IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : INDIAN PENAL CODE
Judgment reserved on:
13.09.2010
Judgment delivered on:
18.05.2011
Crl. Misc.(C) No. 3494/2008
Radha ……
Petitioner
Through: Mr. Anil Soni, Adv.
Vs.
State ……Respondent
Through: Mr. Pawan
Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this petition
filed under Section 482 of the Code of Criminal
Procedure, 1973, the petitioner has approached this Court to
seek directions to direct the
police to register an FIR and investigate the case
expeditiously.
2. The present
petition was filed by the petitioner on 3.11.2008 and the same
was taken up by this Court on 5.11.2008 in the presence of
the State Prosecutor. The
case in hand depicts
the sordid, despotic and nepotic
functioning of the Delhi Police
who in a most brazen, blatant and contemptuous manner have flouted and defied
not
only the mandate of
the law as envisaged under Section 154 of Cr.P.C., but also various
directions given by the Hon’ble Apex Court and the High Court pronouncing that once
any information disclosing the commission of a cognizable
offence is brought before the
police officer of a police station, then the concerned police officer is bound to register
an FIR.
3. Before I proceed
to discuss the legal position and the
approach of the
concerned police officials including that of the rank of not
less than the Additional
Commissioner of Police and the Commissioner of Police, it
would be apt to give a
sequence of facts which compelled the petitioner to approach this court by invoking the
inherent powers of this Court under Section 482 of the Code of Criminal
Procedure. The
petitioner happens to be an unfortunate sister of a 22 year
old young boy namely Brijesh
Kumar @ Birju who had gone out from his house i.e. House No. B-9/427, Sector-3,
Rohini, Delhi on the evening of 05.08.2007 for some work and
did not return until
midnight. When
Brijesh did not return till midnight, his mother went out in search of him
and later on approached the local police so as to report
missing of her son. The police,
however, did not oblige her and the mother came back with
the hope that her son Brijesh
may come back home soon. On 6.8.2007, someone informed the
police that the dead
body of a person is lying in the park of B-9, Sector-3,
Rohini. The petitioner and her
family members after having come to know about the said
information reached the spot
and were shocked to find the dead body of Brijesh. As per the petitioner, she and the
other family members had noticed some injuries on the head
and other parts of the body
of the deceased. The
deceased was removed by the police to Baba Saheb Ambedkar
Hospital by PCR Van bearing No. C-43 and thereafter the body
was referred to the
mortuary of Sanjay Gandhi Memorial Hospital for
postmortem. The petitioner and her
mother visited the police station for the registration of
the case but the police refused to
register any case. The petitioner then sent telegrams to
various higher authorities
requesting them to give directions to the concerned SHO of
P.S. Rohini to register an FIR
and for thorough investigation of the case. The petitioner had also apprised the police
that on 3.8.2007 a quarrel between the deceased and one
Vaibhav Gautam @ Michael
had taken place over some girl and the deceased was
threatened by the said Michael that
he would be killed.
Since the police did not register any FIR, therefore, the petitioner
filed a writ petition before this court vide W.P.(C) No.
1096/2007 to seek directions for
the registration of an FIR.
The High Court did not entertain the said writ petition filed by
the petitioner in view of the judgment of the Apex Court in
the case of Aleque Padamsee
& Ors. Union of India & Ors. (2007)6 SCC 171 and
directed the petitioner to approach
the court of the Metropolitan Magistrate under Section
156(3) of Cr.P.C., instead of
invoking the writ
jurisdiction of this court.
Pursuant to the said direction of the High
Court, the petitioner filed a complaint case before the
concerned Metropolitan Magistrate,
Delhi on 29.8.2007, but even after the lapse of more than
one year, neither the Magistrate
give any direction to the police to investigate the said
crime nor did the concerned police
officials take any steps in this direction. It is
also the case of the petitioner that the
learned Magistrate allowed the police a free hand for over a
period of one year without
directing registration of a case involving such a heinous
and grave crime of the nature of
murder and also that the police started conducting a
preliminary inquiry first at the level
of the local police and then by the Crime Branch but did not
choose to register an FIR.
4. Feeling aggrieved
with the lackadaisical approach of the police as well as
that of the concerned Magistrate, the petitioner approached
this court to seek directions
for the registration of an FIR and for investigation of the
case. Taking a serious note of
the conduct of the police in the present case, this court
vide order dated 5.11.2008
expressed its displeasure not only on the inaction of the police but also on the casual
approach of the concerned Magistrate. In the said
order dated 5.11.2008 this court
observed as under:
“It is most shocking that the police has not registered the
FIR for such a heinous crime
which had taken place on the intervening night of 5th/6th
2007. Time and again the Apex Court as well as various High Courts have clearly
mentioned that on the filing of the
complaint disclosing commission of cognizable offence, the
police should register an
FIR. In the present
matter even after a lapse of more than
one year the police brazenly
remained blindfolded in not registering an FIR and
even the learned M.M. has not
discharged his judicial functions in the right earnest as no
directions till date have been
given by the Magistrate for the registration of an FIR. The Joint Commissioner of Local
Police Station as
well as Joint Commissioner, Crime Branch shall explain the reasons for
such serious dereliction
on the part of the concerned police officers of local police and
of Crime Branch for their deviant conduct in not registering
an FIR in a murder case by
way of affidavit. The
officers will also explain as to what action has been initiated
against the delinquent officers for their such despicable
conduct. The affidavits be filed
within a period of one week.”
Pursuant to the said directions given by this court, two of
the senior officers of the Delhi
Police of the rank of Joint Commissioner of Police and Additional Commissioner of
Police had filed their respective affidavits. Since both the
said affidavits filed by the said
senior officers were on the same lines, it would be relevant
to refer to the stand taken by
the Delhi Police in the affidavit filed by the
Additional Commissioner of Police, Crime
Branch as under:
“I, Satyendra Garg, Additional Commissioner of Police,
Crime, Delhi Police, Police
Headquarters, Indraprastha Estate, New Delhi do hereby
solemnly affirm and declare as
under:-
1. That on 6/8/07 at 6:20 AM information was received vide
DD No.6A from the PCR
that a male dead body was lying in the park of Pkt.B/9,
Sector 3, Rohini, Delhi. The call
was marked to SI Jagdish Chander of PS Rohini. SI Jagdish
Chander reached the spot and
found that the dead body was removed by PCR to Baba Saheb
Ambedkar Hospital,
Rohini, Delhi. After reaching hospital SI Jagdish Chander
collected MLC No.4045/07 of
Brijesh Singh s/o Dharampal Singh r/o B-9/427, Sec.3,
Rohini, Delhi who was declared
as brought dead in the hospital with alleged history of
being found lying in the park in
water as told by police personnel. At the time of
preparation of MLC mother of deceased
Smt. Shanti Devi was also present in the hospital and her
name was mentioned in the
MLC itself by the doctor present on duty. (Photograph and
copy of MLC annexed as A &
B).
2. That on 6/8/07 the post mortem was conducted on the dead
body of deceased Brijesh
Singh at Sanjay Gandhi Memorial Hospital, Delhi. The autopsy
surgeon described “no
external injury mark seen on deady body”. Viscera of
deceased was preserved by the
autopsy surgeon to rule out any common poisoning. Inquest
proceeding u/s 174 Cr.P.C.
was conducted by the local police. The cause of death was
kept pending till report of
chemical analysis of the viscera was received. During
inquest proceeding, various
persons were examined by local police. On 28.8.07 the
viscera of the deceased was sent
to Forensic Science Laboratory, Rohini, Delhi for chemical
examination. (PM report
annexed as C) 3. That on 11.1.08 Smt. Radha made complaint
before Commissioner of Police that her
brother Brijesh Singh had been murdered. The complaint of
Smt. Radha was marked to
Crime Branch for enquiry on 19/1/08. Accordingly enquiry was
initiated by Crime
Branch.
4. That during enquiry, Smt. Radha, sister of deceased was
examined on 22/1/08. In her
statement she stated that on 4/8/07 her brother Brijesh
Singh told her that he had an
altercation with Vaibhav Gautam @ Michael over a girl who
was studying a computer
course in Rohini and Vaibhav Gaurtam wanted to make
friendship with that girl. She also
stated that one year ago Manish Gandhi had an altercation
with Brijesh Singh, and
Manish Gandhi had made a complaint to police against Brijesh
Singh. In the police
station, the father of Manish Gandhi had threatened Brijesh
Singh with dire
consequences. On 5/8/07 when her brother did not return to
home, her mother called Smt.
Radha and told her about the incident. She further stated
that when her mother reached
PS Rohini, police officials advised them to look for Brijesh
Singh for some more time.
They searched for their brother but due to rain they were
not able to find their brother. On
6/8/07 at about 6.00 am someone from the locality came to
their house and informed
them that the body of her brother was lying inside the park
in a water logged tree pit. She
stated that she along with her mother saw the dead body of
her brother in a water logged
tree pit inside park in front of their home. Police removed
the dead body to Baba Saheb
Ambedkar Hospital, Delhi. Postmortem was conducted at
hospital and after postmortem
the dead body of Brijesh Singh was handed over to them and
they cremated the dead
body.
5. That during enquiry at Crime Branch, Vaibhav Gautam @
Michael and Manish
Gandhi, suspected by Smt. Radha were interrogated at length.
The following persons
were also examined:-
i) SI Jagdish Chander, Initial I.O. of PS Rohini, who
conducted Inquest
Proceedings.
ii) Neelam Sharma s/o Dinesh Chand Sharma r/o 47, Pkt B-9
Sec.3, Rohini Delhifriend of the deceased.
iii) Jitender Dahiya s/o Randhir Singh r/o WZ-3158,
Mahindera Park, Rani Bagh,
Delhi-friend of the deceased.
iv) Smt. Parmila w/o Ramgopal r/o F-36, Sector 4, Vijay
Vihar, Delhi-Cellphone of
deceased was recovered from her.
v) Raju s/o Tika Ram r/o Vill. Dairy, PO Bayana, PS
Bhavnoli, Distt. Sagar, MP- he
found the cell phone on the road and sold it to Parmila.
6. That during enquiry SI Jagdish Dahiya of PS Rohini, Outer
District was examined.
He had been conducting
the Inquest Proceeding of deceased
Brijesh Singh. During
enquiry he stated that initially the family members of
deceased did not give any
statement regarding death of Brijesh Singh. During enquiry
he stated that initially the
family members of deceased did not give any statement
regarding death of Brijesh
Singh. Subsequently, they began suspecting Vaibhav Gautam as Brijesh Singh had a
scuffle with Michael
over a girl a few days prior to his death.
7. That during enquiry Vaibhav Gautam stated that on the day of incident he was not in
Delhi. He had gone to
fetch “Kanwad” from Hardwar. He returned
back to Delhi on
10/8/08. He produced
a ticket of Rs.10/- issued to vehicle No DL3CW 9350 as Marg
Sudharan Shulk, Rajaji Rashtriya Park, Dehradun
(Uttaranchal). Vehicle No. DL3CW
9350 is the registration number of Indica car which belongs
to his father. He had gone to
Hardwar by his car
and returned back carrying the “Kanwad” on foot.
8. That Manish Gandhi
stated that at the time of incident
he was not in India. He had
been in Atlanta,
USA. He came back to Delhi on 8/8/07. He produced the photocopy of
passport and visa to prove his point.
9. That during the
enquiry Neelam Sharma was also
interrogated. He was the last
person to see Brijesh Singh alive. He stated that on the night of 5/8/07 Brijesh Singh
had consumed alcohol
with his friends in Jheel Wala Park situated
near Rani Bagh. At
about 12.30 am on 6.8.07 Neelam Sharma left him alone in the
park of Pkt B/9, Sector 3,
Rohini, Delhi which is right
in front of Brijesh Singh’s house. Brijesh Singh told Neelam
Sharma that his family members would scold him if he reached home late in drunken
position.
10. That the mobile
phone of the deceased had been missing
since the day of the
incident. Call details of
his telephone number 9818546606 were analysed. It was
found
that the last call
was an outgoing call on 5/8/07 at 10.30 pm to telephone 9313877834.
This telephone number belongs to Jitenra Dahiya s/o Randhir
Singh Dahiya r/o WZ-
3158, Rani Bagh Delhi. The conversation lasted for 12
seconds. Jitender Dahiya is a
friend of Neelam
Sharma.
11. That during
enquiry Jitender Dahiya stated that on 5/8/07 he along with his friend
took drinks on roof
of his house. From about 7 to 7.30 P.M. Neelam Sharma
made
several calls to him. Neelam Sharma told him that he had some altercation with his girl
friend and he wanted
to have drinks. Jitender Dahiya received Neelam Sharma along
with one frined who was already in drunken position near a barber’s shop near his house.
The person was introduced to Jitender Dahiya by Neelam
Sharma as his friend Brijesh
Singh. Jitender Dahiya
bought one bottle of McDowell
whisky from a wine shop. After
that, the friends of
Jitender Dahiya and Neelam Sharma and Brijesh Singh went to Jheel
Wala Park, Rani Bagh, Delhi and all of them consumed alcohol
in a picnic hut at Jheel
Wala Park. At that
time, according to Jitender Dahiya, due to
heavy consumption of
alcohol, Brijesh Singh started staggering. Jitender Dahiya asked Neelam Sharma
to take
Brijesh Singh home.
