Madras High Court
M/S.Vetri Medical Agency vs State Rep. By Inspector Of Police on 3 December, 2013
Author: P.Devadass
Bench: P.Devadass
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2013
CORAM:
THE HON'BLE MR.JUSTICE P.DEVADASS
Crl.O.P. No.31086 of 2013
M/s.Vetri Medical Agency
Rep. by P.L.Veerappan,
N0.9/1, 70th Street,
Venkataraman Nagar,
Korattur, Chennai-600 080 ... Petitioner
Vs.
State rep. by Inspector of Police,
T-3,Korattur Police Station,
Korattur, Chennai-80. ... Respondents
Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to direct the respondent to register a case on the basis of the Complaint of the petitioner, dated 27.05.2013.
***
For Petitioner : Mr.M.Santhanaraman
For Respondents: Mr.C.Emalias
Additional Public Prosecutor
O R D E R
P.L.Veerappan of Vetri Medical Agencies, in Korattur, Chennai, under Section 482 Cr.P.C., seeks issuance of direction to the respondent, namely, the Inspector of Police, T-3, Korattur Police Station, Korattur, Chennai to register a case based on his complaint dated 27.05.2013 and investigate it.
2. According to Mr.M.Santhanaraman, the learned counsel for the petitioner, Balaji and Ranjith, who were employed as Bill Clerk and Sale man respectively in Vetri Medical Agencies in connivance with one Yobu, misappropriated Rs.10 lakhs. The learned counsel submitted that they have committed cognizable offences, a complaint also has been lodged with the police as early as on 27.5.2013, but, no action has been taken.
3. Mr.C.Emalias, the learned Additional Public prosecutor submitted that the complaint has been received by the police and further action is being taken.
4. I have anxiously considered the arguments of both sides and perused the allegations in the complaint and the averments in the petition.
5. There are frequent complaints to this Court by way of petitions under Section 482 Cr.P.C. that police is not taking prompt action on the complaints alleging commission of cognizable offences. At the same time, there are frequent petitions to this Court under Section 482 Cr.P.C. that what was alleged in the complaint is not cognizable offences, but, purely civil disputes and business disputes, which have been converted as criminal cases and are persecutions and not prosecutions, thus, quashing of those proceedings have been sought for.
6. There were frequent complaints of commission of matrimonial offences, as against husband, in-laws and as against entire family. Some times false cases also. Inept handling of the same by the police results in ruining the life of young couples and the worst sufferers are innocent children. In fact, in a way, police stations have also become feeding centres for cases being filed in the Family Courts and the Matrimonial Courts.
7. Political opponents, persons eyeing on high offices and Public Offices gunning on their possible rivals by lodging false complaints. There were indiscriminate registration of cases, even when they do not disclose cognizable offences. Consequently, there are human right violations. There are many genuine complaints of misuse of public offices and public money, but, some times inertia on the part of the police to take quick action emboldens the criminals to freely roam with impunity and repeat similar crimes. The casualty is cause of justice. The Administration of Criminal Justice and Criminal Justice System itself is being ridiculed.
8. Timely action by police will bring the criminals and would be offenders under control and it will boost the image of the police in the eye of public. There are ample provisions and guidance for them in the Code of Criminal Procedure, 1973. But, in many cases, either knowingly or unknowingly they were not being adhered to resulting in people thronging this Court by way of petitions under Section 482 Cr.P.C. for direction to police to perform their statutory duty.
9. For the purpose of administration of criminal justice, offences are classified as 'cognizable offences', 'cognizable cases'(See Section 2(c) Cr.P.C) and 'non cognizable offences' and 'non cognizable cases'.(See Section 2(l) Cr.P.C.). Offences, as such, are defined in the General Penal Law of India [I.P.C] and also in some other enactments. Schedule- I to the Code of Criminal Procedure classifies the offences under the Penal Code as cognizable offences and non-cognizable offences. Other enactments containing penal provisions also so classify the offences. With regard to a cognizable offence, a police officer may arrest the accused without a warrant. But, in case of a non-cognizable offence, a police officer cannot arrest the accused without a warrant.
10. Section 154 Cr.P.C. mandates entering of every information containing commission of cognizable offences in a prescribed book. It is commonly known as registration of F.I.R. 'All informations are not First Informations'. Informations which disclose commission of cognizable offences alone are 'First Information'. A mere rumour or an hoax will not be first information. For the purpose of taking action under Section 154 Cr.P.C., the most important requirement is that the information must disclose commission of a cognizable offence. Registration of F.I.R. sets the criminal law in motion. If the information discloses a non-cognizable offence, no FIR need be registered. In such cases, as per Section 155 Cr.P.C., the police officer has to seek the permission of the Magistrate to take further action.
