In case an informant feels that proper or fair investigation is not being carried out by the investigating officer, the aggrieved can then approach a Magistrate for relief under Section 156(3) of the Code of Criminal Procedure (CrPC), instead if invoking writ jurisdiction of the High Court under Article 226 of the Constitution. The Allahabad High Court presided over by J. S.P. Kesarwani & J. S. Ahmed laid down this ratio in the case of Ajay Kumar & Ors. Vs. State of U.P. & Ors, [Criminal Miscellaneous Writ Petition No. 15692 of 2020].
The Court in this case has clubbed several petitions. The Petitions were filed under Article 226 of the Constitution with a prayer to direct the Police authorities to carry out fair and proper investigation in various criminal cases. The Petitioner argued that they have a right to seek directions from the High Court under Article 226 of the Constitution if the investigating authority/agency is not functioning properly. They further, argued that there was no need to invoke Section 156(3) of the CrPC as the High Court has the power to pass such directions.
The High Court in this case had two question before it that is whether the concerned Magistrate has the power to direct the police authorities to carry out fair and proper investigation. Secondly, whether the petitioners can directly approach the High Court under Article 226 of the Constitution without exhausting the remedy under Section 156(3) of the CrPC.
The Court in this case was of the opinion that every investigation has to be conducted in a fair manner and in accordance with law. The Court further stated that, “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 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.”
Th Court emphasizing on the importance of fair investigation stated that, “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 a 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.”
The Court also stated that such fair trial and scope of Article 21 was of the opinion that “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.” The Court also relied upon landmark judgments of Maneka Gandhi Vs UOI and Subramanian Swamy Vs. CBI.
The Court lastly stated that the proper remedy for proper and fair investigation of trials was under Section 156(3) of CrPC and not Article 226 of the Constitution. Relaince was placed on the landmark judgment of Vinubhai Haribhai Malviya v. State, where the Supreme Court was of the opinion that, “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.”