The right to just and fair investigation is a fundamental right under Article 21 of the Constitution of India. In the case of Menka Gandhi vs. Union of India AIR 1978 SC 597, the Supreme Court held that the procedure in criminal trials must be right, just, and fair. Therefore, you have the right to approach the court to direct the investigating officer to conduct a fair investigation.
Remedy against unfair investigation
If you feel that the investigation is unfair, the Code of Criminal Procedure (CrPC) empowers the judicial magistrate to ensure a just and fair investigation. However, it is the primary duty of the investigating officer to conduct a fair investigation [Mohd. Yousuf vs. Smt. Afaaq Jahan (2006) 1 SCC 627]. If the police officer is doing an unfair investigation, taking favor of the accused, or ignoring material pieces of evidence, it casts a shadow of doubt on the investigation.
You can approach the concerned judicial magistrate under section 156(3) of the CrPC to order a proper investigation. If the magistrate finds a serious defect in the investigation, they can pass any suitable order under section 156(3) of the CrPC. The magistrate has the power to pass an appropriate order to ensure the fairness of the investigation. In the case of Sakiri Vasu vs. State of U.P. and others (2008) 2 SCC 409, the Supreme Court held that the judicial magistrate can monitor the investigation under section 156(3) of the CrPC.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. 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.Sakiri Vasu vs. State of U.P. and others (2008) 2 SCC 409
What to do if police officer doing unfair investigation?
To ensure a fair investigation, you should file an application under section 156(3) crpc before the judicial magistrate. In this application, you should request the court to call for the case diary and progress report of the investigation from the investigating officer (IO).
Once the IO produces the case diary, he should inform the court about the steps he has taken during the investigation. Then, you should draw the court’s attention to any defects or irregularities committed by the IO that have resulted in an unfair and biased investigation.
If the magistrate finds these irregularities to be fatal and concludes that the investigation is a mockery of justice, he shall pass appropriate orders to ensure a fair investigation. You should also present evidence to show the kind of unfairness committed by the IO during the investigation.
The magistrate can then monitor the investigation until the filing of the report under Section 173(2) crpc. He can order the collection of certain evidence, record statements of eyewitnesses, or take any other action he deems fit and proper in the case.
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.Sakiri Vasu vs. State of U.P. and others (2008) 2 SCC 409
It is advised to file an application under Section 156(3) of the Criminal Procedure Code (CrPC) before the judicial magistrate instead of directly filing a writ petition under Article 226 of the Constitution. This is because the magistrate has an implied power to monitor the investigation and pass any necessary orders to ensure a fair investigation under Section 156(3) CrPC.
It should be noted that while a magistrate cannot interfere with the investigation by the police, as held by the Supreme Court in Union of India v. Prakash P. Hinduja (2003) 6 SCC 195 and the Privy Council in Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 48, the Supreme Court in Sakiri Vasu case has clarified that the magistrate has an implied power under Section 156(3) CrPC to monitor the investigation and pass appropriate orders, but cannot himself investigate.
Therefore, it is advisable to file an application under Section 156(3) CrPC before the concerned magistrate, who can call for the case diary and progress report of the investigation from the investigating officer, and take appropriate steps to ensure a fair investigation if there are any defects or irregularities in the investigation. This is an effective remedy against improper and unfair investigation, and it is important to exhaust this remedy before approaching the High Court with a writ petition.
Question: Can a complaint under 156 (3) crpc be filed against a police officer for not investigating a case properly and not discharging his duty. Is there any case law related to this?
Asked from: Uttar Pradesh
No, you have a remedy to approach the judicial magistrate for monitoring the investigation and pass necessary order or direction to ensure free and fair investigation. You should approach the judicial magistrate under Section 156(3) crpc for such an order or direction.
In the Sakiri Vasu case the supreme court has held that the judicial magistrate has the power to monitor the investigation and pass any order required for the fair investigation.