Then all of them rode on two
bikes to leave Brijesh Singh at his
home. When they reached
near the house
of Brijesh Singh, Neelam Sharma told
Jitender Dahiya that whenever Brijesh Singh consumed
so much liquor, he usually slept
outside the park in front of his home instead of going
home. Then Jitender Dahiya along
with friends left Neelam Sharma and Brijesh Singh inside the park and left for their
homes.
12. That in the
enquiry conducted so far nothing was found
to suggest that Vaibhav
Gautam and Manish Gandhi were involved in the death of Brijesh Singh. Both of them
were not in Delhi on the day of incident. 13.
That the IMEI no. 357948000653750 of the missing phone was sent to all
mobile
phone service providers in India. The IMEI number of the missing mobile phone was
traced in Delhi circle on mobile number 9999698068. On the
analysis of call details of
the mobile phone, it was found that the missing mobile phone was used by Smt. Parmila,
w/o Ram Gopal r/o F-36, Sector-4, Vijay Vihar, Delhi. She was examined on 9/9/08 and
she stated that she had bought the mobile phone from one Raju s/o Tika Ram
R/o Vill.
Dairy, PO & PS Minoli, Distt. Sagar, M.P. who was a
tenant in the same house. She
further stated that
Raju had not paid his rent and he
needed money, so he sold the
mobile phone to her for Rs.900/-.
14. That Raju s/o Tika Ram was interrogated and he
stated that he had found the mobile
phone near the petrol pump in Sec.3 Rohini about 10/12
months ago. He needed money
to pay his rent and he sold the mobile phone to Smt.
Parmila. The mobile phone was
recovered and seized
through a memo and deposited in malkhana
of PS Rohini.
15. That the
result of chemical analysis of the viscera of deceased Brijesh Singh was
received from
Forensic Science Laboratory, Delhi.
Ethyl alcohol 150.1 mg/100ml of
blood was found in the
viscera. On 9/9/08 the Forensic
Science Laboratory report along
with post mortem report of deceased Brijesh Singh was
submitted before the autopsy
surgeon Sanjay Gandhi Memorial Hospital, Delhi for giving
the cause of death. The
autopsy surgeon reported that “ after going through P.M.
report and examination of FSL
report. I am of the
opinion that person had a fall in
drunken state and had a head injury
as written in PM
report and that injury is sufficient to
cause death.” (FSL report along
with subsequent PM report annexed as D and E)
16. That on 08.07.08
a detailed status report listing out the steps taken was
submitted
in the Hon’ble Court
of Sh. M.C. Gupta, ACMM, Rohini during the hearing of
complaint of Smt.
Radha u/s 156 (3) Cr. P.C. Thereafter,
progress reports were duly
filed on 4.8.08 and 10.9.08 in the Hon’ble Court. After hearing arguments
the Hon’ble
Court had adjourned
the matter for 12/11/08. On
12/11/08, the matter was fixed for
17.11.08.
In view of the facts
and circumstances it is most respectfully submitted from the
enquiry conducted so far, the report of Forensic Science Laboratory and the final
opinion
given by the autopsy surgeon regarding cause of death, there
is nothing to suggest that the
deceased Brijesh Singh died due to any criminal act.
However, the respondent is willing
to abide by any direction issued by the Hon’ble Court in the
matter.”
Unsatiated by the explanation given by the said two senior
officers of Delhi Police in
their respective affidavits, this court vide order dated
18.11.2008 gave directions to the
Commissioner of Police to explain by way of an affidavit as
to what prevented the police
from registering an FIR on the complaint filed by the sister
of the deceased suspecting
murder of her brother.
The Commissioner of Police was also directed to explain as to
why the police had failed to follow the mandate of law envisaged under Section 154
Cr.P.C. and the law laid down by the Apex Court in Ramesh
Kumari Vs. State (NCT of
Delhi) & Ors AIR 2006 SC 1322. The gist of the order dated 18.11.2008 is
reproduced
as under: “The case in hand reflects total mal-functioning,
insensitivity, apathy and inaction of the
police as they sat on the complaint of the sister of the
deceased for over more than one
year but did not register an FIR. The sister of the deceased had earlier filed
a writ
petition when she was directed to approach the lower court
to seek remedy. The lower
court also did not give any directions till yesterday and as
per the affidavits filed by these
two police officers, the inquiry was being conducted into
the incident but without the
registration of any FIR.
In both the affidavits filed by the police officers no reasons have
been given as to what prevented the police to first register
an FIR and then proceed with
the necessary investigation or inquiry. Indisputably, in this case a young person of 22
years of age lost his
life and his sister had approached the police authorities to register an
FIR but failing in
her endeavour the petitioner approached
this court by way of filing the
writ petition and then
on the direction of the court she approached the Ld. M.M. by filing
an application under Section 156 (3) Cr.P.C. as no steps
were taken by the police to
register an FIR. The
contention of the counsel for the State is far from convincing that
since the police did not suspect any foul play, therefore,
no FIR was registered. Once the
real sister had suspected of a foul play in the matter and
had been approaching the police
to register an FIR, there could not have been any ground for
not registering an FIR and
that too in a case where a person has died in mysterious
circumstances. No doubt, in a
given case the police can carry out a preliminary inquiry
but the settled legal position is
to first register an FIR and then to carry out
investigation. The police could not have
straight away relied upon the conclusions given in the
postmortem report and in the FSL
report to reach to its own decision, more particularly, when
the sister of the deceased
suspected a foul play and had gone to the extent of raising
finger at some person behind
the said murder.
Both these officers of the
rank of Joint Commissioner of
Police and
Additional Commissioner of
police have given justification for not registering an FIR
and if such kind of explanation can be given by such high
ranking officers, then nothing
better can be expected from the lower hierarchy of Delhi
Police. It is thus evident that in
the present case police has virtually violated the
directions given by the Apex Court in
Ramesh Kumari Vs. State (NCT Of Delhi) and Ors. ; AIR 2006
SC 1322. Relevant para
of the said judgment is reproduced as under:-
4. That the Police Officer mandatorily registers a case on a complaint of a cognizable
offence by the citizen under Section 154 of the Code are no
more res integra. The point of
law has been set at rest by this Court in the case of State
of Haryana and Ors. v. Bhajan
Lal and Ors. 1922 Supp (1) SCC 335. This Court after
examining the whole gamut and
intricacies of the mandatory nature of Section 154 of the
Code has arrived at the finding
in paras 31 & 32 of the judgment as under:
31. At the stage of registration of a crime or a case on the
basis of the information
disclosing a cognizable offence in compliance with the
mandate of Section 154(1) of the
Code, the concerned police officer cannot embark upon an
enquiry as to whether the
information, laid by the informant is reliable and genuine or otherwise and refuse to
register a case on the ground that the information is not
reliable or credible. On the other
hand, the officer in charge of a police station is
statutorily obliged to register a case and
then to proceed with the investigation if he has reason to
suspect the commission of an
offence which he is empowered under Section 156 of the Code
to investigate, subject to
the proviso to Section 157. (As we have proposed to make a
detailed discussion about the power of a police officer in the field of
investigation of a cognizable offence within the
ambit of Sections 156 and 157 of the Code in the ensuing
part of this judgment, we do
not propose to deal with those sections in extenso in the present context.) In case, an
officer in charge of a police station refuses to exercise
the jurisdiction vested in him and
to register a case on the information of a cognizable
offence reported and thereby violates
the statutory duty cast upon him, the person aggrieved by
such refusal can send the
substance of the information in writing and by post to the
Superintendent of Police
concerned who if satisfied that the information forwarded to
him discloses a cognizable
offence, should either investigate the case himself or
direct an investigation to be made
by any police officer subordinate to him in the manner
provided by Sub-section (3) of
Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the
legislature in its collective wisdom
has carefully and cautiously used the expression
"information" without qualifying the
same as in Section 41(1)(a) or (g) of the Code wherein the
expressions, "reasonable
complaint" and "credible information" are
used. Evidently, the non-qualification of the
word "information" in Section 154(1) unlike in
Section 41(1)(a) and (g) of the Code may
be for the reason that the police officer should not refuse
to record an information relating
to the commission of a cognizable offence and to register a
case thereon on the ground
that he is not satisfied with the reasonableness or
credibility of the information. In other
words, 'reasonableness' or 'credibility' of the said
information is not a condition precedent
for registration of a case. A comparison of the present
Section 154 with those of the
earlier Codes will indicate that the legislature had
purposely thought it fit to employ only
the word "information" without qualifying the
said word. Section 139 of the Code of
Criminal Procedure of 1861 (Act 25 of 1861) passed by the
Legislative Council of India
read that 'every complaint or information' preferred to an
officer in charge of a police
station should be reduced into writing which provision was
subsequently modified by
Section 112 of the Code of 1872 (Act 10 of 1872) which
thereafter read that 'every
complaint' preferred to an officer in charge of a police
station shall be reduced in writing.
The word 'complaint' which occurred in previous two Codes of
1861 and 1872 was
deleted and in that place the word 'information' was used in
the Codes of 1882 and 1898
which word is now used in Sections 154, 155, 157 and 189(c)
of the present Code of
1973 (Act 2 of 1974). An overall reading of all the Codes
makes it clear that the
condition which is sine qua non for recording a first
information report is that there must
be an information and that information must disclose a
cognizable offence.
Finally, this Court in para 33 said:
33. It is, therefore, manifestly clear that if any information disclosing a cognizable
offence is laid before an officer in charge of a police
station satisfying the requirements
of Section 154(1) of the Code, the said police officer has
no other option except to enter
the substance thereof in the prescribed form, that is to
say, to register a case on the basis
of such information.
5. The views expressed by this Court in paragraphs 31, 32
and 33 as quoted above leave
no manners of doubt that the provision of Section 154 of the
Code is mandatory and the
concerned officer is duty bound to register the case on the
basis of such an information
disclosing cognizable offence. It would be thus evident that
the two Senior Police Officers in their affidavits have failed
to give any justifiable reason for non-registration of a
case despite untiring efforts made
by the petitioner.
Let the Commissioner of Police by way of an affidavit
explain as to what prevented the
police from registering an FIR on the complaint of the sister of the deceased who
suspected murder of her brother and secondly, why the police
failed to follow the
mandate of law envisaged under Section 154 Cr.P.C. and the
law laid down by the Apex
Court in Ramesh Kumari Vs. State (NCT Of Delhi) and Ors. ;
AIR 2006 SC 1322
regarding registration of an
FIR after receiving the information of commission of a
cognizable offence.
Let the affidavit be filed within a period of two weeks.”
5. Pursuant to the
said directions, Mr. Yudhvir Singh Dadwal, the then
Commissioner of Delhi Police had filed his affidavit dated
1.12.2008. On facts, the
Commissioner of Police reiterated the same sequence of
events as narrated by the
Additional Commissioner of Police in his affidavit. The Commissioner of Police in his
affidavit, however, tried to defend the conduct of the
police officers in not registering an
FIR by taking shelter under the provision of Section 174 of
Cr.P.C. and also in view of
the observations of the Hon’ble Apex Court in Rajinder
Sinigh Katoch Vs. Chandigarh
Administration & Ors. (2007)10 SCC 69, wherein the
Hon’ble Apex Court observed that
in a given case the preliminary enquiry can also be
conducted by the concerned police
officers in order to
find out as to whether the FIR sought to be lodged has any
substance or not. The
Commissioner of Police in para 7(i) of his affidavit admitted the
fact that between
7.8.2007 to 29.5.2008 the petitioner made several complaints to the
police and other authorities requesting for registration of
an FIR in the said case. In para
9 of the affidavit the Commissioner of Police took a stand
that in view of the observations
made in the inquest
report, post mortem report and initial findings, the concerned I.O.
did not think it appropriate
to register a case of murder.
In para 10, however, the
Commissioner of Police stated that pursuant to the direction
dated 17.11.2008 given by
the learned ACMM under Section 156(3) Cr.P.C., an FIR
bearing No. 26/08 was
registered by the police u/s 302/392/120-B/34 IPC. The relevant paras of the said
affidavit of the Commissioner of Police are also reproduced
as under:
“………..
5. It is the submission of the deponent that whenever
information of a cognizable
offence is made out an FIR is registered and the matter is
investigated. However, the
Hon’ble Supreme Court of India in Rajinder Singh Katoch Vs.
Chandigarh
Administration and others have laid down that although the
officer In charge of a police
station is legally bound to register a first information
report in terms of Section 154 of the
Code of Criminal Procedure, if the allegations made by them
gives rise to an offence
which can be investigated without obtaining any permission
from the magistrate
concerned; the same, by itself, however, does not take away
the right of the competent
officer to make
a preliminary enquiry, in a given case,
in order to find out as to whether
the first information sought to be lodged had any substance
or not. This coupled with provision of Section 174 Cr.P.C. guides police as
regards unnatural deaths and other
cases, reported to police. This was also followed in the
complaint of Smt. Radha and the
death of Brijesh Singh.
