Registration of case a must for police enquiry if offence is cognisable, says HC
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2009
C O R A M
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
Crl.O.P.Nos.5368, 5390, 5498, 5538, 5558, 5560, 5572, 5739, 5836, 6034, 6219, 6220, 6221, 6225, 6284, 6286, 6289, 6299, 6300, 6301, 6304, 6373, 6399, 6400, 6549, 6639, 6714, 6897, 6941, 6999, 7096, 7098, 7433, 7469, 7785, 7820, 7842, 7938, 7996, 8016, 8048, 8108, 8109, 3621, 8110, 8122, 8231, 8366, 8370, 8732, 8739, 8787, 8844, 8874, 8928, 8930, 8951, 9054, 9055, 9112, 9172, 9371, 9464, 9578, 9903, 9919, 9929, 10278, 10339, 10548, 10567, 10680, 10681, 10774, 10952, 10953, 10998, 2792, 7657, 7897, 7904, 11013, 11105, 11153, 11154, 11156, 11196, 11235, 11287, 11320, 11339, 11407, 11425, 11469, 11471, 11489, 11490, 11573, 11675, 11678, 11779, 11860, 11873, 11877, 11948, 11949, 12008, 12084, 12113, 12186, 12199, 12236, 12268, 12269, 12279, 12369, 12441, 12445, 12446, 12457, 12458 and 5504 of 2009
and
M.P.Nos.1 of 2009
Kathiravan … Petitioner
vs.
State rep by
1.The Commissioner of Police
Coimbatore City
Coimbatore
2.The Inspector of Police
B.15, Gandhipuram Police Station
Coimbatore … Respondents
These Criminal Original Petitions have been filed under Section 482 Cr.P.C. to direct the respondent concerned to register a case based on the complaint of the petitioners in each one of the petitions and to file the final report within the time to be stipulated by this Court.
For Petitioners : Mr.A.Ramesh,
Senior Counsel (Amicus Curiae)
In Crl.O.P.No.5368/2009 Mr.N.Anand
In Crl.O.P.No.5390/2009 Mr.Devendhran
In Crl.O.P.No.5498/2009 Mr.Ramachandran
In Crl.O.P.No.5538/2009 Mr.M. Balasubramanian
In Crl.O.P.No.5558/2009 Mr.E.Vinothkumar
In Crl.O.P.No.5560/2009 Mr.N.S.Sivakumar
In Crl.O.P.No.5572/2009 Mr.L.Baskaran
In Crl.O.P.No.5739/2009 Mr.Aravind Subramaniam
In Crl.O.P.No.5836/2009 Mr.Norton and Grant
In Crl.O.P.No.6034/2009 Mr.D.Chandrasekar
In Crl.O.P.No.6219/2009 Mr.C.Prakasam
In Crl.O.P.No.6220/2009 Mr.J.I. Raj kumar Roberts
In Crl.O.P.No.6221/2009 Mr.K.M.Ramesh
In Crl.O.P.No.6225/2009 Mr.G. Ramadurai
In Crl.O.P.No.6284/2009 Mr.C.Prabakaran
In Crl.O.P.No.6286/2009 Mr.L.Baskaran
In Crl.O.P.No.6289/2009 Mr.K.Thilageswaran
In Crl.O.P.No.6299/2009 Mr.P.Saravanan
In Crl.O.P.No.6300/2009 Mr.N.Manokaran
In Crl.O.P.No.6301/2009 Mr.K.Thiruvengadam
In Crl.O.P.No.6304/2009 Mr.S.Ravee kumar
In Crl.O.P.No.6373/2009 Mr.E.Kannadasan
In Crl.O.P.No.6399/2009 Mr.N.Srinivasulu
In Crl.O.P.No.6400/2009 Mr.B.Senguttuvan
In Crl.O.P.No.6549/2009 Mr.K.Mahendran
In Crl.O.P.No.6639/2009 Mr.M.Ganeshan
In Crl.O.P.No.6714/2009 Mr.L.Baskaran
In Crl.O.P.No.6897/2009 Mr.C.Deivasigamani
In Crl.O.P.No.6941/2009 Mr.P.Jagadeesan
In Crl.O.P.No.6999/2009 Mr.P.M.Maharaja
In Crl.O.P.No.7096/2009 Mr.R.Narndran
In Crl.O.P.No.7098/2009 Mr.K.Thiruvalluvan
In Crl.O.P.No.7433/2009 Mr.V.Murugesan
In Crl.O.P.No.7469/2009 Mr.Siraj and Siraj
In Crl.O.P.No.7785/2009 Mr.S.Mthudurai
In Crl.O.P.No.7820/2009 Mr.D.Sampathkumar
(Party-in-Person)
In Crl.O.P.No.7842/2009 Mr.P.Rathanavel
In Crl.O.P.No.7938/2009 Mr.V.Ramana Reddy
In Crl.O.P.No.7996/2009 Mr.N.Suresh
In Crl.O.P.No.8016/2009 Mr.M.Saravanakumar
In Crl.O.P.No.8048/2009 Mr.R.C.Paul Kanagaraj
In Crl.O.P.No.8108/2009 Mr.T.Velumani
In Crl.O.P.No.8109/2009 Mr.I.M.Agha
In Crl.O.P.No.3621/2009 Mr.C.Ramesh
In Crl.O.P.No.8110/2009 Mr.V.R.Velraj
In Crl.O.P.No.8122/2009 Mr.D.N.Dhurgasha
In Crl.O.P.No.8231/2009 Mr.M.V.Muralidaran
In Crl.O.P.No.8366/2009 Mr.A.Thirumaran
In Crl.O.P.No.8370/2009 Mr.A.Thirumaran
In Crl.O.P.No.8732/2009 Mr.M.V.Muralidaran
In Crl.O.P.No.8739/2009 Mr.K.kalyanasundaram
In Crl.O.P.No.8787/2009 Mr.C.V.Kumar
In Crl.O.P.No.8844/2009 Mr.P.Karlmarx
In Crl.O.P.No.8874/2009 Mr.A.V.Raja
In Crl.O.P.No.8928/2009 Mr.K.Kalyanasundram
In Crl.O.P.No.8930/2009 M/s.Sun Associates
In Crl.O.P.No.8951/2009 Mr.L.Baskaran
In Crl.O.P.No.9054/2009 Mr.I.C.Vasudevan
In Crl.O.P.No.9055/2009 Mr.I.C.Vasudevan
In Crl.O.P.No.9112/2009 Mr.R.C.Paul kanagaraj
In Crl.O.P.No.9172/2009 Mr.S.Thiruvengadam
In Crl.O.P.No.9371/2009 Mr.K.Thilagaraj
In Crl.O.P.No.9464/2009 Mr.S.Dhanasekaran
In Crl.O.P.No.9578/2009 Mr.C.Prakasam
In Crl.O.P.No.9903/2009 Mr.J.Nagarajan
In Crl.O.P.No.9919/2009 Mr.R.Shanmugham
In Crl.O.P.No.9929/2009 Mr.P.Balambal
In Crl.O.P.No.10278/2009 Mr.E.Kannadasan
In Crl.O.P.No.10339/2009 Mr.J.Ramakrishnan
In Crl.O.P.No.10548/2009 Mr.Gnanasekar
In Crl.O.P.No.10567/2009 Mr.V.Anuradha
In Crl.O.P.No.10680/2009 Mr.G.Paranthaman
In Crl.O.P.No.10681/2009 Mr.Ancy yohanan
In Crl.O.P.No.10774/2009 Mr.A.Arasu Ganesan
In Crl.O.P.No.10952/2009 Mr.G.Pugazhenthi
In Crl.O.P.No.10953/2009 Mr.K.Balaji
In Crl.O.P.No.10998/2009 Mr.D.Rajagopal
In Crl.O.P.No.2792/2009 Mr.Vedavallikumar
In Crl.O.P.No.7657/2009 Mr.Sankar and Pandian
In Crl.O.P.No.7897/2009 Mr.P.Ram manokar
and
In Crl.O.P.No.7904/2009
In Crl.O.P.No.11013/2009 Mr.M.V.Muralidaran
In Crl.O.P.No.11105/2009 Mr.R.C.Paul Kanagaraj
In Crl.O.P.No.11153/2009 Mr.G.Anabayachozhan
In Crl.O.P.No.11154/2009 Mr.M.J.Sundar
In Crl.O.P.No.11156/2009 Mr.D.Naveen Durai Babu
In Crl.O.P.No.11196/2009 Mr.K.Sridhar
In Crl.O.P.No.11235/2009 Mr.M.Thirumalai
In Crl.O.P.No.11287/2009 Mr.S.Sampathkumar
In Crl.O.P.No.11320/2009 Mr.C.Prabakaran
In Crl.O.P.No.11339/2009 Mr.Satish parasan
In Crl.O.P.No.11407/2009 Mr.B.Gandhi
In Crl.O.P.No.11425/2009 Mr.MA.P.Thangavel
In Crl.O.P.No.11469/2009 Mr.S.Sivakumar
In Crl.O.P.No.11471/2009 Mr.C.S.Saravanan
In Crl.O.P.No.11489/2009 Mr.Siraj and Siraj
In Crl.O.P.No.11490/2009 Mr.M.Anbuselvan
In Crl.O.P.No.11573/2009 Mr.S.ArokiaManiraj
In Crl.O.P.No.11675/2009 Mr.A.Arasu Ganesan
In Crl.O.P.No.11678/2009 Mr.J.Saravanakumar
In Crl.O.P.No.11779/2009 Mr.P.Subburaj
In Crl.O.P.No.11860/2009 Mr.M.Ranjithkumar
In Crl.O.P.No.11873/2009 Mr.Rexsta Reniya
In Crl.O.P.No.11877/2009 Mr.Razhaq
In Crl.O.P.No.11948/2009 Mr.M.Pari
In Crl.O.P.No.11949/2009 Mr.M.R.Sivakumar
In Crl.O.P.No.12008/2009 Mr.M.Thirumalai
In Crl.O.P.No.12084/2009 Mr.V.K.Rajagopalan
In Crl.O.P.No.12113/2009 Mrs.P.Kavitha
In Crl.O.P.No.12186/2009 Mr.I.C.Vasudevan
In Crl.O.P.No.12199/2009 Mr.A.Abdul Rahman
In Crl.O.P.No.12236/2009 Mr.N.Baskaran
In Crl.O.P.No.12268/2009 Mr.S.Thirumavalavan
In Crl.O.P.No.12269/2009 Mr.S.Parthasarathy
In Crl.O.P.No.12279/2009 Mr.E.Kannadasan
In Crl.O.P.No.12369/2009 Mr.K.P.Muthumohan
In Crl.O.P.No.12441/2009 Mr.R.Sreedhar
In Crl.O.P.No.12445/2009 Mr.G.Krishnamurthy
In Crl.O.P.No.12446/2009 Mr.B.Nambiselvan
In Crl.O.P.No.12457/2009 Mr.K.Shivakumar
In Crl.O.P.No.12458/2009 Mr.S.Shankar
In Crl.O.P.No.5504/2009 Mr.K.Muthuvisakan
For Respondents : Mr.I.Paul Nobel Devakumar,
Government Advocate (Crl.Side)
COMMON ORDER
All these petitions have been filed by the respective de-facto complainants seeking directions to the Station House Officers of the police stations concerned to register first information reports on the basis of the complaints given by them, as they have not chosen to register first information reports so far. In fact, there are a number of cases in which this court on earlier occasions had granted such reliefs directing the police to register first information reports when this court was satisfied that the allegations made in the complaints were sufficient to make out cases of commission of a cognizable offences.
2. However, relying on some of the recent judgments of the Hon’ble Supreme Court, it was contended on behalf of the police, that the police do have a discretion either to register a case upon receiving a complaint containing allegations attracting cognizable offences or to conduct a preliminary enquiry and based on such enquiry to decide whether to register a case or not. The said contention was mainly based on the observations made by the Hon’ble Supreme Court in State of Haryana and Others versus Bajan Lal and Others reported in 1992 Supp(1) SCC 335. The said view was also followed in Rajinder Singh Katoch vs. Chhandigarh Administration reported in (2007) 10 SCC 69.
3. It has also been contended on behalf of the police that though the police may have got an obligation to register a case based on a complaint if it discloses commission of a cognizable offence, the person aggrieved by the non-compliance with such obligation cannot approach the High Court under section 482 Cr.P.C for a direction to the police to register a case. The said contention was raised relying on the observations made by the Hon’ble Supreme Court in Sakirivasu vs. State of U.P. reported in 2008(1) MLJ (Crl) 1393 SC and Alaque Padamsee and others vs. Union of India and others reported in 2008(1) MLJ (Crl) 490 SC. The observations made by the Hon’ble Supreme Court in the above said cases came to be considered by a learned single judge of this court in G.Arokiya Marie vs. Superintendent of Police, Villupuram reported in 2008(2) MLJ (Crl) 796, another single judge of this court sitting in the Madurai Bench of the Madras High Court in A.Sowfila vs. The Commissioner of Police, Madurai and 2 others reported in 2008(2) LW (Crl) 843. Yet, since some of the points, which the learned counsel appearing for the petitioners in these cases want to bring it to the notice of the court were not put-forth by the petitioners in the earlier cases and not decided therein, the consideration of those aspects has become necessary for the disposal of these petitions. Hence all these petitions are taken up together for disposal by a common order.
4. The counsel for the petitioners in all these petitions were led by Mr.A.Sirajudeen, who submitted the main arguments. In addition, the advocates on record concerned also supplemented the same with their arguments. Mr.A.Ramesh, learned senior counsel also extended his help to the court by making legal submissions as amicus curiae. Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) advanced arguments on behalf of the respondents in all these petitions. The materials produced at the time of hearing and available on record were also perused.
5. Aggrieved by the failure of the police to register criminal cases based on the complaints of the petitioners herein, they have approached this court invoking the inherent powers of the High Court under section 482 Cr.P.C, seeking directions to the police officers concerned to register cases based on the respective complaints. It is their contention that though the complaints disclosed commission of cognizable offences, the police failed to discharge their mandatory duty of registering cases and investigating the same.
6. The petitioners rely on section 154 of Cr.P.C in support of their contention that the police officer in charge of a police station does not have a discretion either to register or not to register a case if the complaint discloses the commission of a cognizable offence. The said section has been interpreted in umpty number of cases to mean that the duty cast on the police officer in charge of the police station to register a case if the complaint discloses commission of a cognizable offence is mandatory. As it is an accepted proposition of law that a police officer, who receives a complaint disclosing commission of a cognizable offence, is duty bound to register a case, it is needless to cite all the cases in which such a proposition has been reiterated.
7. However, the learned Government Advocate (Crl.Side), representing the respondent police in all these petitions, has submitted that though generally an officer in charge of a police station is duty bound to register a case when the complaint discloses the commission of a cognizable offence, it cannot be said that the police do not have any discretion to conduct a preliminary enquiry before making a decision whether to register a case or not. It is the contention of the learned Government Advocate (Crl.Side) that the general rule that the police officer is bound to register a case, if the complaint discloses commission of cognizable offences, shall be read with a rider that in appropriate cases the police shall have the discretion to conduct preliminary enquiry before registering a case. In support of his contention, the learned Government Advocate (Crl.Side) relied on the observations made by the Hon’ble Judge Mitter, J. in P.Sirajuddin v. State of Madras reported in (1970) 1 SCC 595 and Mudholkar J. in a separate judgment concurring with the conclusion of Subba Rao, J. in State of Uttar Pradesh v. Bhagwant Kishore Joshi reported in AIR 1964 SC 221, which view was approved in 1992 by the Supreme Court in State of Haryana and Others versus Bajan Lal and Others reported in 1992 Supp(1) SCC 335. The observation made by Mudholkar, J. in State of Uttar Pradesh v. Bhagwant Kishore Joshi reported in AIR 1964 SC 221, is as follows:-
“In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it.”
Mitter, J. in P.Sirajuddin v. State of Madras reported in (1970) 1 SCC 595 made the following observations:-
“Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specifically one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general…”
These observations were quoted with approval by Supreme Court in Bajan Lal’s case and their Lordships of the Supreme Court in the said case observed in paragraph 79 of the judgment that they were in agreement with the views expressed by Mitter, J. and Mudholkar, J. in the above mentioned decisions. The same view was expressed in Rajinder Singh Katoch vs. Chhandigarh Administration and Others reported in (2007) 10 SCC 69.
8. Relying on the observations made in the above said cases, the learned Government Advocate (Crl.Side) has submitted that the police officer can conduct a preliminary enquiry into the genuineness of the allegations before ever registering a case and that hence rushing to the court with a petition under section 482 Cr.P.C seeking a direction to register a case without waiting for the result of such preliminary enquiry should be discouraged.
9. Per contra, the learned counsel for the petitioners have submitted that if the context in which the observations were made in the Supreme Court cases cited by the learned Government Advocate (Crl.Side) is taken into consideration, one can rule out the general proposition that the police officer can conduct a preliminary enquiry before registering a case to satisfy himself regarding the genuineness of the allegations made therein even if the complaint discloses the commission of a cognizable offence; that the police are duty bound and it is mandatory for them to register cases when the complaints disclose commission of cognizable offences and that only in exceptional cases, a preliminary enquiry can be conducted before registering a case. It is the contention of the learned counsel for the petitioners that such cases are where the public officials are sought to be prosecuted for dishonesty, misuse of power, corruption in discharge of their official functions or having wealth disproportionate to their known sources of income. The learned counsel for the petitioners have also stated that in cases where the source of information is not known, it shall be open to the police to conduct a preliminary enquiry before registering a case. It has also been contended that if the police are given power to conduct preliminary enquiry before registering a case, the same will be used by the police as a weapon of oppression not only against the proposed accused but also against the person furnishing information and the same will open the gates of corruption and that the legislature, in its wisdom, would not have intended to allow such things to happen by giving a discretion to the police either to register or not to register a case, if the complaint discloses commission of a cognizable offence.
10. Before ever considering the observations made by the Courts in the judgments cited on either side, let us consider the relevant statutory provision to find out whether the parliament has made it mandatory for the police to register a case, if the complaint discloses commission of a cognizable offence. Section 154 of Cr.P.C. Reads as follows:-
154. Information in cognizable cases. (1) Every information relating tot he 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 a police station in relation to that offence.”
11. A reading of section 154 of Cr.P.C will make it clear that the duty cast upon the police to register a case when the complaint discloses commission of a cognizable offence is absolute and that the police cannot have any enquiry before registering a case. Police get power to investigate in a cognizable case only when a FIR is registered. In case of non-cognizable offences, police cannot conduct investigation without the order of the Magistrate as per section 155 of Cr.P.C. In Mahindra vs. State of Punjab reported in AIR 2001 SC 2113, it was held that the failure of police to register a case, when the complaint disclosed commission of a cognizable offence, for no reasons whatsoever, was improper. Even in Bajan Lal’s case, the Hon’ble Supreme Court made it clear in paragraph 32 and 33 of the judgment that once an information was laid before a police officer in compliance with the requirements of section 154 of Cr.P.C, the police officer was duty bound to enter it in the prescribed form and register a case and that he could not refuse to do so on the ground that it was not reasonable or credible information. The relevant passages are as follows:-
“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)(1) 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 190(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.”
“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.”
In paragraph 34 of the very same judgment, the Hon’ble Supreme Court went further and added as follows:-
“34. it may be noted that though a police officer cannot investigate a non-cognizable offence on his own as in the case of cognizable offence, he can investigate a non-cognizable offence under the order of a Magistrate having power to try such non-cognizable case or commit the same for trial within the terms under Section 155(2) of the Code but subject to Section 155(3) of the Code. Further, under the newly introduced sub-section (4) to Section 155, where a case relates to two offences of which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officer can investigate such offences with the same powers as he has while investigating a cognizable offence.”
The said observation will make it clear that no investigation can be conducted by a police officer without registering a case in case of cognizable offence and without getting the orders of the Magistrate in case the complaint discloses commission of non-cognizable offences alone.
12. Even in the judgments of the Supreme Court relied on by the learned Government Advocate (Crl.Side), the Hon’ble Supreme Court has made observations to the effect that once an information is laid before the police officer in-charge of the police station in accordance with Section 154(1) of the Code of Criminal Procedure disclosing the commission of a cognizable offence, then it is obligatory on the part of the officer in-charge of the police station to register a case first and then to proceed with the investigation. In Alaque Padamsee and others vs. Union of India and others reported in 2008(1) MLJ (Crl) 490 SC, His Lordship Dr.Arijit Pasayat, J. speaking for the bench (consisting of three Hon’ble Judges) has made the following observations:-
“The correct position in law, therefore, is that the police officials are to register the FIR whenever facts brought to its notice show that cognizable offence has been made out.”
13. Similarly, in Rameshkumari v. State (N.C.T. of Delhi) and Ors. reported in AIR 2006 SC 1322, His Lordship Sema, J. speaking for the bench, referring to the views expressed by the Supreme Court in Bajan Lal’s case made the following observations:-
“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.”
14. In Lallan Chaudhary & Ors. v. State of Bihar & Anr. reported in AIR 2006 SC 3376 also His Lordship Sema, J. made the following observations in paragraphs 8 and 10 which are reproduced hereunder:-
“8. 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.”
“10. 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.”
15. From the observations of the Hon’ble Supreme Court made in various cases cited supra, it is quite obvious that the officer in-charge of the police station, on receipt of a complaint (information) disclosing commission of a cognizable offence, is duty bound to register a case and such officer cannot probe into the allegations to find out whether they are true or not before registering a case. However, it does not mean that in no case the officer in-charge of the police station can conduct a preliminary enquiry to make a decision as to whether a case can be registered for being investigated upon in accordance with the provisions of Cr.P.C. But such cases are only exceptions to the general rule. Such exception should not be generalised by the police to say that the police do have a discretion either to register the case or to conduct a preliminary enquiry to make a decision whether to register a case or not.
16. A consideration of the cases decided by the Supreme Court will make it clear that those were exceptional cases wherein the court wanted to give some kind of protection to the public figures from cases being registered on frivolous complaints alleging corruption, dishonesty, abuse of power etc. in their official functions or cases of wealth disproportionate to the known sources of income.
In P.Sirajuddin v. State of Madras reported in (1970) 1 SCC 595, a public servant who occupied the top position in a department was publically charged with acts of dishonesty. In State of Uttar Pradesh v. Bhagwant Kishore Joshi reported in AIR 1964 SC 221, a Booking Clerk in Railways was accused of allegedly misappropriating government money and also committing breach of trust during the period between 22.10.1955 and 26.05.1956. The Railway Sectional Officer, Special Police Establishment, Lucknow sent a report to the Superintendent of Police, Special Police Establishment stating that he received information through a source that the accused was in the habit of misappropriating government money, giving seven instances of the act of misappropriation committed by him and informing him that if a proper investigation was made many more cases of misappropriation would come to light. As the information was regarding the habit of a Railway servant misappropriating government money and the details of the commission of offences were not fully furnished before registering a case and investigating the same, the Sub-Inspector of Police, as per the direction of the Superintendent of Police, conducted a preliminary enquiry by checking the relevant records pursuant to which he submitted a report whereupon a case was registered. In the said case, it was held that the preliminary enquiry conducted would not amount to investigation and the same would not be the ground on which the conviction of the trial court could be set aside.
17. The preponderance of the decisions made by the Hon’ble Supreme Court in this regard will show that it is desirable to have a preliminary enquiry before registering a formal FIR when public servants are sought to be prosecuted for dishonesty and corruption in discharge of their duties or for having wealth disproportionate to the known sources of income. This will be clear from the fact that the Hon’ble Supreme Court in Bhajan Lal’s case has held that the registration of the case without conducting a preliminary enquiry was not a ground for quashing the FIR. Only in Rajinder Singh Katoch vs.Chandigarh Administration and Ohters reported in (2007) 10 SCC 69, His Lordship S.B.Sinha, J. has made the following observations.
“We are not obvious to the decision of this court in Rameshkumari v. State (N.C.T. of Delhi) and Ors. reported in AIR 2006 SC 1322 wherein such a statutory duty has been found in the Police officer. But, as indicated herein before, in an appropriate case, the police officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations have been made had any substance or not.”
If we consider the said observation in juxtaposition to the observations made in Ramesh Kumari vs. State (N.C.T. Of Delhi) and Lallan Chaudhary & Ors. v. State of Bihar & Anr. it will make it clear that the subsequent bench of the Hon’ble Supreme Court was of the view that only in exceptional cases such preliminary enquiry should be made before registering a case. Such exceptional cases can be enumerated thus:-
1)cases wherein allegations are made against public officials of dishonesty, corruption, misuse of official power and possession of wealth disproportionate to the known sources of income;
2)Cases wherein the person from whom the information received is not identified;
3)Cases wherein the allegations in the complaint are vague and not unequivocal in disclosing commission of cognizable offence;
and
4)Cases in which there must be traces of inherent infirmity or absurdity.
18. While recognising the power of the police, rather a duty of the police, to conduct a preliminary enquiry in appropriate cases, a note of caution should be appended that the police should not resort to do so without informing the de-facto complainant immediately on receipt of the complaint and should not postpone the registration of the case indefinitely. The police should not adopt the practice of conducting an investigation in the guise of preliminary enquiry to arrive at a conclusion whether to register a case or not. Keeping the said observations in mind, the prayer made in the present petitions are to be considered.
19. In none of the petitions, allegations are made against public officials of dishonesty, corruption, misuse of official power or possession of wealth disproportionate to the known sources of income, which will necessitate conducting a preliminary enquiry before registering a case. It is not the case of the respondent in any one of the petitions that the information to the police came from undisclosed source which necessitated the police to conduct a preliminary enquiry. The respondents in the respective petition have not come forward with a plea that the allegations found in the complaint have traces of infirmity or absurdity to detract the police from registering a case without conducting a preliminary enquiry. It is also not the case of the respondents that the allegations are vague, which necessitated the concerned police officer to postpone the registration of the case till the completion of a preliminary enquiry. Apart from the fact that the cases do not fall in any one of the categories enumerated above, there is nothing to show that any preliminary enquiry was conducted in any one of the cases. Even if it is assumed that preliminary enquiry was conducted by the concerned police officer to arrive at a decision whether to register a case or not, the same cannot take such a long time and the preliminary enquiry should have been completed within the shortest possible of time. Except a few cases in which it has been reported by the respondent concerned that FIRs have been registered based on the complaints concerned in such petitions in all other cases, for months together, the police officers concerned have not taken any decision either to register or not to register the case. The same will make it obvious that the concerned police officers were not conducting any preliminary enquiry with a view to arrive at a decision whether to register a case or not. Therefore, the contention raised by the learned Government Advocate (Crl.Side) that the police officers concerned have postponed the decision regarding registration of the case till the completion of a preliminary enquiry has to be rejected as untenable.
20. The next contention raised by the learned Government Advocate (Crl.Side) on behalf of the respondent police is that even if a complaint discloses the commission of a cognizable offence in unequivocal terms and the police officer in-charge of the police station has failed to comply with the mandatory duty of registering a case in accordance with Section 154 Cr.P.C, the aggrieved person cannot seek a direction to the police under Section 482 Cr.P.C. In support of his contention, the learned Government Advocate (Crl.Side) relied on the judgments of the Hon’ble Supreme Court in Alaque Padamsee and others vs. Union of India and others reported in 2008(1) MLJ (Crl) 490 SC, and Sakirivasu vs. State of U.P. reported in 2008(1) MLJ (Crl) 1393 SC . In Sakiri Vasu’s case a two judge bench of the Hon’ble Supreme Court made an observation that approaching the High Court by way of a writ petition under Artcile 226 of the Constitution of India or under Section 482 Cr.P.C for a direction to the police to register a case, when the police officer in-charge of the police station fails to register a case on receipt of a complaint disclosing commission of a cognizable offence, was improper. In Alaque Padamse’s case, a three judge bench of the Hon’ble Supreme Court held that though the police were duty bound to register a case if the complaint received by them disclosed commission of a cognizable offence, the complainant could not seek remedy by way of invoking the writ jurisdiction of the High Court under Article 226 of the Constitution of India or by invoking the inherent powers of the High Court under Section 482 Cr.P.C. In Sakiri Vasu’s case it was held that the remedy in such cases for the complainant was to approach the Superintendent of Police under Section 154(3) Cr.P.C and in case of inaction on his part also to approach the Judicial Magistrate by way of an application under Section 156(3) Cr.P.C for a direction to investigate the matter. In Alaque Padamse’s case it was held that in case of refusal on the part of the police official to register a case even though the complaint disclosed the commission of a cognizable offence, the modalities to be adopted by the complainant were as set out in Section 190 r/w Section 200 Cr.P.C.
21. The above said judgments of the Supreme Court came to be considered by a learned single judge (Justice M.Jeyapaul) of this court in G.Arokiya Marie v. Superintendent of Police reported in 2008(2) MLJ (Crl) 796. It was held therein that the bar for entertaining a writ petition or a petition under Section 482 Cr.P.C seeking a direction to register a case was not absolute and that in appropriate cases, namely cases of serious nature requiring immediate action so as to prevent the evidence getting erased, such directions would be issued. However, it was held therein in clear and unambiguous terms that the power under Section 482 Cr.P.C should be sparingly used. The following are the observations made by the learned brother Judge in the above said case.
“The entire text of the aforesaid judgment would make it clear that when alternative modality has been contemplated under Sections 154(3), 190 read with 156(3) and Section 200 of the Code of Criminal Procedure, the High Court should ordinarily refuse to invoke the inherent jurisdiction as provided under Section 482 of the Code of Criminal Procedure. The term “ordinarily” and the phrases “should not encourage” and “should discourage” have been employed by the Hon’ble Supreme Court in its wisdom to mean that Section 482 of the Code of Criminal Procedure shall not be a thoroughfare but an emergency exist for the aggrieved litigants. In my considered opinion, the aforesaid decision of the Honourable Supreme Court does not take away the entire inherent jurisdiction conferred on the High Court under Section 482 of the Code of Criminal Procedure. Therefore, ordinarily, the aggrieved party shall not approach the Court invoking the inherent jurisdiction and the Court also shall not casually direct the investigating officer to register the cases of all varieties.”
22. The said view was approved and followed by another Hon’ble Judge of this court (Justice K.N.Basha) in A.Sowfila vs. The Commissioner of Police Madurai & Others reported in 2008(2) LW (Crl) 843. The view expressed by the learned single judge is that when the police officers failed to perform their duty of registering a case on receipt of a complaint disclosing commission of a cognizable offence, the aggrieved person, namely the de-facto complainant can approach the High Court under Section 482 Cr.P.C for a direction to the police officer concerned to register a case and investigate the same. It was also observed therein that the availability of alternative remedy by way of preferring a private complaint or by moving the concerned Judicial Magistrate under Section 156(3) for a direction for investigation of the case shall not be a bar for entertaining a petition under Section 482 Cr.P.C seeking a direction to the police to register a case. However, it was further observed that the remedy available under Section 482 Cr.P.C being a discretionary one, the inherent power should be sparingly used and the direction should not be casually issued without considering the pressing need for issuing such a direction in a particular case. Of course in Arokiyamarie’s case the learned Judge has stated that, if the offences are graver in nature, the court has to act with swiftness by issuing directions to ensure that the evidence of such heinous crimes do not get erased by passage of time.
23. In yet another case decided by myself sitting in the Madurai Bench of the Madras High Court in Venkatesh vs. The Superintendent of Police, The Inspector of Police and The Sub-Inspector of Police (Crl.O.P.(MD) No.9245/2008) reported in MANU/TN/0966/2009, the following observations were made.
“However, in the event of the police officer in-charge of the police station refusing to register a case even though the complaint discloses commission of a cognizable offence, as per the judgments of the Hon’ble Supreme Court in Sakiri Vasu v. State of U.P. reported in 2008(1) MLJ (Crl) 1393 (SC); and in Aleque Padamse v. Union of India reported in 2008(1) MLJ (Crl) 490 (SC), the remedy available to the complainant/informant is to first approach the Superintendent of Police concerned and then, in case of inaction on his part also, to approach the Judicial Magistrate either under Section 156(3) Cr.P.C or under Section 200 Cr.P.C by way of a private complaint. The rigour of the said judgment has been diluted to some extent by the judgment of a learned single judge of this court sitting in the Principal Bench in G.Arokiya Marie v. Superintendent of Police reported in 2008 (2) MLJ (Crl) 796, wherein it has been held that the said rule enunciated by the Hon’ble Supreme Court is not without exception and that in appropriate cases, in order to prevent miscarriage of justice, directions can be issued. The learned single judge has given some illustrations of the cases (murder, attempt to murder wherein grievous injuries have been caused, robbery, dacoity, rape and attempt to rape), in which directions have to be issued so as to ensure that the evidence in such serious cases do not get erased by passage of time.”
24. The list of offences enumerated in Arokiya Marie’s case as heinous crimes in respect of which directions should be issued to ensure that the evidence in such cases do not get erased by passage of time cannot be said to be exhaustic. Yet another category of cases should also be added as cases wherein the High Court has to issue directions under Section 482 Cr.P.C for registration of cases in order to render complete justice and prevent miscarriage of justice. Such cases are triable exclusively by Sessions Court. The reasons are given in the subsequent paragraph.
25. Mr.A.Ramesh, learned senior counsel rightly pointed out that, if the de-facto complainants are to approach the Magistrate by way of a private complaint, there shall be no guarantee that the Magistrate concerned, without taking cognizance of the offence, would forward the complaint to the police with a direction to register a case and investigate the same and that a Magistrate shall be totally acting within his power if he chooses to take cognizance of the offences and proceed with conducting inquiry. In such an event, the learned Magistrate shall not have the power to direct investigation by a police officer at a later stage, namely after taking cognizance of the offence in cases exclusively triable by the Sessions Judge. It is the contention of the learned senior counsel that the poor complainant may not have the resources to collect the evidence required by the court for effective prosecution of the accused to get the accused convicted and such complainant shall be handicapped as he is deprived of the case being investigated by the State missionary when he is not equipped with the facilities available to the state investigating agency. The said submissions made by the learned counsel for the petitioners cannot be brushed aside as having no substance in it. When a de-facto complainant giving information to the police regarding commission of an offence exclusively triable by a court of Sessions is left with the job of collecting and producing evidence in proof of the allegations without the aid of the State investigating agency, the same, as rightly contended by the learned counsel, may result in miscarriage of justice. Therefore, this court comes to the conclusion that in all cases wherein the complaint discloses commission of an offence exclusively triable by a court of Session, the High Court in exercise of its inherent power under Section 482 Cr.P.C shall lean in favour of issuing a direction to the police to register a case.
