessary, recommending29/32
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W.P.No.798 of 2025change of the investigation officer, so that a proper
investigation is done in the matter. The High Courts
have been flooded with writ petitions praying for
registration of the first information report or praying
for a proper investigation and 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. Hon’ble Supreme Court further held that
the complainant must avail of his alternative remedy
to approach the Magistrate concerned under Section
156(3) Cr.P.C 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
recommend to the Senior Superintendent of Police/
Superintendent of Police concerned a change of the
investigating officer, so that a proper investigation is
done. The Magistrate can also monitor the
investigation, though he cannot himself investigate.
The observations made by the Hon’ble Supreme
Court are also in reiteration of the principle laid
down by the Hon’ble Supreme Court in the case of
SUDHIR BHASKARRAO TAMBE VS. HEMANT
YASHWANT DHAGE AND OTHERS; 2016(6)
SCC 277 and in the case of SAKIRI VASU VS.
STATE OF UTTAR PRADESH AND OTHERS,
2008(2) SCC 409.
In view of the aforesaid, this Court do not find any good
reason to entertain the present writ petition.
Consequently, considering the submissions of the
learned counsel for the parties, this writ petition is
dismissed leaving it open to the petitioner to avail such
remedy as may be available to him under law.”
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W.P.No.798 of 2025
27. In view of the discussions made above, this Court holds
that if an informant/ petitioner is aggrieved that proper/ fair
investigation is not being done by the investigating officer, then he
may approach the concerned Magistrate by moving an application
under Section 175 (3) of the BNSS, 2023 for appropriate orders
instead of invoking writ jurisdiction under Article 226 of the
Constitution of India.
28. For all the reasons aforestated, this writ petition is dismissed
leaving it open to the petitioner to approach the Magistrate concerned
under Section 175 (3) of the BNSS, 2023 for fair and proper
investigation as the case may be.
29. Accordingly, the present writ petition is dismissed. No order
as to cost.
23.01.2025
vca
Internet : Yes/No
Citation : Yes/No
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W.P.No.798 of 2025
SHAMIM AHMED,J.
vca
To,
1. The Director,
Directorate of Vigilance and
Anti-Corruption,
Chennai.
2. The Superintendent of Police,
Western Range,
Vigilance and Anti-Corruption,
Chennai – 16.
3. The Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Salem District,Chennai.
Pre-Delivery Order in
W.P.No.798 of 2025
23.01.2025
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