6. It is respectfully
submitted that the very purpose of conducting inquest
proceeding is to find out the cause of death. While conducting inquest if at any stage a
cognizable offence is made out an FIR is registered and
investigation taken thereon and a
final report in terms of Section 173 Cr.P.C. is filed. In a case where, however,
commission of cognizable offence is not made out the inquest
proceedings are only
conducted wherein the cause of death is ascertained by
getting the post mortem
conducted and also recording of statements of the relevant
witnesses. After the
conclusion of inquest, unlike a report u/s 173 Cr.P.C. to
the Magistrate, a report is sent to
the concerned SDM, who takes a final decision on the same in
terms of Section 174
Cr.P.C.
7………..
(i) That from 7.8.07 to 29.5.08 Mrs. Radha made several
complaints to the police and
other authorities upon which the factual report was
submitted to the concerned authorities
by the SHO and subsequently by the DCP Outer District and
DCP Vigilance. The DCP
Vigilance also sent a report to NHRC in response to the
complaint of petitioner. It was
also reported that action would be taken after receiving the
final report regarding the
cause of death. Copy
of the complaint dated 9.8.2007 sent by the petitioner to the
deponent is annexed as Annexure R-3.
……..
8. (a) Smt. Radha had
made a complaint before the deponent
that her
brother Brijesh Singh
had been murdered. In her
complaint she alleged that her brother
Brijesh Singh @ Birju went on 5/8/07 at about 6.P.M. On next
date 6/8/07 the dead body
of her brother was found in a park. She suspected that her brother Brijesh Singh
was
murdered. She further made allegations that her brother had
some quarrel on 3.8.08 with
Vaibhav Gautam @ Michael who was known to her brother
Brijesh Singh and he had
threatened to kill Brijesh. She had requested for
registration of a case. The complaint of
Smt. Radha was marked to Crime Branch for enquiry on
19/1/08. Accordingly an
enquiry was initiated by the Crime Branch.
(b) The enquiry was
marked to Inspector R.K. Meena, Anti-Homicide Section
of Crime Branch.
During the course of enquiry Smt. Radha, sister of deceased was
examined on 22/1/08.
In her statement she stated that on 4/8/07 her brother Brijesh
Singh had told her that he had an altercation with Vaibhav
Gautam @ Michael over a girl
who was studying in a computer course in Rohini and Vaibhav
Gautam wanted to make
friendship with that girl.
She also stated that one year ago Manish Gandhi had an
altercation with Brijesh Singh, and Manish Gandhi had made a
complaint to police
against Brijesh Singh.
In the police station, the father of Manish Gandhi had threatened
Brijesh Singh with dire consequences. On 5.8.07 when her brother did not return home,
her mother called her daughter Ms. Radha and told her about
the incident. She further
stated that when her mother reached PS Rohini, police
officials advised them to look for
Brijesh Singh for some more time. They searched for their brother but due to
rain they
were not able to find Brijesh Singh. On 6.8.07 at about
6.00 A.M. someone from the
locality came to
their house and informed them that the body of Brijesh Singh was lying
inside the water logged park near a tree pit. Smt. Radha stated that she along
with
her mother saw the dead body of her brother in the water
logged park near a tree pit in
front of their home.
Police removed the dead body to Baba Saheb Ambedkar Hospital,
Delhi. Post mortem
was conducted at the hospital and after post mortem the dead body
of Brijesh Singh was handed over to them and they cremated
the dead body.
…
(k) That during enquiry Jitender Dahiya stated that on
5.8.07 he along with his
friends took drinks on roof of his house. From about 7 to 7.30 P.M. Neelam Sharma
made several calls to him.
Neelam Sharma told him that he had some altercation with his
girl friend and he wanted to have drinks. Jitender Dahiya
received Neelam Sharma along
with his friend who was already in drunk position near a
barber’s shop near his house.
The person was later introduced to Jitender Dahiya by Neelam Sharma as his friend
Brijesh Singh. Jitender Dahiya bought one bottle of McDowell
whisky from a wine shop.
After that, the friends of Jitender Dahiya and Neelam Sharma
and Brijesh Singh went to
Jheel Wala Park, Rani Bagh, Delhi and all of them consumed
alcohol in a picnic hut at
Jheel Wala Park. At
that time, according to Jitender Dahiya, due to heavy consumption
of alcohol Brijesh Singh started staggering. Jitender Dahiya asked Neelam Sharma to
take Brijesh Singh to his home. When they reached near the
house of Brijesh Singh,
Neelam Sharma told Jitender Dahiya that whenever Brijesh
Singh consumed so much
liquor, he usually slept inside the park in front of his home
instead of going home. After
that Jitender Dahiya along with friends left Neelam Sharma
and Brijesh Singh inside the
park and left for their homes.
…
(o) The result of chemical analysis of the viscera of deceased Brijesh Singh was
received on 4.9.2008 from Forensic Science Laboratory,
Delhi. According to FSL report
Ethyl alcohol 150.1 mg/100ml of blood was found in the
viscera. On 9.9.08 the Forensic
Science Laboratory report along with post mortem report of
deceased Brijesh Singh was
submitted before the autopsy surgeon Sanjay Gandhi Memorial
Hospital, Delhi for giving
the cause of death.
The autopsy surgeon reported that “after going through P.M. report
and examination of FSL report I am of the opinion that
person had a fall in drunken state
and had a head injury as written in PM report and that
injury is sufficient to cause death.”
………
9. It is submitted
that from the time the body of deceased Brijesh Singh was
discovered on 6.8.07, through the process of inquest and
post mortem which was
conducted on the same day, no external injury had been
discovered on the body. During
post-mortem the viscera of the deceased was preserved and
sent to Forensic Science
Laboratory. In view of observations in inquest, post mortem
and initial findings, the I.O
did not think it appropriate to register a case of
murder. The statement of witnesses who
saw Brijesh Singh drinking heavily on the night of incident was corroborated by FSL
report which showed heavy presence of alcohol content in his
blood being 150.1 mg/100
ml. This also indicated that no offence had been committed
against Brijesh and led to the
action of the I.O. in continuing with the inquest.
10. That on
17.11.2008 the Ld. ACMM, Rohini, Sh. Amit Bansal, was pleased
to give directions u/s 156(3) Cr.P.C. and pursuant thereto FIR no. 26/08 u/s
302/392/120-B/34 IPC PS Crime Branch, was registered on
17.11.2008.” 6. After the registration
of the said FIR, as per the status report filed by the
Delhi Police, investigation of the said case was entrusted
to Inspector Dharambir Singh,
Anti Homicide, Crime Branch.
During the investigation the I.O. had interrogated various
persons who were named by the petitioner in her complaint
and also those who were
found with the deceased on the night of 5.8.2007. As per the status report, the mobile
phone of the deceased was recovered by the police on
9.9.2008 during the course of
inquest proceedings but no cue after interrogating the person from whom the mobile
phone was recovered could be found by the concerned
I.O. Polygraph test of Neelam
Sharma, Vaibhav Gautam and Promod Sharma was also got conducted by the Crime
Branch during investigation from Central Forensic Science
Laboratory, CBI, Lodhi Road
but all these persons were found to be truthful in their
answers. As per the status report
filed by Inspector Dharambir Singh on 5.8.2010 and the
latest status report filed on 7.5.11
by Inspector Bhaskar Sharma, the investigation of the case
was still in progress.
7. Besides addressing oral arguments, both the
parties have filed their written
synopsis in support of their arguments. In the written synopsis filed by the petitioner ,
her stand is that the petitioner and her mother had reached the spot
where the dead
body of Brijesh was lying and it was found by them that mobile phone, wrist watch,
currency notes and
papers contained in the purse
were found missing. They also found
that one notebook which did not belong to the deceased along
with one iron rod was
found lying near the dead body. As per the petitioner, she and her mother
told the S.I.
Jagdish Chander that they suspect foul play as mobile phone,
wrist watch and money
from the purse was missing but S.I. Jagdish Chander without
paying any heed to such
vital information handed over the notebook and purse to the
mother of the deceased. The
petitioner also pointed out that the clothes of the deceased
were not preserved by the
police but the same were thrown away in a great hurry. The petitioner also raised a
grievance that the statements of various material witnesses
were recorded by the police
during the course of preliminary enquiry but they were of no
consequence as the police
ought to have recorded their statements under Section 161
Cr.P.C. after registration of an
FIR. The petitioner also submitted that the callous attitude
of the police in unnecessarily
carrying out the preliminary enquiry for a period of over
one year was merely to help
the accused to eliminate evidence. The petitioner also submitted that the
learned ACMM
also failed to give any direction to the police to register
an immediate FIR for proper
investigation of the case, but instead kept on asking for
the status report from the police.
In support of her case, the petitioner relied upon the
following judgments:
1. Bhagwant Singh Vs. Commissioner of Police 1985 (2) SCC
537
2. Abhinandan Jha
& Anr Vs. Dinesh Mishra 1968 AIR (SC) 117
3. Indra Carat Pvt. Ltd. Vs. State of Karnataka & Ors.
1989 AIR (SC) 885
4. Ramesh Kumari vs. State of NCT of Delhi 2006 AIR (SC)
1322
8. On the other
hand, in the brief submissions filed by the respondent-State,
the stand taken is that a
call was received by the PCR,
Head Quarter at about 6.07
A.M. reporting that a person
was lying dead inside the B-9
park, Sector-3, Rohini. At
6.20 A.M. the call from the PCR through District Net reached
P.S. Rohini wherein it was
lodged in daily diary of P.S. Rohini vide D.D. No. 6A dated
6.8.2007 and the copy of the
same was sent to the S.I. Jagdish Chander for necessary
action. It has also been stated
that one Beat Constable Beg Raj helped the PCR officials in
removing the dead body and before picking up the dead body the constable had
taken the photograph of the place of
occurrence from his mobile phone camera. S.I. Jagdish
Chander reached the spot along
with one Constable Harinder but by that time the body was
already removed to Baba
Saheb Ambedkar Hospital by the said PCR Van. S.I. Jagdish Chander then went to the
hospital and had obtained MLC No. 4045/07 and thereafter the
dead body was referred to
the mortuary of Sanjay Gandhi Memorial Hospital for forensic
examination. It is further
stated that no article belonging to the deceased or any
foreign material was found by the
I.O. Jagdish Chander. It is further stated that since no
apparent injury was noticed by
the I.O. and due to non availability of any eye witness who
could give any first hand
account of the circumstances leading to the death of the
deceased, the I.O. initiated the
inquest proceedings under Section 174 Cr.P.C. for
ascertainment of the exact cause of
death. After getting the post mortem conducted, the body was
handed over by the I.O. to
Shri Raj Singh, brother of the deceased. It has also been denied that any missing
article
of the deceased was reported by the family members to the
I.O. It is further stated that
even in the telegram dated 6.8.2007 sent by the petitioner
to various authorities there was
no mention of any foreign article found near the body or any
article belonging to the
deceased found missing.
It is only in the subsequent complaints dated 9.8.2007 onwards
that the petitioner started making such allegations
regarding missing of purse and
presence of iron road and note book. The respondent also
took a stand that no external
injury on the body of the deceased was found and the facts
at the spot did not make out a
case of commission of a cognizable offence and hence inquest
proceedings under Section
174 Cr.P.C. were conducted by the I.O. so as to ascertain the cause of death.
It has also
been stated that the enquiry on the complaint of the
petitioner was marked to the Crime
Branch on 19.1.2008 and during this enquiry several
persons were examined by the
Crime Branch. On the legal
issue, the stand taken by the respondent is that no cognizable
offence seemed to have been committed after taking into consideration the allegations
and the facts as were available. In the status report it is also stated that
at no stage during
the inquest proceedings it could be found that the death was due to any act or injury
caused by someone.
The State in their submissions also came in defence of the learned
Magistrate for not directing registration of an FIR. The
State placed reliance on the
following judgments in support of their case:
1. Gurudath Prabhu & Ors. vs. Ms. Krishna Bhat &
Ors. 1999 Crl. L. J. 3909
2. Tapinder Singh vs. State Of Punjab 1970(2) SCC 113
3. Satish Kumar Goel vs. State & Ors. 84(2000) DLT
199(DB)
4. Rajinder Singh Katoch vs. Chandigarh Administration &
Anr. 2007(10) SCC 69
5. Binay Kumar Singh vs. State of Bihar 1997(1) SCC 283
9. I have heard
learned counsel for the petitioner
Mr. Anil Soni and Mr.
Pawan Sharma, learned Standing Counsel for State and
carefully gone through the stand
taken by both the parties in their oral arguments as well as
written submissions. Before
furthering the discussion on the controversy in hand, it
would be appropriate to reproduce
the relevant provisions of the Code of Criminal Procedure
pertinent to the facts of the
present case as under:
“
2. Definitions.- In this Code, unless the context otherwise
requires, - (c)"cognizable
offence" means an offence for which, and "cognizable case" means
a case
in which, a police officer may, in accordance with the First
Schedule or under any other
law for the time being in force, arrest without warrant;
….”
154.Information in cognizable cases.-
(1) Every information relating to the commission of a
cognizable offence, if given orally
to an officer in charge of a police station, shall be
reduced to writing by him or under his
direction, and be read over to the informant; and every such
information, whether given
in writing or reduced to writing as aforesaid, shall be signed
by the person giving it, and
the substance thereof shall be entered in a book to be kept
by such officer in such form as
the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section
(1) shall be given forthwith,
free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an
officer in charge of a police
station to record the information referred to in sub-section
(1) may send the substance of
such information, in writing and by post, to the
Superintendent of Police concerned who,
if satisfied that such information discloses the commission
of a cognizable offence, shall
either investigate the case himself or direct an
investigation to be made by any police
officer subordinate to him, in the manner provided by this
Code, and such officer shall
have all the powers of an officer in charge of the police
station in relation to that offence.
156.Police officers power to investigate cognizable case.-
(1) Any officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having
jurisdiction over the local area
within the limits of such station would have power to inquire into or try under the
provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall
at any stage be called in
question on the ground that the case was one which such
officer was not empowered
under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as
above-mentioned.
174.Police to enquire and report on suicide, etc.-
(1) When the officer in charge of a police station or some
other police officer specially
empowered by the State Government in that behalf receives
information that a person has
committed suicide, or has been killed by another or by an
animal or by machinery or by
an accident, or has died under circumstances raising a
reasonable suspicion that some
other person has committed an offence, he shall immediately
give intimation thereof to
the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise
directed by any rule prescribed by the State Government, or
by any general or special
order of the District or Sub-divisional Magistrate, shall
proceed to the place where the
body of such deceased person is, and there, in the presence
of two or more respectable
inhabitants of the neighbourhood, shall make an
investigation, and draw up a report of the
apparent cause of death, describing such wounds, fractures,
bruises, and other marks of injury as may be found on the body, and stating in
what manner, or by what weapon or
instrument (if any); such marks appear to have been
inflicted.
(2) The report shall be signed by such police officer and
other persons, or by so many of
them as concur therein, and shall be forthwith forwarded to
the District Magistrate or the
Sub-divisional Magistrate.
(3) When there is any doubt regarding the cause of death, or
when for any other reason
the police officer considers it expedient so to do, he
shall, subject to such rules as the
State Government may prescribe in this behalf, forward the
body, with a view to its being
examined, to the nearest Civil Surgeon, or other qualified
medical man appointed in this
behalf by the State Government, if the state of the weather
and the distance admit of its
being so forwarded without risk of such putrefaction on the
road as would render such
examination useless.
(4) The following Magistrates are empowered to hold
inquests, namely, any District
Magistrate or Sub-divisional Magistrate and any other
Executive Magistrate specially
empowered in this behalf by the State Government or the
District Magistrate.
10. The ‘First
Information Report’ sets into motion the process of criminal
machinery. The Hon’ble Apex Court and various High Courts of the country
through
various authoritative
legal pronouncements have time and again taken
an unequivocal
view that where a
complaint is made to the police officer which discloses commission
of a cognizable offence, it is the statutory duty of the police to register an FIR and then
proceed to hold
investigation in the complained offence, but unfortunately the voice of
various High Courts and even the Highest Court of the land
has fallen on deaf ears of
not only the lower officials
but also of the rank of Joint
Commissioner of Police,
Additional Commissioner of Police and the top Cop of the Delhi
Police as well. To give
a reminder of the same to the Delhi police once again, it
has become imperative to
reiterate the dicta of law laid down by the Hon’ble Supreme
Court through various
pronouncements.
Mandate of Section 154(1)
11. In the celebrated
pronouncement of the Apex Court in the case of State of
Haryana Vs. Bhajan Lal AIR 1992 SC 604, the court has held
that:
“30. The legal mandate enshrined in Section 154(1) is that
every information relating to
the commission of a "cognizable offence" (as
defined Under Section 2(c) of the Code) if
given orally (in which case it is to be reduced into
writing) or in writing to "an officer
incharge of a police station" (within the meaning of
Section 2(o) of the Code) and signed
by the informant should be entered in a book to be kept by
such officer in such form as
the State Government may prescribe which form is commonly
called as "First
Information Report" and which act of entering the
information in the said form is known
as registration of a crime or a case.
31. At the stage of registration of a crime or a case on the
basis of the information
disclosing a cognizable offence in compliance with the
mandate of Section 154(1) of the
Code, the concerned police officer cannot embark upon an
enquiry as to whether the
information, laid by the informant is reliable and genuine or otherwise and refuse to register a
case on the ground that the information is not reliable or credible. On the
other
hand, the officer incharge of a police station is
statutorily obliged to register a case and
then to proceed with the investigation if he has reason to
suspect the commission of an
offence which he is empowered Under Section 156 of the Code
to investigate, subject to
the proviso to Section 157. (As we have proposed to make a
detailed discussion about the
power of a police officer in the field of investigation of a
cognizable offence within the
ambit of Sections 156 and 157 of the Code in the ensuing
part of this judgment, we do
not propose to deal with those sections in-extensor in the
present context). In case, an
officer incharge of a police station refuses to exercise the
jurisdiction vested on him and
to register a case on the information of a cognizable
offence, reported and thereby
violates the statutory duty cast upon him, the person
aggrieved by such refusal can send
the substance of the information in writing and by post to
the Superintendent of Police
concerned who if satisfied that the information forwarded to
him discloses a cognizable
offence, should either investigate the case himself or direct
an investigation to be made
by any police officer subordinate to him in the manner
provided by Sub-section 3 of
Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the
legislature in its collective wisdom
has carefully and cautiously used the expression
"information" without qualifying the
same as in Section 41(1)(a) or (g) of the Code wherein the
expressions, "reasonable
complaint" and "credible information" are
used. Evidently, the non-qualification of the
word "information" in Section 154(1) unlike in
Section 41(1)(a) and (g) of the Code may
be for the reason that the police officer should not refuse
to record an information relating
to the commission of a cognizable offence and to register a
case thereon on the ground
that he is not satisfied with the reasonableness or
credibility of the information. In other
words, 'reasonableness' or 'credibility' of the said
information is not a condition precedent
for registration of a case. A comparison of the present
Section 154 with those of the
earlier Codes will indicate that the legislature had
purposely thought it fit to employ only
the word "information" without qualifying the
said word. Section 139 of the CrPC of
1861 (Act XXV of 1861) passed by the Legislative Council of
India read that 'every
complaint or information' preferred to an officer incharge
of a police station should be
reduced into writing which provision was subsequently
modified by Section 112 of the
Code of 1872 (Act X of 1872) which thereafter read that
'every complaint' preferred to an
officer incharge of a police station shall be reduced in
writing. The word 'complaint'
which occurred in previous two Codes of 1861 and 1872 was
deleted and in that place the
word 'information' was used in the Codes of 1882 and 1898
which word is now used in
Sections 154, 155, 157 and 190(c) of the present Code of
1973(Act II of 1974). An
overall reading of all the Codes makes it clear that the
condition which is sine-qua-non
for recording a First Information Report is that there must
be an information and that
information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a organizable
offence is laid before an officer incharge of a police
action satisfying the requirements of
Section 154(1) of the Code, the void police officer has no
other option except to enter the
substance thereof in the prescribed form, that is to say, to
register a case on the basis of
such information.” The above said legal position has been
reiterated by the Apex Court in the case of
Parkash Singh Badal Vs. State of Punjab (2007)1 SCC 1. The Hon’ble Apex Court in
Lallan Chaudhary & Ors. Vs. State of Bihar & Anr.
(2006)12 SCC 229 held as under:
“Section 154 of the Code thus casts a statutory duty upon
police officer to register the
case, as disclosed in the complaint, and then to proceed
with the investigation. The
mandate of Section 154 is manifestly clear that if any
information disclosing a cognizable
offence is laid before an officer in charge of a police
station, such police officer has no
other option except to register the case on the basis of
such information.
5. In the case of Ramesh Kumari v. State (NCT of Delhi) and
Ors. : 2006CriLJ1622 this
Court has held that the provision of Section 154 is
mandatory. Hence, the police officer
concerned is duty-bound to register the case on receiving
information disclosing
cognizable offence. Genuineness or credibility of the
information is not a condition
precedent for registration of a case. That can only be
considered after registration of the
case. The mandate of Section 154 of the Code is that at the
stage of registration of a
crime or a case on the basis of the information disclosing a
cognizable offence, the police
officer concerned cannot embark upon an enquiry as to
whether the information, laid by
the informant is reliable and genuine or otherwise and refuse to register a case on the
ground that the information is not relevant or credible. In
other words, reliability,
genuineness and credibility of the information are not the conditions precedent for
registering a case under Section 154 of the Code.”
The Full Bench decision of the Bombay High Court presided
over by Hon’ble Justice
Swatanter Kumar(the then Chief Justice of the Bombay High
Court) in Sandeep
Rammilan Shukla vs. The State Of Maharashtra through the
Secretary, Home Department
and Ors. 2009(1) MhLj 97 is in fact a treatise on the
subject of FIR and it would be quite
useful to refer the following paras of the same as under:
“27. In the light of above enunciated principles, now let us
revert back to the language of
Section 154 and the other provision which would have a
bearing on its true construction.
The provisions of Section 154 use a clear language and
hardly leave any scope for doubt.
The moment information relating to the commission of
cognizable offence is given to the
officer in charge of a Police Station, he “shall reduce the
same in writing or cause it to be
written under his direction and shall be signed by the person giving information and
entered in such book which may be prescribed by the State
Government in that behalf.”
Thus, this provision casts an absolute obligation upon an
officer in charge of a Police
Station that wherever information about cognizable offence
is brought to his notice, he
shall follow the procedure prescribed under Section 154(1).
In the event of default,
Section 154(3) provides a remedy to the aggrieved party. In
other words, the Legislature
did contemplate the possibility of a refusal to record
information of a cognizable offence
by officer in charge of a Police Station, and therefore,
found a need of spelling out a
remedy under Section 154(3).
28. A cognizable offence by its very definition would be a
serious offence and in fact, an
assault on the freedom and liberty of another individual as
protected under the basic rule
of law. A cognizable offence would be one where the
Investigating Officer can arrest
without warrant. Section 41 specifies when, without order
from the Magistrate and
without warrant, a person could be arrested who is concerned
in any cognizable offence.
Section 157 is another important provision, which throws
some light on the matters in issue. Section 157 of course is preceded by
Sections 154 to 156 but its language does not
indicate that the procedure of investigation indicated in it
can be followed only after
registration of a case.
29. In the case of Emperor v. Khwaja Nazir , it is held that
receipt and recording of FIR is
not a condition precedent to criminal investigation and
police have statutory right under
Section 154 to investigate. Section 157 requires that if
from the information received
which may even refer to Section 154 or otherwise, an officer
in charge of a Police Station
has reason to suspect commission of an offence which he is
empowered under Section
156 to investigate after sending report to Magistrate would
proceed to investigate
personally or appoint his subordinate to investigate. Here
the expression `reason to
suspect the commission of an offence’ indicates arriving at
some kind of satisfaction on
the part of the Investigating Officer in regard to
commission of an offence, which he is
empowered to investigate in terms of Section 156 i.e. a
cognizable offence. Proviso (b) to
Section 157(1) further grants some kind of leverage to the
Investigating Officer that he
may not enter upon the investigation where there is `no
sufficient ground for
investigation’. Besides submitting the report, he is under
obligation to notify the
informant as well. The report is to be submitted in terms of
Section 158 where the
Magistrate can even direct investigation in terms of powers
conferred upon the
Magistrate under Section 159. This provision gives some
element of discretion to the
Investigating Officer, which he could exercise as per the
prescribed procedure, in
accordance with the law and to have fair play into the investigation. Abuse of this
discretion can lead to drastic consequences on the entire
criminal law.
30. The opening words of Section 157 are also of some
significance. The expression `If”
used in “If' from information received or otherwise, an
officer in charge of a police
station has reason to suspect the commission of an offence
which he is empowered under
Section 156 to investigate”, is considered it suggests that
the power to investigate under
Section 157 is dependent upon some satisfaction as indicated the word `if’. The
expression `if’ has to be given some meaning and reference
in the language of Section.
This expression will have to be examined in light of the
language of Section 154(1) of the
Code.
31. In the scheme of the Code of Criminal Procedure, the
provisions of Section 154 is a
significant provision and has considerable impact on
administration of criminal justice as
well as have substantial effect on the society. The
question, which requires serious
consideration, is whether any kind of discretion is
available to the officer in charge of a
Police Station in terms of Section 154 or he is left with no
choice whatever as per the
circumstances of the case. The advantages and disadvantages
per se may not be a relevant
consideration in interpretation of provisions of criminal
law but this exemption in the
light of object of the statute and provision and its purpose
can be of definite help in such
situation. Experience has shown and even it is not disputed
at the bar during the course of
arguments that the abuse of this power either way is not
only possible but has actually
been seen in practice. Fear of manipulation per se cannot be
the basis for enactment of a
law and for that matter its interpretation. The Court
essentially must believe that all the
things would be done fairly and as required under the law
unless contrary is shown.
Sometimes, cases relating to cognizable offence are
registered even if they are patently
false, absurd and the credibility and reliability of which
is prima facie questionable. They
are filed just to harass the party complained against at the
behest of some influential persons. On the other hand, a genuine complainant
who is the real victim of commission
of a cognizable offence committed by another is neither
attended to nor heard at various
police stations and the officer in charge of a Police
Station refuses to record any entry of
such information, thus leading to consequences which result
in not bringing the
influential people to the command of law.
32. The word `shall’ appearing in Section 154 has to be
given its plain and simple
meaning as its plain interpretation is neither hit by any rule of great hardship,
inconvenience or ambiguity. The expression `shall’ therefore is a mandatory provision
and in no uncertain terms places an absolute duty upon the
officer in charge of a Police
Station to record information of a cognizable offence in the
appropriate book/books. No
doubt, the words ‘shall’ and `may’ are interchangeable but
in the present case, mandatory
interpretation of the word `shall’ can hardly be avoided.
Corollary to the question that
follows is whether this absolute duty arising from the word `shall’ specifically or by
definite implication puts an absolute prohibition on the
police officer in charge of a
Police Station to do any other act ancillary thereto or
otherwise under the Scheme of the
Act.
33. The provisions of Section 154 are capable of being
interpreted and given a meaning
on its plain interpretation without harming either doctrine
of fair investigation, avoiding
adverse effect on the society and ensuring expeditious
commencement and disposal of the
trials without exposing the complainant to the possible
disadvantage for non registration
of his complaint. Once the matter falls within the realm of
investigation, it is controlled
by the Investigating Agency, normally, without interference
of the Court. The only
condition precedent to put the machinery of investigation in
motion is information of a
cognizable offence and/or registration of offence alleged to
have been committed which
is cognizible. The investigation includes all proceedings
under the Code for collection of
evidence conducted by a police officer. There is no specific
provision or legislative
command where preinvestigative inquiry is either
specifically permitted or prohibited.
There appears to be nothing in the language of Section 154
of the Code, which debars
recourse to preregistration inquiry howsoever formal it
might be, that necessarily may not
mean that it specifically permit such an inquiry. This
aspect of the matter, we shall revert
back for a detail discussion after noticing the judgments on
the subject.”
Thus it would be luculent from the above that there can be
no departure from the fact that
there is an inviolable duty cast upon the police officer incharge
of a police station to
register an FIR .
First Information Report: Object & Importance
12. In the case of
Ravi Kumar Vs. State of Punjab (2005)9
SCC 315, the
Hon’ble Supreme Court has defined the First Information
Report in the following words:-
“15. The First Information Report is a report giving
information of the commission of a
cognizable crime which may be made by the complainant or by
any other person
knowing about the commission of such an offence. It is
intended to set the criminal law
in motion. Any information relating to the commission of a
cognizable offence is
required to be reduced to writing by the officer-in-charge
of the Police Station which has
to be signed by the person giving it and the substance
thereof is required to be entered in
a book to be kept by such officer in such form as the State
Government may prescribe in
that behalf. The registration of the FIR empowers the
officer-in-charge of the Police
Station to commence investigation with respect to the crime
reported to him. A copy of the FIR is required to be sent forthwith to the
Magistrate empowered to take cognizance
of such offence. After recording the FIR, the
officer-in-charge of the Police Station is
obliged to proceed in person or depute one of his subordinate
officers not below such
rank as the State Government may, by general or special
order, prescribe in that behalf to
proceed to the spot to investigate the facts and
circumstances of the case and if necessary
to take measures for the discovery and arrest of the
offender. It has been held time and
again that the FIR is not a substantive piece of evidence
and can only be used to
corroborate the statement of the maker under Section 161 of
the Indian Evidence Act,
1872 (in short the 'Evidence Act') or to contradict him
under Section 145 of that Act. It
can neither be used as evidence against the maker at the
trial if he himself becomes an
accused nor to corroborate or contradict other witnesses. It
is not the requirement of law
that the minutest details be recorded in the FIR lodged
immediately after the occurrence.
The fact of the state of mental agony of the person making
the FIR who generally is the
victim himself, if not dead, or the relations or associates
of the deceased victim
apparently under the shock of the occurrence reported has
always to be kept in mind. The
object of insisting upon lodging of the FIR is to obtain the
earliest information regarding
the circumstance in which the crime was committed.”
The Apex court further in the case of Thulia Kali vs. The
State of Tamil Nadu AIR 1973
SC 501 emphasized the importance of FIR in the following
manner:
“First information report in a criminal case is an extremely vital and valuable piece of
evidence for the purpose of corroborating the oral evidence adduced at the trial. The
importance of the above report can hardly be overestimated
from the standpoint of the
accused: The object of insisting upon prompt lodging of the
report to the police in respect
of commission of an offence is to obtain early information
regarding the circumstances in
which the crime was committed, the names of the actual
culprits and the part played by
them as well as names of eye witnesses present at the scene
of occurrence. Delay in
lodging the first in- formation report quite often results in embellishment which is a
creature of afterthought. On account of delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of the
introduction of coloured version,
exaggerated account or concocted story As a result of
deliberation and consultation.”
The Apex Court in the case of Hasib vs. State of Bihar AIR
1972 SC 283 put forth the
essence of FIR as under:
The legal position as to the object, value and use of first
information report is well settled.
The principal object of the first information report from
the point of view of the
informant is to set the criminal law in motion and from the point of view of the
investigating authorities is to obtain information about the
alleged criminal activity so as
to be able to take suitable steps for tracing and bringing
to book the guilty party.
It would also be useful here to refer to some of the
important observations made by the
Apex Court in the case of Ramesh Kumari Vs. State of NCT of
Delhi,(2006) 2 SCC 677
and in the case of CBI and Ors. Vs. Tapan Kumar Singh (2003)
6 SCC 175 which are
respectively reproduced as under:-
“3. Mr. Vikas Singh, learned Additional Solicitor General,
at the outset, invites our
attention to the counter-affidavit filed by the respondent
and submits that pursuant to the aforesaid observation of the High Court the
complaint/representation has been
subsequently examined by the respondent and found no genuine
case was established.
We are not convinced by this submission because the sole
grievance of the appellant is
that no case has been registered in terms of the mandatory
provisions of Section 154(1) of
the Criminal Procedure Code. Genuineness or otherwise of the
information can only be
considered after registration of the case. Genuineness or
credibility of the information is
not a condition precedent for registration of a case. Me are
also clearly of the view that
the High Court erred in law in dismissing the petition
solely on the ground that the
contempt petition was pending and the appellant had an
alternative remedy. The ground
of alternative remedy nor pending of the contempt petition
would be no substitute in law
not to register a case when a citizen makes a complaint of a
cognizable offence against
the Police Officer.
4. That the Police Officer mandatorily registers a case on a complaint of a cognizable
offence by the citizen under Section 154 of the Code are no
more res integra. The point of
law has been set at rest by this Court in the case of State
of Haryana and Ors. v. Bhajan
Lal and Ors. :
1992CriLJ527 . This Court after examining the whole gamut and
intricacies of the mandatory nature of Section 154 of the
Code has arrived at the finding
in paras 31 & 32 of the judgment as under:
……………………….
5. The views expressed by this Court in paragraphs 31, 32
and 33 as quoted above leave
no manners of doubt that the provision of Section 154 of the
Code is mandatory and the
concerned officer is duty bound to register the case on the
basis of such an information
disclosing cognizable offence.”
…………………..
“22. It is well settled that a First Information Report is
not an encyclopedia, which must
disclose all facts and details relating to the offence
reported. An informant may lodge a
report about the commission of an offence though he may not
know the name of the
victim or his assailant. He may not even know how the
occurrence took place. A first
informant need not necessarily be an eye witness so as to be
able to disclose in great
details all aspects of the offence committed. What is of significance is that the
information given must disclose the commission of a
cognizable offence and the
information so lodged must provide a basis for the police officer to suspect the
commission of a cognizable offence. At this stage it is
enough if the police officer on the
basis of the information given suspects the commission of a
cognizable offence, and not
that he must be convinced or satisfied that a cognizable
offence has been committed. If he
has reasons to suspect, on the basis of information
received, that a cognizable offence
may have been committed, he is bound to record the information and conduct an
investigation. At this stage it is also not necessary for
him to satisfy himself abut the
truthfulness of the information. It is only after a complete
investigation that he may be
able to report on the truthfulness or otherwise of the
information. Similarly, even if the
information does not furnish all the details, he must find
out those details in the course of
investigation and collect all the necessary evidence. The
information given disclosing the
commission of a cognizable offence only sets in motion the
investigative machinery, with
a view to collect all necessary evidence, and thereafter to
take action in accordance with
law. The true test is whether the information furnished
provides a reason to suspect the
commission of an offence, which the concerned police officer
is empowered under Section 156 of the Code to investigate. If it does, he has
no option but to record the
information and proceed to investigate the case either
himself or depute any other
competent officer to conduct the investigation. The question
as to whether the report is
true, whether it discloses full details regarding the manner
of occurrence, whether the
accused is named, and whether there is sufficient evidence
to support the allegations are
all matters which are alien to the consideration of the
question whether the report
discloses the commission of a cognizable offence. Even if
the information does not give
full details regarding these matters, the investigating
officer is not absolved of his duty to
investigate the case and discover the true facts, if he
can.”
It would also be useful here to refer to the judgment of the
Division Bench of this court in
the case of Shanti Devi & Anr. State 97(2002)DLT410 (DB)
where the court very
eloquently put the legal position as under:
“5. It is a beaten track that if an information is laid before
an officer or a police station, he
is saddled with duty to enter it in the prescribed form and
register a case and then to
conduct an investigation into the allegations made. Though
he can make some inquiry as
to the commission of a cognizable offence but he can't
examine the credibility,
correctness or reliability of the accusations made in the complaint. so long as the
complaint is not uncertain and it is not entertaining any
doubt on the commission of any
cognizable offence he has no option but to register the FIR
on the complaint where the
facts narrated laid a foundation for making out a cognizable
offence.
6. In this conspectus it remained to be seen how
petitioners' complaint was handled and
treated. There is no dispute that it had charged ASI Dharam
Pal of being instrumental for
the fall of two motor cycle riders resulting in death of one
of them and grievous hurt to
the other. It could not, Therefore, be said that the
information put up before the concerned
SHO made the commission of a cognizable offence doubtful or
that it was vague or
uncertain as to warrant no action in the matter.
Respondents' stand that petitioners'
complaint was examined by Public Grievance Cell and was
found devoid of any
substance is wholly misconceived and irrelevant.
7. It is not understandable how the inquiry by that Cell
would justify the non-registration
of a case on the petitioners' complaint which otherwise
indicated commission of a
cognizable offence irrespective of the correctness of the
accusations. Such an inquiry by
any forum of police, it must be under-scored, had no such
sanctity in the eyes of law. It
indeed fell outside the scope and scheme of Chapters XII and
XIV of Cr.P.C.
8. It requires to be made clear at this stage that a police officer was not competent to
conduct any investigation of sorts on the complaint or to
refer it to any forum for testing
its veracity or correctness or substance before entering it
in prescribed form and
registering a case. Or else, it would tantamount to putting
the cart before the horse,
because the registration of FIR had to precede the
investigation and not the vice versa.”
(emphasis
supplied)
I may also refer to some of the other important extracts
from the judgment of the Bombay
High Court in Sandeep Rammilan Shukla(Supra) which are
reproduced as under:
“60. It is evident from the analysis of the above judgments
of the Supreme Court as well
as this Court that there are some what divergent points of
view taken by the different
Benches of the Court. Of course, they cannot be termed as
diametrically divergent views. They can be easily reconciled if looked from
appropriate perspective in the backdrop of
respective facts. The judgments which have taken the view
that there is permissibility
within the scope of Section 154 for an officer in charge of
a police station to conduct
some kind of an inquiry preregistration of the FIR have
stated so to be an exception and
not the rule. In other words, it has to be one of those rare
cases where recourse to such a
procedure may be adopted. As a rule and as requirement of
law, the police officer in
charge of a police station is stated to have hardly any
discretion in registering the case
once the information given to such an officer discloses a
cognizable offence. The essence
appears to be that the information should disclose commission of a cognizable offence
which alone would vest power and jurisdiction in the officer
in charge to put into motion
the investigation machinery. It needs to be noticed with
some emphasis that it is not
necessary that FIR should be registered for the purposes of
setting the mechanism of
investigation into motion. It is sufficient that a cognizable offence is disclosed by the
information given. This is the true implication of the
provisions of Section 154 read with
Section 157 of the Code. The Supreme Court and Privy Council
have consistently taken
the view that for investigation to commence, registration of
a FIR is not a sine qua non
(Emperor v. Khwaja Nazir , and Apren Joseph @ Current
Kunjukunju and Ors. v. State
of Kerala :
1973CriLJ185 ).
61. One of the arguments raised before us on behalf of the
Petitioners was that the
judgments relied upon by the State are judgments on their
own facts and cannot be
constituted as precedent of law settling or answering
proposition involved in the present
case. Somewhat similar is the contention on behalf of the
State. It can hardly be disputed
that the dictum of the Supreme Court and even this Court are
judgments on facts and
circumstances of those cases. In each case, whether for and
against the proposition of
law, there were peculiar circumstances. Despite ingredient
of the Section being satisfied,
the police had intentionally not registered or delayed the registration
of information
disclosing the cognizable offence. While in other cases,
there was an overzeal on the part
of the police and while even conducting the preregistration
inquiry they acted unfairly.