26. The offences listed in Arokiya Marie’s case as heinous crimes regarding which a direction can be issued under Section 482 Cr.P.C to register a case in order to ensure that the evidence of such crime do not get erased by passage of time can be supplemented by other offences of grave nature and the offences exclusively triable by the court of sessions. In such cases also the High Court under Section 482 Cr.P.C shall exercise its discretion under Section 482 Cr.P.C to issue a direction for registration of a case. In other cases, the High Court shall not issue a positive direction to register cases. The same does not mean that the police can simply keep quiet. Even in cases wherein the complaint discloses the commission of non-cognizable offences alone, the police officer who is receiving the complaint cannot simply keep such a complaint without following the procedure prescribed under Section 155 of the Cr.P.C. Section 155 Cr.P.C reads as follows:-
155. Information as to non-cognizable cases and investigation of such cases. – (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
27. As per sub-section (2) of Section 155, no police officer can investigate a non-cognizable offence without the order of the Magistrate having power to try such case or commit the case for trial. But taking umbrage under the said clause, the police officer cannot be allowed to remain inactive without following the procedure prescribed in Section 155 Cr.P.C. Sub-clause (1) of Section 155 Cr.P.C enjoins a duty on the police officer in-charge of a police station who receives information regarding commission of a non-cognizable, within the limits of such station to enter such information in a book kept for that purpose and refer the informant to the Magistrate. The section mandates the police officer in charge of the police station to refer the informant and not the information alone to the Magistrate concerned. Experience has shown that in all cases wherein the police are of the view that the offences made out are non-cognizable, they think that they need not register a case and need not refer the informant to the Magistrate concerned. It is to be noted that Section 155 Cr.P.C does not prohibit registration of a case if the averment discloses the commission of a non-cognizable offence alone. What is prohibited is to investigate the same without obtaining the order of the Magistrate. By the omission on the part of the police to refer the informant to the Magistrate concerned if such police officer is of the view that the complaint discloses only a non-cognizable offence, the procedure prescribed in sub-section (1) of Section 155 is being made a dead letter in practice. The said practice, according to the considered view of this court, will amount to miscarriage of justice, which has got to be remedied by issuing suitable directions in this regard to the police officer concerned in exercise of this court’s inherent power under Section 482 Cr.P.C.
28. Therefore, this court deems it fit to classify the cases into cases in which a direction to register a case could be granted and cases in which such a direction cannot be granted. In the second category of cases, instead of directing the police to register a case, it shall be just and appropriate to issue a direction to the police officer concerned to register a case if he comes to the conclusion that a cognizable offence has been made out by the contents of the complaint or to refer the informant to the Magistrate concerned as per Section 155(1) Cr.P.C if he comes to the conclusion that the information (complaint) discloses only a non-cognisable offence. Apart from the above said two classes of cases in which different directions are to be issued, there are other cases which have been got to be closed, after recording the submissions made on behalf of the respondent that FIRs have been registered on the basis of the complaint concerned in such petitions.
29. In view of the foregoing discussions, it is ordered as follows:-
i) A direction is issued to the respondent police in each one of the following cases to register a case based on the complaint preferred therein and investigate the same:- Crl.O.P.Nos.5538, 6639, 7842, 10548, 7657, 11105 and 11154 of 2009.
ii) The following petitions are closed after recording the statement of Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) that FIRs have been registered in all those cases.
Crl.O.P.Nos.5739, 6300, 6304, 6941, 7785, 7996, 8231, 8739, 8787, 9055, 10681, 11287, 11425, 11469, 11471, 11675, 11949, 12008, 12268, 12441, 12445 and 12446 of 2009.
iii) The Station House Officer in each one of the following cases is directed to either to register a case, if he comes to the conclusion that a cognizable case has been made out by the contents of the complaint or to refer the informant to the Magistrate as per Section 155(1) Cr.P.C, if the complaint discloses commission of non-cognizable offence/non-cognizable offences alone and in case the Station House Officer comes to the conclusion that no offence has been made out either cognizable or non-cognizable, he can close the complaint and inform the informant of the fact of such closure:- Crl.O.P.No.5368, 5390, 5498, 5558, 5560, 5572, 5836, 6034, 6219, 6220, 6221, 6225, 6284, 6286, 6289, 6299, 6301, 6373, 6399, 6400, 6549, 6714, 6897, 6999, 7096, 7098, 7433, 7469, 7820, 7938, 8016, 8048, 8108, 8109, 3621, 8110, 8122, 8366, 8370, 8732, 8844, 8874, 8928, 8930, 8951, 9054, 9112, 9172, 9371, 9464, 9578, 9903, 9919, 9929, 10278, 10339, 10567, 10680, 10774, 10952, 10953, 10998, 2792, 7897, 7904, 11013, 11153, 11156, 11196, 11235, 11320, 11339, 11407, 11489, 11490, 11573, 11678, 11779, 11860, 11873, 11877, 11948, 12084, 12113, 12186, 12199, 12236, 12269, 12279, 12369, 12457, 12458 and 5504 of 2009
The above said direction shall be complied with within two weeks from the date of receipt of a copy of this order. The learned Government Advocate (Crl.Side) representing the respondents shall be provided with a copy of this order, who in turn, will communicate the same to all the respondents herein.
30. In the result, these criminal original petitions are disposed of with the above direction. Consequently, all connected MPs are closed.
asr
To
1.The Commissioner of Police
Coimbatore City
Coimbatore
2.The Inspector of Police
B.15, Gandhipuram Police Station
Coimbatore
3. The Public Prosecutor
High Court
Madras 600 104
MADRAS HIGH COURT