Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage And Others, Supreme Court Of India, Judgment, Law, casemine.com

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Case Number

Civil Appeal No. 766 of 2010 with No. 767 of 2010, decided on April 12, 2010

Disposition

allowed

Judges

Justice Markandey Katju
Justice A.K. Patnaik

Acts

Section 156(3) CrPC
Article 226 of the Constitution of India

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Smart Summary

Factual and Procedural Background

Two appeals were preferred against the common judgment of the High Court of Bombay dated 8 September 2009 (2009 SCC OnLine Bom 2251). In paragraph 9 of that judgment the High Court had replaced the then Investigating Officer with a Special Investigating Officer to look into the alleged offence. The specific factual allegations underlying the criminal case are not reproduced in the Supreme Court’s order, which confines itself to the procedural history and the legality of the High Court’s direction.

Legal Issues Presented

Whether a High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution, can direct the appointment of a Special Investigating Officer when the complainant has not first availed the remedy under Section 156(3) of the Code of Criminal Procedure (CrPC).
Whether the impugned Bombay High Court order was sustainable in view of the principles laid down in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409; AIR 2008 SC 907.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sakiri Vasu v. State of U.P., (2008) 2 SCC 409; AIR 2008 SC 907	The appropriate remedy for grievances about non-registration of an FIR or improper investigation is to approach the Magistrate under Section 156(3) CrPC, who may order registration, ensure proper investigation, and, if necessary, recommend a change of Investigating Officer. High Courts should not be approached directly via writ petitions for such relief.	The Supreme Court relied exclusively on this precedent to hold that the High Court should not have entertained the writ petition or altered the Investigating Officer. On that basis the impugned judgment was set aside and the matter redirected to the Magistrate under Section 156(3) CrPC.

Court's Reasoning and Analysis

The Court reiterated the principle laid down in Sakiri Vasu that complainants dissatisfied with police inaction must first seek recourse before the jurisdictional Magistrate under Section 156(3) CrPC. Entertaining writ petitions for such relief would inundate High Courts and divert them from their primary functions. Because the High Court had overstepped this settled procedural framework by directly appointing a Special Investigating Officer, its order was deemed untenable. The Supreme Court therefore quashed the High Court’s directive and vested responsibility with the Magistrate to:

Ensure registration of the FIR (if required) and oversee a proper investigation;
Exercise discretion to recommend a change of Investigating Officer to the Senior Superintendent of Police/Superintendent of Police;
Monitor—but not personally conduct—the investigation, uninfluenced by any observations in the High Court’s judgment.

Holding and Implications

APPEALS ALLOWED; BOMBAY HIGH COURT JUDGMENT SET ASIDE.

Direct Effect: The investigation is remitted to the jurisdictional Magistrate under Section 156(3) CrPC, who may take all necessary steps to secure a proper investigation, including recommending a change of Investigating Officer.

Broader Implications: The decision re-affirms Sakiri Vasu and underscores that litigants must exhaust the statutory remedy under Section 156(3) CrPC before invoking the writ jurisdiction of High Courts for grievances relating to police investigation. No new legal precedent is created, but existing procedural discipline is reinforced.

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Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage And Others

Order

1. Leave granted. These two appeals have been filed against the common impugned judgment of the High Court of Bombay dated 8-9-2009 2009 SCC OnLine Bom 2251. The facts in detail have been set out in the impugned judgment and hence we are not repeating the same here. By the impugned order, the Bombay High Court has, in para 9 of its order, changed the investigating officer and appointed a Special Investigating Officer to investigate into the alleged offence.

2. This Court has held in Sakiri Vasu v. State of U.P (2008) 2 SCC 409, AIR 2008 SC 907, 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) CrPC. If such an application under Section 156(3) CrPC 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. We have said this in Sakiri Vasu case (2008) 2 SCC 409, AIR 2008 SC 907 because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

3. We are of the opinion that 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. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC 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 monitor the investigation.

4. In view of the settled position in Sakiri Vasu case (2008) 2 SCC 409, AIR 2008 SC 907, the impugned judgment 2009 SCC OnLine Bom 2251 of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP 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 (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.

5. The appeals are allowed in the above terms. In view of the aforesaid order, no orders need be passed on the application for intervention and it is disposed of accordingly.

Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage And Others

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