Still, a third class of cases is where despite an offence
having been made out the
investigating agency or the police officer in charge,
neither entered upon a preliminary
inquiry preregistration nor even registered the case thus
compelling the aggrieved party to
approach the High Court under Article 226 of the
Constitution of India. There are also
cases where the investigation was so unfair and opposed to
the rule of law that parties had
come for quashing of an FIR or for transfer of investigation
to CBI. Whichever view is
accepted as correct exposition of law, the basic principle
therein is necessity of bona fide
exercise of power and unbiased and fair investigation of an
alleged offence by the police.
Rule of criminal jurisprudence make no exception to the
principle that a fair investigation
is the soul of proper administration of criminal justice
system. Criminal justice system
has two components. The role of the State and role of the
judiciary. Exercise of power or
authority by any of these components has to ensure due protection with dignity to the
rights of a complainant as well as suspect and the society
at large, while ensuring that
there is no adverse impact on the social fabric of the
society.
62. It is required to be noticed with some emphasis that the
judgment in the case of
Bhagwant Kishore Joshi (supra) is a judgment delivered by a
Bench of three Judges,
while all the other judgments relied on by either parties
are judgments by two Judge
Bench. In that case, the Supreme Court had clearly taken the
view while explaining the word “investigation” that merely making some
preliminary inquiry upon receipt of the
information from an anonymous source or a source of doubtful
reliability for checking up
the correctness of the information does not amount to collection of evidence and so
cannot be regarded as investigation. The Court further
clarified that in absence of any
prohibition in the Code, express or implied, it was open to
the police officer to make such
preliminary inquiry.
63. The judgment of Ramesh Kumari vs Stateof NCT of Delhi. :
2006CriLJ1622 , was
duly noticed by the Supreme Court in the case of Rajinder
Singh Katoch (supra). The
judgment in Rajinder Singh Katoch (supra) had been
pronounced after the judgment of
the Supreme Court in Badal's case (supra). In other words,
the view taken in Rajinder
Singh Katoch's case (supra) is in the latest judgment where
the subject in controversy has
been discussed in some detail.
64. In other words, the judgments of the Courts have
permitted and accepted the practice
of preregistration inquiry, of course with a limited compass
and with utmost caution. It is
obvious that such limited inquiry is not specifically and/or
by necessary implication
prohibited under the provisions of Section 154 of the Code.
It is expected of the officer in
charge of the police station to examine whether the
information received is disclosing a
cognizable offence or not. In absence of such disclosure, he
attains no jurisdiction to look
into the matter or authority to investigate without leave of
the Court if the offence is non
cognizable. Even during this limited process of examining
and conducting some kind of
an inquiry to establish those ingredients, the officer
concerned is to do nothing which is
unjust or unfair. He essentially must examine the
complaint/information as it comes to
him.
………………
68. Even in the case of Tapan Kumar (supra), the Supreme
Court culled out a very fine
distinction stating that on the information given to the
police officer, even if he suspects
the commission of a cognizable offence or not, he must be
convinced or satisfied that
cognizable offence has been disclosed in the information. If
he has reasons to suspect on
the basis of information received that a cognizable offence
may have been committed, he
is bound to record information and conduct an investigation.
The emphasis is that the
police officer has reasons to suspect commission of a
cognizable offence. Of course, it is
not the requirement of law that a police officer has to
verify the truthfulness of the
allegations preregistration, if taken on its face value, the
information discloses a
cognizable offence. In the case of Lallan Chaudhary (supra)
also the Supreme Court held
that reliability, genuineness and credibility of information
are not the conditions
precedent for registering a case under Section 154 of the
Code.
69. There is hardly any judgment, which in express terms has
taken the view that any
kind of inquiry by the officer in charge of a Police Station
is forbidden and prohibited
under the law. It is one thing to say that it is mandatory
duty or obligation of the Police
Officer to register the FIR when the information provided to
him is in relation to the
commission of a cognizable offence but still another thing
to say that after noting the
information brought to his notice and before recording the
substance thereof in the
notified book (i.e. FIR Register) the law prohibits in
express terms to make any inquiry in
relation to the commission of that offence. The paramount
condition attached to exercise
of duty under Section 154 is that it should be performed
bona fidely, fairly and without
any undue delay. 70. The provisions of Section 154 of the
Code impose an absolute obligation and duty
upon the officer in charge of a police station to record
information in the prescribed book
of a cognizable offence (FIR register), but it is difficult
for the Court to construe in
absence of any express language that this provision forbids
any kind even preliminary
inquiry prior to registration of the FIR. We are unable to
notice anything in the language
of the section which by necessary implication debars in law
such an inquiry. The
Supreme Court in the case of Bhagwant Kishore Joshi (supra),
a judgment which was
delivered by a three Judge Bench, took the view that such an
inquiry, of course for a very
limited purpose and bona fide object, was not debarred under
the provisions of Section
154. Again, a three Judge Bench of the Supreme Court in the
case of Jacob Mathew
(supra), in unambiguous terms declared that preregistration
inquiry would be permissible,
but again for a class of persons i.e. Medical Practitioners.
The investigating agency was
cautioned in that case not to cause harassment to the
Doctors in furtherance to a private
complaint unless some prima facie evidence of rash and
negligent act on the part of the
accused Doctor was brought on record before the
investigating officer. The principle
enunciated in both these judgments, particularly in the case
of Bhagwant Kishore Joshi
(supra), is not subject matter of a detailed discussion by
any of the subsequent Benches of
the Supreme Court, except in the case of Rajinder Singh
Katoch (supra), a judgment
pronounced by a two Judge Bench of the Supreme Court after
declaration of law in
Prakash Singh Badal's case (supra) which also specifically
noticed Ramesh Kumari's case
(supra) and declared the principle that some kind of
preliminary inquiry would be
permissible prior to registration of the case. It needs to
be noticed at the cost of repetition
that judgments of the Supreme Court delivered by two Judges
Bench have taken the view
that there is no option with the police officer in charge of
a police station but to register
the FIR. The view is obviously relateable to the facts of
those cases and in all those cases
the conduct of the investigating agency had been deprecated
and the Court took the view
that reliability, genuineness and credibility of information
are not the condition precedent
for registration of a case under Section 154 and provisions
of Section 154 are mandatory
and officer in charge of police station is duty bound to
register the case on receiving the
information disclosing a cognizable offence. (See Lallan
Chaudhary (supra) and Ramesh
Kumari (supra)). However, in the case of Mohindro (supra),
the Court observed on facts
of that case that for no reason whatsoever the police had
not registered the case and
proceeded to pass the appropriate direction.
71. Thus it is evident that information must relate to
`commission of a cognizable
offence'. If the information given exfacie is so absurd or
lacks essential ingredients of the
allegedly committed cognizable offence, the investigating
officer after making a due
entry in the prescribed books like daily diary, general
diary or station diary or daily
roznamachar, could step into the limited preliminary inquiry
and then within a very short
time and most expeditiously register the FIR unless the
information does not disclose
commission of a cognizable offence. Such exercise has to be
bona fide, fair and must
stand to the test of judicious exercise of power. Such cases
would be by and large very
few and rare cases where the police officer has to conduct preliminary inquiry
preregistration of a FIR for a very limited period. Taking
an example of such rare and
exceptional cases, an informant by a telephone makes a call
that there has been a blast at
a railway station causing injury and death of number of
persons and names the persons
who has alleged to have effected the bomb blast. A police
officer is obliged to make an entry in the daily diary register and at least
would verify the same by ringing up the
nearest police station or the railway authority in charge of
the railway station where such
an incident is informed to have been occurred. If no
incident has occurred at the railway
station, the question of registering the FIR would hardly
arise and he could proceed in
accordance with law on the basis of the entry made in the daily diary register/station
diary/roznamachar. In the case of Tapan Kumar Singh (supra),
the Supreme Court has
even held that an entry in the daily diary/station diary or
roznamachar itself can be a FIR.
72. Another aspect which the Court may have to examine is
avoiding absurd results while
ensuring compliance to the provisions of Section 154 of the
Code. In a given case, where
a person of public importance or a public figure is stated
to be abroad by print and press
media, thus information is given to everybody and the informant
goes to the police
station and lodges a report that he was assaulted or legally
confined by that person
(public figure) in Mumbai. Such information may not demand
instant registration of the
FIR and after making due entry in the daily dairy register,
the police officer may be
within his rights at least to verify that fact reflected in
the media before actually
registering a first information report in the prescribed
book which ultimately then must
lead to entire investigation process, collection of evidence
and presenting a report in
terms of Section 173(2) of the Code. Still further, there
might be cases where information
given by the informant may not indicate or suspect
commission of a cognizable offence
but some verification or some further information may bring
those cases within the ambit
of commission of a cognizable offence thus instantaneously
registerable in accordance
with the provisions of Section 154 of the Code. We have already said that such cases
would be exceptional and rare. As a normal course the police
officer in charge of a police
station is bound to register the information in relation to
commission of a cognizable
offence and this is an absolute duty on the part of such
officer.
73. One of the arguments is that whosoever furnishes false
or incorrect information to the
police or a public servant commits an offence punishable
under Sections 177 and 180 of
the Indian Penal Code. Thus no matter how absurd incorrect
or false information might
have been furnished to the police officer, the FIR should be
registered forthwith. We are
unable to find much merit in this submission for the reason
that this will only generate
more and more litigation which is not the object of any law
much less a procedural law.
The scheme of the Code does give element of very limited
discretion to the
investigating/police officer and a concept of preliminary
inquiry within the very limited
scope aforeindicated is not forbidden in law. Thus, it will
achieve a greater object if in
those exceptional and rare cases the investigating officer
makes an entry in the daily diary
register/station diary or roznamachar and upon a very
limited criminal inquiry registers
the FIR within two days or even otherwise proceeds in
accordance with the provisions of
the Code.
74. The scheme of the Criminal Procedure Code examined in
conjunction with the
provisions of the Indian Penal Code also provides an inbuilt
safeguard against non
registration or undue delay in registering the FIR. Firstly,
in terms of Section 154(3) of
the Code, an informant or complainant has a right to
approach the higher authorities in
the case of non registration praying not only for
registration but even investigation by a
higher authority. In addition to this, a public servant who
disobeys law or direction of law
is liable to be proceeded against and punished in terms of
Sections 166 and 217 of the
Indian Penal Code. This approach will draw equibalance
between the triangular protection projected under the scheme of the Code i.e.
protection to victim/complainant,
accused and the society at large. On the one hand, non registration of a FIR
instantaneously results in harassment to the victim,
avoidance of obedience of law as well
and adversely affects the society as it ultimately results
in deterioration in law and order.
On the other hand, registration of a cognizable offence can
lead to instant arrest of the
suspect and various other consequences which are
contemplated in law. Some times they
can even become irreversible and jeopardize the interest and
protection of the suspect and
also result in social resentment which adversely affects the
administration of criminal
justice.”
Here it would also be useful to refer to the recent ruling
of the Apex Court in the case of
Ashok Kumar Todi vs. Kishwar Jahan & Ors. 2011(3) SCALE
94 where the Court while
dealing with the unnatural death of a person re emphasized
the steps involved in
investigation and accentuated the importance of registration
of FIR in the following
paras:
“23. Section 2(h) of the Code defines investigation which
reads as under:
(h) "investigation" includes all the proceedings
under this Code for the collection of
evidence conducted by a police officer or by any person
(other than a Magistrate) who is
authorized by a Magistrate in this behalf
Under the scheme of the Code, investigation commences with
lodgment of information
relating to the commission of an offence. If it is a cognizable offence, the officer-incharge of
the police station, to whom the information is supplied orally has a statutory
duty to reduce it to writing and get the signature of the informant. He shall enter the
substance of the information, whether given in writing or
reduced to writing as aforesaid,
in a book prescribed by the State in that behalf. The
officer-in-charge has no escape from
doing so if the offence mentioned therein is a cognizable
offence and whether or not such
offence was committed within the limits of that police
station. But when the offence is
non-cognizable, the officer-in-charge of the police station
has no obligation to record it if
the offence was not committed within the limits of his police station. Investigation
thereafter would commence and the investigating officer has
to go step by step. The Code
contemplates the following steps to be carried out during
such investigation:
(1) Proceeding to the spot; (2) ascertainment of the facts
and circumstances of the case;
(3) discovery and arrest of the suspected offender; (4)
collection of evidence relating to
the commission of the offence which may consist of - (a) the
examination of various
persons (including the accused) and the reduction of their
statements into writing, if the
officer thinks fit, (b) the search of places or seizure of
things considered necessary for the
investigation and to be produced at the trial; and (5) formation of the opinion as to
whether on the material collected there is a case to place
the accused before a Magistrate
for trial and, if so, to take necessary steps for the same
by the filing of a charge-sheet
under Section 173. [Vide H.N. Rishbud and Anr. v. State of
Delhi: AIR 1955 SC 196,
State of M.P. v. Mubarak Ali : AIR 1959 SC 707 and
Navinchandra N. Majithia v. State
of Meghalaya and Ors. : (2000) 8 SCC 323]
24. When the final report is laid after conclusion of the
investigation, the Court has the
power to consider the same and issue notice to the
complainant to be heard in case the
conclusions in the final report are not in concurrence with
the allegations made by them. Though the investigation was conducted by the
CBI, the provisions under Chapter XII of
the Code would apply to such investigation. The police
referred to in the Chapter, for the
purpose of investigation, would apply to the
officer/officers of the Delhi Police
Establishment Act. On completion of the investigation, the
report has to be filed by the
CBI in the manner provided in Section 173(2) of the Code.
