When the investigation has commenced and the accused, the defector complainant/the victim or any other has a grievance that the investigation is not done properly, what is the remedy with such persons has in law Can he come to this Court with a petition under Section 482 Cr.P.C or Article 226/227 of the Constitution Can or should this Court entertain and consider such a petition Before such person exhausts his alternative remedy of approaching the Magistrate under Section 156 (3) Cr.P.C should such a person ordinarily be permitted entry into this Court Unless exceptional and peculiar reasons are shown to exist, will this Court be justified in entertaining such a petition These are the questions that arise for consideration in this Writ Petition.

2. The factual matrix is simple. Crime No.2001 of 2007 of Kattakkada Police Station has been registered alleging offences punishable, inter alia, under Sections 468 and 420 r/w 34 I.P.C. The petitioner, a woman, aged 51 years is the defacto complainant in that crime. Her short grievance is that no proper investigation has been conducted by the Investigating Officer so far. She has come to this Court without and before approaching the learned Magistrate with request to issue appropriate directions under Section 156(3) Cr.P.C. 3. When this case came up for hearing, this Court felt that in the light of the decision in Sakiri Vasu v. State of U.P [2008 AIR SCW 309], the above questions deserve detailed consideration. Many similar matters, in which the same question arises, have been heard and the counsel was requested to advance arguments on this specific aspect. Arguments have been heard. Sri. C.P. Udayabhanu, the learned counsel for the petitioner has advanced his arguments. At the request of this Court, Advocate S. Sreekumar, the Standing Counsel for C.B.I has advanced arguments as Amicus Curiae. The learned Public Prosecutor has also been heard.

4. The learned counsel for the petitioner Sri. C.P. Udayabhanu submits that the power of this Court to entertain an application under Section 482 Cr.P.C and/or Article 226/227 of the Constitution are not taken away by the decision in Sakiri Vasu v. State of U.P [2008 AIR SCW 309]. In an appropriate case, such jurisdiction still vests with the Court. It is, in these circumstances, contended that in any view of the matter, the jurisdiction of this Court to entertain this petition under Article 226 of the Constitution cannot be held to be taken away by the decision in Sakiri Vasu. The counsel submits that this is a proper case where such jurisdiction can and ought to be invoked.

5. The learned counsel for the petitioner then contends that the nature of reliefs that can be sought from a Magistrate under Section 156(3) Cr.P.C is rather limited and cannot, at any rate, remedy the grievance of the petitioner.

6. The decision in Sakiri Vasu appears to have considered all these aspects. I shall first consider the relevant observations in Sakiri Vasu which clearly lays down that the Magistrate has competence to monitor and supervise the investigation in an on going manner when the investigation is pending.

7. In para.11 of the Sakiri Vasu, the learned Judges have stated so:

"....................................................................... if even after registering it (FIR) 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." emphasis supplied)

8. Later in para.13, the learned Judges proceeded to observe as follows:

"We would further clarify that 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 as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C." (emphasis supplied)

9. Later, in para.15, the learned Judges have observed thus:

"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."

10. When it came to para.17, the learned Judges observed as follows:

"In our opinion 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 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."

11. Later, after adverting to the principle that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective, the learned Judges construed the power under Section 156(3) Cr.P.C to include an implied power to direct a proper investigation. In para.24 the principle is stated with precision in the following words

"In view of the above mentioned 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." (emphasis supplied)

12. The learned Judges elaborated on the above matter with a specific purpose. Their Lordships were aware of the practice of persons rushing to the High Court with Writ Petitions or petitions under Section 482 Cr.P.C. The learned Judges want to make it clear that ordinarily such a practice should not be encouraged and the High Courts must refuse to interfere with such matters. In para.25 the following lines appear.

"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 mattes, and relegate the petitioner to his alternative remedy."

13. To dispel, any impression that the Magistrate does not have powers to ensure a proper investigation, their Lordships proceeded further and stated so in para.27 in the following words.

"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 his 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."

14. After observing that such an alternate remedy available to such a petitioner, the learned Judges in para.28 stated thus:

"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."

15. The learned counsel for the petitioner expresses doubt as to whether this conclusion that the Magistrate has powers under Section 156(3) Cr.P.C is correct. Sri. S. Sreekumar, Standing Counsel for C.B.I, particularly relies on the decision of the 3 Judge Bench of the Supreme Court in 1980 S.C 326 State of Bihar v. J.A.C. Saldanna [AIR 1980 S.C 326]. The counsel relies on the following observations in para.25 and 26 of the said decision.

"para.25: There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognized way back in King Emperor v. Khwaja Nazir Ahmad, (1944) 71 Ind App 203 at p.213, where the Privy Council observed as under:

"In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the courts functions begin when a charge is preferred before it, and not until then".

26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary."