The High Court held that an informant who feels that a proper or fair investigation is not being done by the investigating officer may approach the Magistrate for relief by moving an application under Section 156(3), CrPC, instead of invoking the writ jurisdiction of the High Court under Article 226 of the Constitution of India.

In the course of the order, the Court also underscored 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..."

The Court was dealing with a batch of similar petitions.

These Petitions were filed under Article 226 of the Constitution with a prayer to direct the Police authorities to carry out a fair and proper investigation in various criminal cases.

The petitioners had argued that if the investigating agency is not functioning properly, the High Court has power to issue appropriate directions under Article 226 of the Constitution of India. Further, it was submitted that once the power is available to the High Court, there is no need to invoke the powers of the concerned Magistrate under Section 156(3) of the Code of Criminal Procedure (CrPC).

Questions formulated by the Court

-> Whether the concerned Magistrate has power to direct the police authority concerned for fair and proper investigation?

-> 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?

Findings of the Court

To decide on the matter, the Court extensively analyzed various provisions of the CrPC.

On rule of law and fair investigation in a criminal case, the Court 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."

Among other findings, it was held:

"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."

Criminal Procedure and Article 21

The Court, while discussing the scope of Article 21 of the Constitution (right to life and personal liberty) observed 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."

Reliance was also placed on various decisions like Menka Gandhi's case, Subramanian Swamy v. CBI and Commissioner of Police, Delhi v. Registrar, Delhi High Court. The Court stated that Article 21 of the Constitution makes it clear that the procedure in criminal trials must be "right, just and fair, but not arbitrary."

Proper remedy under 156(3), not Article 226

The Court concluded that in cases where there is need for 'proper investigation', the powers vested with the Magistrate are wide enough to to issue appropriate directions..

Reliance was placed on various rulings including the Supreme Court's ruling in Vinubhai Haribhai Malviya v. State, where it was observed 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."

Ultimately, the Court advised the Petitioners to approach the concerned Magistrate and dismissed all the petitions accordingly.

The Court said that the informant/ petitioner 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."