For Proper and Fair Investigation Approach Under 156(3) CrPC Not Article 226: Allahabad HC

On Wednesday, the Allahabad High Court delivered its verdict in a batch of Petitions holding that a person cannot approach High Court under Article 226 of the Constitution seeking proper and fair investigation in a criminal case. This prayer can be granted by Magistrate only under Section 156(3) CrPC.

In all the writ petitions filed before the Court prayer was made for a direction to the concerned police authorities for fair and proper investigation in criminal cases in which investigation is going on. 

The Court framed following questions to answer:

  1. Whether the jurisdictional Magistrate has power to direct the police authority concerned for fair and proper investigation?
  1. Whether the petitioners are justified to file writ petitions under Article 226 of the Constitution of India without approaching the concerned Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 for fair and proper investigation?

Counsels for the Petitioners submitted that an important facet of the rule of law is that in criminal justice system, 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 crime then this court has power to issue appropriate directions under Article 226 of the Constitution of India. 

As such once the power is available to this court, there is no need to invoke the powers of the concerned Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973.

A Division Bench of Hon’ble Justice Surya Prakash Kesarwani and Hon’ble Justice Shamim Ahmed referred to the Judgment of Supreme Court in case of Menka Gandhi vs. Union of India, Vinubhai Haribhai Malviya and others vs. State of Gujrat and another, Commissioner of Police, Delhi vs. Registrar, Delhi High Court, New Delhi and observed that:

“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 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” 

The Court also referred to the Judgments in the case of  Sakiri Vasu vs. State of U.P. and others, Sudhir Bhaskar Rao Tambe vs. Hemant Yaswant Dhage , Vinubhai Haribhai Malviya and others vs. State of Gujrat and another and held that if an informant/ petitioner is aggrieved that proper/ fair investigation is not being done by the investigating officer, then he/ she may approach the concerned Magistrate by moving an application under Section 156(3) Cr.P.C. for appropriate orders instead of invoking writ jurisdiction under Article 226 of the Constitution of India

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