[Vide Hemant Dhasmana v.
Central Bureau of Investigation and Anr. : (2001) 7 SCC 536]
25. In view of the same, the Division Bench failed to appreciate the order dated
16.10.2007 passed by the learned single Judge directing the
CBI to investigate into cause
of unnatural death of Rizwanur Rehman. We have already noted
that as per Section 2(h)
of the Code investigation includes all the proceedings under
this Code for collection of
evidence conducted by a police officer. The direction to
conduct investigation requires
registration of an FIR preceding investigation and,
therefore had to be treated as casting
an obligation on the CBI to first register an FIR and
thereafter proceed to find out the
cause of death, whether suicidal or homicidal. In order to
find out whether the death of
Rizwanur Rahman was suicidal or homicidal, investigation
could have been done only
after registration of an FIR. Therefore, CBI was justified
in recording FIR on 19.10.2007
in terms of the order dated 16.10.2007 passed by the learned
Single Judge.”
13. The Apex Court
in Lalita Kumari Vs. Government of U.P.&
Ors.(2008) 7
SCC 164 expressed its
utmost displeasure on the failure of the police authorities of the
country in not
registering FIR’s unless directions are given by the Chief Judicial
Magistrate or the High Courts or the Supreme Court. The case before the Apex Court
concerned the kidnapping of a minor child for which the
police did not register an FIR till
the matter was reported to the senior officials of the police and then sat over the
investigation.
Recommending initiation of contempt proceedings against the delinquent
officials and to punish them for violation of the orders if
no sufficient cause is shown the
Hon’ble Apex Court held that:
“6. In view of the above, we feel that it is high time to
give directions to the Governments
of all the States and Union Territories besides their
Director Generals of
Police/Commissioners of Police as the case may be to the
effect that if steps are not taken
for registration of FIRs
immediately and copies thereof are not made over to the
complainants, they may move the Magistrates concerned by
filing complaint petitions to
give direction to the police to register case immediately
upon receipt/production of copy
of the orders and make over copy of the FIRs to the
complainants, within twenty-four
hours of receipt/production of copy of such orders. It may
further give direction to take
immediate steps for apprehending the accused persons and
recovery of
kidnapped/abducted persons and properties which were the
subject-matter of theft or
dacoity. In case FIRs are not registered within the
aforementioned time, and/or
aforementioned steps are not taken by the police, the
Magistrate concerned would be
justified in initiating contempt proceeding against such
delinquent officers and punish
them for violation of its orders if no sufficient cause is
shown and awarding stringent
punishment like sentence of imprisonment against them
inasmuch as the disciplinary
authority would be quite justified in initiating
departmental proceeding and suspending
them in contemplation of the same.” After the decision the Hon’ble Apex Court by a subsequent order reported as Lalita
Kumari vs. Government of Uttar Pradesh (2008)14 SCC 337 has
referred the issue to a
Larger Bench to
ascertain as to whether upon receipt of
information by the officer in
charge of the police station disclosing cognizable offence,
it is imperative for him/her to
register a case under
Section 154 of Cr.P.C., 1973 or there
lies a discretion with him/her
to make some sort of preliminary inquiry before registering the FIR.
However, while
referring the same to the Larger Bench, the Hon’ble Apex
Court did not grant any stay to
the earlier directions given by the Apex Court in the said
case, the Apex observed as
under:
“5. In view of the conflicting decisions of this Court,
referred to above, we feel that it is
necessary to refer the matter to a larger Bench.
6. Let this petition be placed before the Hon’ble Chief
Justice of India for passing
appropriate orders to list the case before a larger Bench.
7. In view of the interim order passed by this Court, we
feel that it would be expedient to
hear this petition at an early date.”
However, as of date, the matter is still pending before a
three Judge Bench.
14. From an analysis
of the aforesaid judgments the clear legal position which
emerges is that the officer incharge of a police station has
no option or discretion not to
register an FIR once the information relating to the
commission of cognizable offence is
laid before him. The intendment of the legislature in using the expression “shall” in
Section 154 of the Code of Criminal Procedure cannot be
whittled down so as to read the
same as “may” and such an interpretation if taken would
defeat the very legislative intent
behind the spirit of the said Section. Section 154 thus
clearly postulates that once any
information even if given orally to an officer incharge of
the police station relates to the
commission of a cognizable offence, then the said officer
has no choice or alternative left
with him but to register the FIR. The word “relating” in the
said Section also denotes that
the said expression is a of very wide connotation and had the intention of the Legislature
been different then in place of the word “relating” the word
“disclosing” could have been
used in the said Section. This Court has not come across any
judgment where it has been
held that even if an information clearly discloses commission of a cognizable offence,
then also the police can refuse to register an FIR. The
Courts have rather gone to the
extent of saying that even if the police officer has reason
to suspect, on the basis of the
information received that a cognizable offence may have been committed, then he is
bound to record the information and conduct an
investigation. It is thus not the
prerogative, free will or privilege of the police officer to
whimsically decide that in what
cases to register an FIR or not. The provision of Section
154 of the Code is thus
mandatory and the concerned police officer is duty bound to
register the case on the basis
of information disclosing commission of a cognizable offence
and police officer cannot
refuse to register the FIR simply because he does not like
the face of the complainant or
the complainant approaching him is a commoner or he is not
in a good mood to register
the same. There cannot be seen to be any temperamental
twists in the approach of the
police officer not to register an FIR once information
relating to the commission of
cognizable office is laid before him. However, the question of pre-registration
inquiry or
preliminary inquiry no doubt can arise in certain cases such
as where the concerned I.O. based on the information laid before him seriously doubts the
commission of any
cognizable offence on its bare perusal or where the
complaint lodged is a vague,
uncertain or unspecific
or ex facie absurd or the
complaint appears to be false on the
very face of it or the same appears to have been lodged with
some apparent ulterior
motives; but otherwise the concerned police officer is not
supposed to transgress the
mandate of law as envisaged under Section 154(1) Cr.P.C.
15. Reliance was
placed by the respondent State on the judgment of the Apex
Court in the case of Rajinder Singh Katoch Vs. Chandigarh
Administration &
Ors(2007)10 SCC 69, where the Honble Apex Court clearly took a view that the officer
in charge of the
police station is legally bound to
register a First Information Report in
terms of Section 154
Cr.P.C. if the allegations made in the complaint give rise to
commission of a
cognizable offence. The Apex Court, however, held that in a given
case the competent
officer can make a preliminary
enquiry in order to ascertain
whether the first information sought to be lodged
has any substance or not. It
cannot be
lost sight of the fact that in this case the dispute was
between two brothers and both of
them were claiming possession in respect of the property
which was in their joint
possession and hence an observation in the peculiar facts of
the case. Reliance was also
placed on Binay Kumar
Singh Vs. State of Bihar, (1997)1 SCC 283 where the Hon’ble
Apex Court took a view that in a case of nebulous information which is
hardly sufficient
for discerning the
commission of any cognizable offence it
is open to the officer in
charge to collect some
more information by holding preliminary enquiry. Similarly, the
case of Tapinder Singh Vs. State of Punjab & Anr.
1970(2) SCC 113 on which reliance
was placed relates to a cryptic and anonymous telephone
message which did not in any
terms specify a cognizable offence. In the said case the Apex Court took a view
that such
a message cannot be treated as First Information Report
merely because this information
was first in time.
Another judgment cited by the State was
Satish Kumar Goel Vs. State
& Ors 84(2000) DLT 199, in which case the Division
Bench of this Court took a view
that where the
information recorded in the complaint is uncertain, indistinct and not
clearly expressed
which creates a doubt as to
whether the information laid before the
incharge of the police station discloses
commission of a cognizable
offence therefrom
and therefore some inquiry should proceed before the
registration of an FIR. In
Guruduth Prabhu vs. Ms. Krishna, 1999 CRI.L.J 3909, a
judgment of the Karnataka High
Court relied upon by the respondent would not be applicable
to the facts of the present
case as there the court took a view that the Magistrate
cannot order an investigation under
section 156(3) without applying his mind, where the
allegations in the compliant did not
disclose any cognizable offence.
16. As would be thus
seen that in all the aforesaid
judgments, which were
relied upon by the State,
where the court felt that a preliminary inquiry or preregistration inquiry can take place were
those cases where the information
was cryptic,
without any substance, uncertain or
vague which could create a doubt in the mind of the
I.O. that the information laid before him does not clearly disclose commission of a
cognizable offence and there
is a need to conduct a
further inquiry before registration
of an FIR. Mostly in
cases where such preliminary inquiry seems to be required are those
which are akin to civil disputes relating to movable or
immoveable properties, benami
transactions or the cases where economic offences are
involved or the same relate to
fraud and cheating or the cases which require close scrutiny
of some documentary evidence etc and hence would not be of any help to the case set up by of respondent
State. But it is pertinent to note that in all the above
cases the court nowhere held that the
I.O. should not register an FIR even in a case where the
information provided by the
complainant at least prima facie discloses commission of a
cognizable offence, which is
in fact the position in the case at hand. It is a settled legal position that the
reliability,
genuineness and creditability of the information is not to
be tested by the I.O. at the stage
of lodging of a complaint. The concerned police officer
cannot embark upon an inquiry
so as to ascertain whether the information laid before him
is truthful, reliable, genuine or
credible. Any officer
who refuses to register an FIR even in a
case where the
information laid before him prima facie discloses commission
of a cognizable offence
undoubtedly violates
the statutory duty cast upon him and deserves suitable punishment
as held by the Apex Court in Lalita Kumari’s case
(Supra).
16. Turning to the
facts of the present case and applying the aforesaid
principles of law enunciated by the Hon’ble Apex Court and
various High Courts, this
court is of the considered view that there was no
perceptible or genuine reason for the
concerned I.O. to hold a preliminary inquiry into the
alleged offence of murder before
registering an FIR in the present case. A brief recapitulation of facts is that a
young boy
of 22 years with no history of previous bodily ailment was
found dead on the morning of
6.8.2007 under mysterious circumstances; his body was found
lying in a water logged
park with his face downwards; the sister of the boy and his
mother had reached the spot
and they themselves had seen the dead body lying in the
park. It is an admitted case of
the State that the I.O. had not reached the spot and the
body was removed by the PCR
officials with the help of one Constable Beg Raj; the said
Constable had taken the
photographs of the deceased with the help of his mobile
phone camera, but no proper
steps were taken by the police to examine the site or the
surroundings of the site before
lifting the body from the spot. The State also admitted that from 7.8.2007 to
29.5.2008
the petitioner made several complaints to the police and the
higher authorities; even copy
of one such complaints dated 9.8.2007, which has been placed
on record by the State,
clearly states that the family had witnessed injury marks on
the head and back of the
deceased. In the
complaint it was stated that they had told the police on the spot itself
that the wrist watch and mobile phone 9818546606 of the deceased which he had when
he was leaving home were missing from the spot. The
complainant further attributed the
hand of one Mr. Michael behind the said murder who wanted to
befriend a girl who was a
friend of the deceased.
The complainant also stated that the said Michael had physical
scuffle with the deceased and he had also threatened to kill
him.
17. In the face of
the aforesaid clear and explicit allegations leveled by the
complainant what more was required to register an FIR by the
concerned police officials
is beyond the comprehension and understanding of this court.
The dead body lying in
mysterious circumstances is there; the complaint with precise facts is there; the
complainant has even
named a person who could be the culprit
; and in the background
of these apparent facts
if the police takes a stand that
there was a need to conduct a
preliminary enquiry then
nothing else can be inferred by
this court but to believe that
the police right from the inception had the intention to
scuttle the investigation instead of
apprehending the
culprit of the crime after conducting a proper investigation. I find the
justification given by the Delhi Police through the
affidavits filed by its senior officers
and their written submissions that the allegations as were
available did not disclose the commission of a cognizable offence for the
registration of an FIR is opposed to even
commonsensical logic, what to talk about being opposed to
the law. The Delhi Police has
utterly failed in carrying out a proper investigation as it
even failed to follow the proper
norms of investigation when it visited the spot where the
dead body of the victim was
lying. The police during the investigation did not find that
the deceased was carrying any
item or article in his pocket or any money as it would be
inconceivable that the deceased
would not have been carrying anything with him or had empty
pockets. The polygraph
test of some other suspects was conducted by the police
between 24th March to 30th
March, 2009 i.e. almost after a period of 1 ½ years. The
mobile phone of the deceased
could be recovered by the police on 09.08.2008; again after
a gap of about one year. The
presence of alcohol of 150.1 mg in 100 ml blood of the
deceased as per the postmortem
report could not have proved fatal to result in complete
disorientation of the brain of the
deceased due to which he could lose his senses that he
himself fell down resulting in his
death. As per the status report filed by the Delhi Police,
the deceased had first taken beer
with Neelam Sharma and thereafter at least 6-7 persons had
shared whisky from one
bottle. This again would show that the deceased had not
consumed so much of alcohol to
render him totally disoriented and in any case there appears
to be a wide gap between the
time when he had consumed the liquor and when he was left at
the spot of death by
Neelam Sharma. There are so many questions which remain
unanswered and without
commenting upon them, this court is of the opinion that it is quite apparent that the
concerned officials of the Delhi Police have conducted themselves in a most
irresponsible manner and in fact have clearly acted in flagrant and blatant violation of
the law of the land envisaged under Section 154 Cr.P.C. and
various authoritative legal
pronouncements of the Apex Court and other High Courts, some
of which have been
referred above. In the case of Laxminarayan Gupta vs.
