Delhi District Court
Criminal Revision No. 33/08 1 Sanjiv ... vs Jaffruddin on 7 July, 2008
Criminal Revision No. 33/08 1 Sanjiv Solanki Vs Jaffruddin
Criminal Revision No. 58/08 State Vs Jaffruddin
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Criminal Revision No. 33/08
Sanjiv Solanki
S/o Sh. Mahender Singh
R/o J144, Ground Floor,
Saket, New Delhi 110017. .....Revisionist
Versus
1. Jaffruddin
S/o Sh. Razia
R/o (Kharak) Chandan Hulla,
New Delhi - 110074.
2. The State (Govt. of Nct of Delhi) .....Respondents
Criminal Revision No. 52/08
State (NCT of Delhi)
Through Sr. P. P. .....Revisionist
Versus
Jaffruddin
S/o Sh. Razia
R/o (Kharak) Chandan Hulla,
New Delhi - 110074. .....Respondent
ORDER
1. By this order I shall dispose of two revision petitions Criminal Revision No. 33/08 2 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin directed against the order dated 10.3.2008 in complaint case no. 2733/1 of the year 2008 filed by Jaffruddin (Respondent herein) vide which Ld. Metropolitan Magistrate ordered registration of FIR against the revisionist.
2. The revisionist is a Sub Inspector posted as Chowki Incharge Bhati Mines PS Mehrauli. In the complaint it is alleged that on intervening night of 10/11th November 2007 the complainant was on duty as a forest guard and he received an information on telephone from his colleague that some trucks had illegally entered the limits of Forest Department with a view of commit theft and accordingly complainant/respondent was directed to watch them. It is alleged that when complainant was on his motorcycle within the limits of Chandan Hulla and Satbari, the revisionist along with his five associates stopped him, abused him and told him that those vehicles were being run under his directions and thereafter had also given him beatings. Therefore complainant was forcibly taken to police post Bhati Mines where also he was beaten by the revisionist and his associates and was illegally confined to a room and also robbed his mobile phone, gold ring and a cash in the sum of Rs.827/. When respondent/complainant did not reach his house, his brother visited police chowki, where revisionist demanded illegal gratification for release of the respondent. It is stated that only on payment of Rs.10,000/, the revisionist was released. He also get himself medically examined in AIIMS Hospital and thereafter the revisionist filed a criminal complaint in the court of Ld. Metropolitan Magistrate along with an application for directions to SHO to register FIR in the present case.
3. Ld. Metropolitan Magistrate noticed that the accused had given a complaint to Commissioner of Police, DCP and SHO PS Mehrauli as well as to a concerned officer of Forest Department in Criminal Revision No. 33/08 3 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin this regard. Therefore Ld. Metropolitan Magistrate sought a report from SHO PS Mehrauli. The SHO gave a detailed report that on the night intervening 10 and 11 of November 2007, there was special patrolling during night and patrolling party received an information about one Arif S/o Kabir wanted by the police in as many as 22 auto theft cases. SI Sanjiv Solanki (revisionist) went to the house of Arif and made certain inquiries. It is stated that the present complainant (respondent herein) reached there and shouting as to how police reached at the spot. He also started creating law and order problem taking benefit of which Arif absconded from the spot. In order to check the activities of Jaffruddin, he was detained under Section 65 D. P. Act at Police Post Bhati Mines vide which DD no. 18 was recorded. Later on Jaffruddin was released and handed over to his real brother Hassan Mohd.
4. SHO PS Mehrauli further stated in his report that at the time of his release neither Jaffruddin nor his brother made any complaint or express any grievance against the conduct of the local police. It is also stated that Jaffruddin was not on Government duty at that time but was very much present at the spot. SHO further stated that Jaffruddin was simply detained under Section 65 D. P. Act and neither he was beaten up nor his ring was taken.
5. In this report SHO stated that Jaffruddin got himself medically examined at AIIMS Hospital and gave the history of assault to the doctor in MLC but HC Suresh went to AIIMS Hospital to record the statement of Jaffruddin, he was not found in the casualty and this fact is specifically noted by him. It is stated that the Inquiry Officer made efforts to contact Jaffruddin but he tried to avoid to appear before him. SHO further filed the report that doctor has opined the injury in the MLC as "simple in nature"
and therefore no cognizable offence is made out. Criminal Revision No. 33/08 4 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin
6. Ld. Metropolitan Magistrate noted in his order sheet dated 15.1.2008 that ATR (Action taken report) has been filed. The order sheet dated 10.3.2008 vide which the impugned order was passed, Ld. Metropolitan Magistrate passed following impugned order, which is reproduced as under :
10/03/07 Present: Complainant with counsel.
Arguments were heard on the application U/s 156(3) CrPC. Complaint perused.
On the perusal of the complaint, the same discloses commission of cognizable offences. It has been held in Ramesh Kumari Vs. State 2006 I AD (CR) SC 505 that whenever any information discloses commission of cognizable offence, the FIR has to be registered.
It has been held in a case titled as Laxminarayan Gupta Vs. Commissioner of Police & Ors 2006 (2) JCC 1058 that genuineness of credibility of information is no condition precedent for registration of a case and police officers cannot embark upon an enquiry in regard to correctness or veracity of the facts / allegations disclosed from the information before registration of FIR.
Hence, SHO Police Station Mehrauli is directed to register FIR, and conduct investigation as per law. Copy of complaint along with copy of this order be sent to SHO Police Station Mehrauli for compliance.
Put up for status report on 29/05/08.
(V. K. Gautam) MM/ND 10/03/08
7. Against this order SI Sanjiv Solanki against whom the FIR was directed to be registered preferred a revision petition no.
33/08. The State also preferred revision petition no. 52/08 against the same order. Since both the revision petitions are directed against the same order, therefore both of these petitions are being disposed of by this order.
Criminal Revision No. 33/08 5 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin
8. It is argued by Ld. Additional Public Prosecutor that Ld. Metropolitan Magistrate did not take in consideration the report of the SHO which was sought by Ld. Metropolitan Magistrate himself. It is further argued that in the impugned order Ld. Metropolitan Magistrate has simply opined that a cognizable offence is disclosed. However although the SHO in his report has specified that it is a case of simple hurt only, and therefore the offence disclosed is a non cognizable one, Ld. Metropolitan Magistrate has not applied his mind as to how a cognizable offence is disclosed.
9. Sh. R. N. Sharma, adv. for revisionist SI Sanjiv Solanki has referred following authorities in his arguments :
1. Prof. Sumer Chand Vs Union of India & Ors. 1990 DLT 66
2. Ram Singh Vs S. S. Manan etc. 1990 Rajdhani Law Reporter, 199
3. Ram Parkash Vs State of Haryana 2000(2) C. C. Cases High Court 170
4. Abdul Wahaf Ansari Vs State of Bihar and Ors.
2000(III) AD Criminal SC 253.
5. Gori Shankar Parsad Vs State of Bihar 2000(II) AD Criminal SC 358
6. K. Prem Kumar Deputy Superintendent of Police Vs Rajangam 1997(3) Crime 165 Madras High Court
7. Dadam Chand Vs Ram Charan Singh Rahtode & Ors.
1998 Crime CrLJ 1506 MP HC
8. P. K. Pardhan Vs State of Sikkam 2001(3) RCR (Criminal) 835
10. I have perused all the authorities and I am of the opinion that the entire case of law refers to the stage of taking cognizance because Section 197 CrPC bars taking of cognizance by a court if the offence was committed by a public servant in discharge of his official duty. However the stage under Section 156(3) CrPC is Criminal Revision No. 33/08 6 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin precognizance stage and therefore none of the above stated authority is applicable.
11. Sh. M. K. Sharma, adv. for respondent argues that at least an offence under Section 342 IPC is disclosed and the same is a cognizable offence, therefore the order of registration of FIR passed by Ld. Metropolitan Magistrate does not suffer from any illegality.
12. I have considered the rival submissions. First of all this court is to see as to in what manner and with what procedure, the FIR is to be registered. Section 154(1) CrPC enjoins upon SHO to register FIR on receipt of every information relating to commission of cognizable offence. Ld. Metropolitan Magistrate is right in referring to Ramesh Kumari Vs State 2006 1 AD (CR) SC 505 wherein it was held that whenever any information discloses commission of cognizable offence, the FIR has to be registered. Ld. Metropolitan Magistrate has also referred to Laxminarayan Gupta Vs. Commissioner of Police & Ors. 2006 (2) JCC 1058 wherein it was held by the Supreme Court that genuineness or credibility of information is no condition precedent for registration of a case and police officers cannot embark upon an enquiry in regard to correctness or veracity of the facts/allegations disclosed from the information before registration of FIR.
13. The perusal of Section 154(1) CrPC and the above stated authorities it is clear that SHO cannot embark upon an inquiry as to the correctness of the allegations. However at the same time the SHO would not act mechanically in registration of the FIR. On one hand the registration of an FIR, where the cognizable offence is disclosed, is a right of first informant, at the same time a duty is cast upon the SHO to consider as to whether the offence is cognizable or not. Only when he is convinced that a cognizable offence is disclosed, he would register the FIR under Section 154(1) Criminal Revision No. 33/08 7 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin CrPC. In the present case the SHO has filed the report that as per his opinion it was a case of simple hurt which is a non cognizable offence. Regarding the detention, he has stated that the same was done under Section 65 of D. P. Act and that the detention was legal. There are also allegations of corruption i.e. payment of Rs.10,000/ to SI Sanjiv Solanki as well as robbery. These accusations have been denied. Ld. Metropolitan Magistrate should have considered the status report of SHO PS Mehrauli and he should have given a specific finding as to which of the cognizable offences have been disclosed. A few allegations in the present case pertain to Prevention of Corruption Act which are subject matter of the special courts under the said Act. Ld. Metropolitan Magistrate has also not spent a thought over it.
14. Further Section 154(1) CrPC states that SHO should receive an information of cognizable offence. Respondent Jaffruddin has not stated anywhere that he went to police station and made a written or oral complaint to SHO PS Mehrauli. Had SHO PS Mehrauli refused to register FIR, the respondent had another remedy i.e. sending the substance of such information in writing and by post to DCP. In the present case in para 9 of the complaint he has averred that he had made a detailed complaint to different authorities but no action has been taken. It is nowhere averred that he lodged a complaint with SHO PS Mehrauli and after his refusal, he sent the complaint under Section 154(3) CrPC to DCP. Although one photo copy of complaint addressed to Commissioner of Police with copies to Special C.P. Vigilance, DCP South, SHO PS Mehrauli etc. has been annexed and one photo copy of a sending report through fax is annexed but in absence of specific averments in the complaint, it cannot be said that respondent approached SHO PS Mehrauli and on his refusal he sent the information to concerned DCP by post.
Criminal Revision No. 33/08 8 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin
15. The Ld. Metropolitan Magistrate should not act mechanically but must satisfy himself on following points :
1. Whether the accusations leveled in the criminal complaint, any cognizable offence is disclosed and, if so, what cognizable offence has been disclosed?
2. Whether before coming to the court, the first informant has approached the SHO requesting him to register FIR and thereby has he complied with the requirement under Section 154(1) CrPC?
3. If the SHO has refused to register the FIR, did the first informant comply with the provision of Section 154(3) CrPC by sending the information to DCP?
4. If still the FIR has not been registered, the Metropolitan Magistrate should ask a report from the SHO or DCP about the reasons for non registration of FIR.
5. The Metropolitan Magistrate should consider those reasons and if he finds that the offence disclosed is a cognizable offence and the production of witnesses and collection of the evidence requires an investigation from a responsible police official and the complainant is not in a position to bring the evidence on record by summoning and examining the witnesses, Ld. Metropolitan Magistrate would be well within his rights and would also be fully justified in ordering registration of FIR.
16. In this regard I would like to refer to a recent authority of the Supreme Court Sakiri Vasu Vs State of U.P. & Ors. 2008 [1] JCC 113. In this authority Supreme Court held in para 11 as under :
11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Criminal Revision No. 33/08 9 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin Superintendent of Polie under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC, before the learned Magistrate concerned.
17. In Ms Skipper Beverages Pvt. Ltd. Vs State 92 (2001) DLT Page 217 Delhi High Court it was noted by Hon'ble Justice R. C. Chopra that order under Section 156(3) CrPC need not be passed by Magistrate in mechanical manner at the mere asking of complainant.
18. I therefore hold that neither the respondent Jaffruddin complied with the condition of Section 154(1) CrPC nor he complied with the condition under Section 154(3) CrPC nor Ld. Metropolitan Magistrate applied his mind to the fact and circumstances mentioned in the status report filed by SHO nor he noted as to which offences are cognizable ones. Therefore the order of registration of FIR by Ld. Metropolitan Magistrate is not sustainable in the eyes of law. I therefore set aside the impugned order.
19. However nothing stated herein shall prevent Ld. Metropolitan Magistrate in taking cognizance of the offences as per law, of course considering the facts and circumstances in reference to Section 197 CrPC.
Criminal Revision No. 33/08 10 Sanjiv Solanki Vs Jaffruddin Criminal Revision No. 58/08 State Vs Jaffruddin
20. Revision petitions are disposed of accordingly. The trial court record be returned to the concerned court with the copy of this order for 14.7.2008 upon which the respondent Jaffruddin shall appear before Ld. Metropolitan Magistrate, who shall proceed further in accordance with law.
Announced in the open court on 7.7.2008.
(VINOD KUMAR) Additional Sessions Judge Patiala House Courts New Delhi