Commissioner of Police
130(2006) DLT 490 , this court in the circumstances where an
FIR was not being
registered by the police brought to record the practicality
of the functioning of the police
forces in the right earnest , and the relevant excerpt of the same is reproduced as under :
“Bearing in mind the legal position which emerges from the
above decisions this court
must hold that a statutory duty is cast upon the police to
register and investigate the case
on receipt of an information relating to the commission of a
cognizable offence and it
cannot be left to the sweet will or the so called discretion
of the police officer to register
or not to register a case or to undertake a preliminary
inquiry even before registration of
the case. The Police Officer cannot embark upon an enquiry
in regard to the correctness
or veracity of the facts/allegations disclosed from the
information. It would be hazardous
to give such sweeping power or discretion to the police in
the matter of registration of
FIR which would go contra to the very scheme of the Code of
Criminal Procedure and
Criminal Justice delivery system in the country. Such a
situation may play havoc more
particularly so when the matter is left in the hands of
unscrupulous police officer(s) who
are not acting bona fide or who fail to approach the matter
with the desired objectivity
and sensitivity as may be required in the matter.
14. This court can take judicial notice of the factual
scenario as to how the provision of
Section 154 is being worked out by the police officers in
practice at the ground. Filing of
a large number of petitions under Article 226 of the
Constitution complaining inaction on
the part of the police authorities to register the crime
despite information given/complaint
made to the concerned police authorities is a clear
indication that the concerned police officers are generally loath to register a
crime more particularly so in disclosing certain
trivial cognizable offences and economic offences. The
reasons for doing so are not very
difficult to understand. One reason may be to keep the crime
graph low in the Metropolis
of Delhi and the other could be to save itself from the
botheration of investigation in a
large number of cases. None of these reasons can be said to
afford justifiable ground for
not registering the crime. The very object of having a
strong and large police force in any
State is to register, detect and investigate the crimes and
prosecute the violators of law
besides of course maintaining the law and order etc.. Law
and order can only be
maintained if the commission of crime is prevented and when
the crime is committed, the
same is thoroughly and properly investigated and criminals
brought to the book. For these
reasons also it is incumbent upon the police officer to make
strict compliance of the
provisions of Section 154 Cr.P.C. rather than to embark upon
a kind of preliminary
enquiry in order to ascertain the correctness and veracity
of the allegations made in the
complaint.”
Delhi is no doubt
progressing but so is its crime rate making it the crime capital of
the country. The police cannot contain the crime rate by not
registering the crimes being
reported to them. The crime graph of the city can be kept
low only if the police act fast in
apprehending criminals and not by manipulating the data or
by avoiding registration of
cases wherever required. The number game is thus no viable
justification for the loutish
behaviour of the police which is resulting in the
complainants giving up on the police. It
cannot be forgotten that the police force has a predominant
duty to follow the mandate of
law, but it is distressing to note the reality that despite
the stringent directions from the
portals of law, there is a mammoth difference in the theory
and praxis in the functioning
of the Police which has undoubtedly bedeviled the common
man.
18. The police in the
present case has consumed a miserably long time in the
inquest proceedings. The purpose of holding the inquest as
per section 174 C.r.P.C is
very limited; it is
to ascertain whether the person has committed suicide or has been
killed by an animal or by accident or murdered or has died
by some other reason raising
reasonable suspicion that some other person has committed
the offence. The inquest
proceedings under the scheme of Code of Criminal Procedure
cannot take place of an
investigation. This court in the case of Mahabir Singh Vs.
State 1979 Cri LJ 1159 has
clearly held that if the inquest report is unreasonably
delayed then begins the scope for
questioning the genuineness of the FIR both qua its contents
and the time of its recording.
The Delhi Police thus cannot take refuge of the said inquest
report to say that based on
the observations of the inquest, postmortem and the initial
findings, the Investigating
Officer did not think it appropriate to register a case of
murder. The case in hand clearly
depicts the insensitivity of the Delhi Police and its
pachydermatous indifference to the
suffering of a common man.
This court is constrained to observe that had this case been
not of a an ordinary citizen then the state of affairs would
certainly have been different,
as for the rich and mighty the police makes room and
invariably registers an instant FIR
even where the case may not clearly disclose the commission
of any cognizable offence.
The Police have bedaubed itself with the dubious distinction
of being partisans of the
power yielding somebodies and has on the way belittled the
value of human life. The
trust quotient of the police therefore definitely has come
to naught as the ordinary citizen is made to feel like a worthless entity, a
part of a faceless citizenry whenever
they
approach their so called protectors.
19. Another
unfortunate wounding fact is that even the concerned Magistrates
also showed their soulless approach in not taking prompt
steps to direct the police to
register an FIR, once an application was moved by the petitioner
under Section 156(3)
Cr.P.C. and kept on
calling for one status report after the
other. The Apex Court has
categorically held that the Magistrate while ordering an
investigation under section
156(3) should order the registration of FIR to set the
investigation by the police in motion
(Madhu Bala vs. Suresh Kumar & Ors 1997(8) SCC
476.). It is also has also been held
that even if the Magistrate orders investigation under
section 156(3) for investigation and
does not in so many words order the registration of an FIR,
it is the duty of the police
officer in charge to register an FIR, after all it sets in
motion the investigative machinery
(Mohammed Yousuf vs. Afaq Jahan 2006(1) SCC 627). However,
this would not
culminate to mean that the Magistrate would not make any
effective order once an
application under section 156(3) is filed before him. He has
to either direct the police to
start investigation or proceed to examine the complainant on
oath. There is not
contemplated in the Code any middle path to shirk from the
duty; he has to set the ball
rolling for the case to proceed and cannot leave the
complainant high and dry in a case
where there is sufficient material at least to direct the
police to register an FIR. Hence, in
a case like this where prima facie material was laid by the
complainant disclosing
commission of a cognizable offence, that too an offence of
such a heinous nature which
does not involve probing any document or some kind of rival
claims of the parties, the
Magistrates are equally expected to act with all promptitude
to pass the necessary
directions under Section 156(3) Cr.P.C. instead of granting long adjournments in the
matter. One cannot lose sight of the fact that right to
speedy investigation and right to
speedy trial are not only mandated by provisions of Cr.P.C.
but are the fundamental
rights guaranteed to every person under Article 21 of the
Constitution of India, as held by
the Hon’ble Supreme Court in the case of Raghubir Singh Vs.
State of Bihar AIR 1987
SC 149. It would also be pertinent to refer, while on the
issue, the judgment of the Full
Bench of the Patna High Court in the case of Madheshwardhari
Singh & Anr. Vs. State of
Bihar AIR 1986 Pat 324 which is to the same effect and where
it was held that the right
to speedy trial is applicable not only to actual proceedings
in court but includes within its
sweep the preceding police investigation in a criminal
prosecution as well. It was also
held that a speedy investigation and trial are equally mandated
both by the letter and
spirit of the Code of Criminal Procedure. The right to a
speedy trial is the polestar of the
justice dispensation system of our country and we cannot let
any malfunctioning of any
aegis of the forces be an impediment for securing it.
20. It is a
misconception that the registration of an FIR must necessarily lead
to an arrest of the suspect of the crime as it entirely
depends on each case as there may be
cases where the arrest of the accused maybe essential and
others where the police may
require more incriminating evidence for apprehending the
accused. It is thus a settled law
that mere registration of an FIR in every case may not result into arrest of a person
accused of the offence. It would be useful to refer here to
the recent pronouncement of
the Apex Court in Siddharam Satlingappa Mhetre vs.
Maharashtra (2011) 1 SCC 694
where while laying down parameters for anticipatory bail the
court regarding arrest held
that: “129. In case the arrest is imperative, according to
the facts of the case, in that event, the
arresting officer must clearly record the reasons for the
arrest of the accused before the
arrest in the case diary, but in exceptional cases where it
becomes imperative to arrest the
accused immediately, the reasons be recorded in the case
diary immediately after the
arrest is made without loss of any time so that the court
has an opportunity to properly
consider the case for grant or refusal of bail in the light
of reasons recorded by the
arresting officer.”
Hence, in the given facts of the case, the police can always
postpone the arrest of the
person accused unless it is prima facie satisfied that the
accused named in the complaint
or the accused/suspect of a crime under the given
circumstances cannot at all be involved
in the commission of the crime or in a case where prompt
action to arrest if not taken will
result in jeopardizing or sabotaging the course of
investigation. But certainly the police
cannot postpone the registration of an FIR where the
information laid by the complainant
before it clearly discloses commission of a cognizable
offence. The police is expected to
take fair, impartial and sincere steps whenever any crime is
committed as the prime
function of the police is to protect the lives of the people
and also to maintain the law and
order situation to ensure a crime-free society. It would be useful here to refer to the
observations of the Hon’ble High Court of Punjab &
Haryana in the case of Amrik Singh
vs. The State of Punjab 1983 CRI.L.J 1405 where it was held
as under:
“17. The duty of the police is to prevent and detect crime
and to bring the accused to
justice. Lord Denning, Master of the Rolls in his book
titled "The Due Process of Law",
1980 Edn., in Chap. I of Part Three, has observed about the
role of the police as follows: -
"In safeguarding our freedoms, the police play a vital
role. Society for its defence needs a
well-led, well-trained and well-disciplined force of police
whom it can trust; and enough
of them to be able to prevent crime before it happens, or if
it does happen, to detect it and
bring the accused to justice. The police of course, must act
properly. They must obey the
rules of right conduct. They must not extort confessions by
threats or promises. They
must not search a main's house without authority. They must
not use more force than the
occasion warrants,"
The investigation in the present case had been tainted and
aimed at to save the appellant
and not to bring him to justice. Under the law the
investigator is enjoined upon to unearth
the crime and as soon as he receives the information about
the crime, he is to proceed to
the spot, ascertain the facts and circumstances of the case and arrest the suspected
offender, collect the evidence relating to the commission of
the offence, examine various
persons including the accused, reduce their statements into
writing, to search the places
and take into possession the things considered necessary for
the investigation and to be
produced at the trial and then to form his opinion as to
whether on the material collected
any accused is to be placed before a Magistrate for
commitment and to file a charge-sheet
under. Section 173, Cri. P.C. In the nature of things, an
investigator has to have and is
clothed with many powers by the Jaw for the purpose of
conducting investigation and
where a murder has taken place, it is the duty of the
investigator to send the special report
to the illaqa Magistrate at once.”
Thus, the conduct of the concerned officials of the Delhi
Police in the present case is
highly deplorable and an astonishing spectacle was the
action of the senior officers upto
the rank of the Commissioner of Police who came out in
defence of the shoddy inquiry instead of coming forward to rectify their
reprehensive conduct of not registering an FIR
in such a case involving murder of a young boy of 22 years.
It is a harsh reality that
despite numerous police reforms yet the common man shirks
and hesitates to freely walk
into the police station to lodge a complaint as he is still
afraid and fearful that he will not
be treated well and perhaps would be subjected to harassment
for reporting any crime,
which otherwise is his legitimate right. It is the notion that the police procedures
are
veiled, slow paced and uncertain in outcome which has
further plummeted the public
trust in the police. The Delhi police motto states “Citizens
First” and a part of its Mission
statement reads as:
“The objective of Delhi Police is to Uphold the law fairly
and firmly; To prevent crime;
to pursue and bring to justice Those who break the law; To
keep the peace in partnership
with the community; To protect, help and reassure the
people;……”
But these promising words seem to have no verisimilitude.
They seem so hollow
especially in the present case, where they have whittled
down to become nothing but a
teasing mirage.
21. In the light of
the above discussion, where the petitioner has borne the harrowing
brunt of a tardy investigation, this court is of the
considered view that this is a fit and
deserving case where the investigation needs to be
transferred to the CBI. No doubt the
CBI, which is
considered to be a premier investigating
agency of this country is already
burdened with many important investigations involving huge scams, but keeping in view
the fact that the
death of a young boy of 22 years
and the slack investigation conducted
by the Delhi Police
and also the shamble justifications
given by the senior officers of
Delhi Police in not registering an FIR, the
CBI is the only other agency which can be
looked upto to carry
on the investigation in this case. The
CBI is therefore directed to
complete the investigation as early as possible but not
later than a period of three months
from the date of this order.
22. Since in the present case the petitioner and the entire family of the
deceased are the
hapless victims who not only had to pass
through the galling and
traumatic period due to the sudden death of their beloved
but they were further forced to
file one case after the other just for seeking the
registration of a simple FIR into the
alleged murder case, therefore, the cost of Rs.2 lac is imposed upon the
Delhi Police for
their illegal, contemptuous
and defiant approach in not
following the law of the land.
The said amount shall be paid by the Delhi Police to the
petitioner within a period of one
month from the date of this order.
23. With the above
directions, the present petition stands disposed of.
Sd./-
May 18, 2011 KAILASH GAMBHIR, J