11. Chapter-XII of the Code Criminal Procedure consisting of Sections 154 to 176 Cr.P.C. deals with the powers and duties of the police to deal with the FIRs. It also deal with their power to investigate the offence/crime reported by the informant/ complainant/ defacto complainant. As per Section 2(h) Cr.P.C. investigation includes all the proceedings taken by the police to collect evidence. Thus, investigation is 'collection of evidence'.
12. How to go about investigation and the procedure, a police officer has to follow have been indicated in Section 157 Cr.P.C. (See also Sections 160, 161,162 Cr.P.C.).
13. Investigation arises, when a cognizable offence is registered under Section 154 Cr.P.C. Once an F.I.R. is registered, the Police Officer gets the power of investigation.(See Section 156(1) Cr.P.C.). Some times, when a police officer has credible information that a cognizable offence has been committed even without a complaint from a person, he can register an F.I.R. and investigate it.(See Section 157(1) Cr.P.C.).
14. Long ago, in KING EMPEROR Vs. KHWAJA NAZIR AHAMED [AIR 1945 PC 18], the Privy Council held that, in India, the process of investigation is the province of police. This has also been reiterated by the Hon'ble Apex Court in STATE OF BIHAR Vs. J.A.C. SALDANHA [1980(1)SCC 554] and in the celebrated STATE OF HARYANA AND OTHERS Vs. BHAJAN LAL AND OTHERS [1992 Supp (1) SCC 335].
15. But, even in KHWAJA NAZIR AHAMED(supra), it was held that the police can investigate only when there is an offence muchless a cognizable offence. When the information to police does not disclose commission of a cognizable offence question of registering an F.I.R. will not arise at all. For instance, when the information contains purely a civil dispute, there is no need or occasion for the police to investigate/probe. (See: MADHAVARAO JIWAJI RAO SCINDIA Vs. SAMBHAJIRAO CHANDROJIROA ANGRE [1988(1)SCC 692 also see BHAJANLAL (supra)].
16. When a complaint as to the commission of a cognizable offence is presented to a police officer and he does not register an F.I.R. then on petition, the Superintendent of Police can direct his subordinate to register F.I.R. and investigate.[See: Section 154(3) Cr.P.C.]. When no action has been taken by the police on the complaint presented to them, a private complaint can be presented to the Magistrate.[See: Section 200 Cr.P.C]. Under Section 156(3) Cr.P.C., the learned Magistrate can direct the police to undertake investigation. It becomes a police case. It is an instance of a private case becoming a police case. Actually a direction under Section 156(3) Cr.P.C. is a reminder to the police to do their job as enjoined upon them under Section 156(1) Cr.P.C. The condition precedent to do so is registration of F.I.R. The said power of the learned Magistrate under Section 156(3) Cr.P.C. is analogous to the power of a Superintendent of Police under Section 154(3) Cr.P.C. [See SAKRIVAS Vs. STATE OF U.P.& OTHERS, (AIR 2008 SC 907)]
17. When a complaint containing allegations as to the commission of cognizable offence is presented to the learned Magistrate under Section 200 Cr.P.C. the learned Magistrate may record the sworn statement of the complainant and his witnesses and on consideration, if he finds a prima facie case of commission of an offence, he shall take cognizance of it under Section 190(1)(a) Cr.P.C. and issue summons to the accused under Section 204 Cr.P.C. Without doing so, namely, recording the sworn statement of the complainant and his witnesses, the learned Magistrate may also direct the police under Section 156(3) Cr.P.C. to register F.I.R. and investigate. But, under Section 156(3) Cr.P.C., the learned Magistrate cannot mechanically direct the police to register FIR and undertake investigation. [See MAKSUD SAIYED Vs. STATE OF GUJARAT & OTHERS, 2008(5) SCC 668]. Even to issue a direction under Section 156(3) Cr.P.C. the complaint must disclose commission of a cognizable offence. The learned Magistrate may also enquire the complainant, record his sworn statement and in order to find out any sufficient ground to proceed further, under Section 201(1) Cr.P.C., he can direct the police to investigate and call for a report and after considering the same, he can proceed further. [See ANJU CHAUDHARY Vs. STATE OF U.P. & ANOTHER (2013 (6) SCC 384].
18. Investigation into commission of a cognizable offence commenced by registering an F.I.R. under Section 154 Cr.P.C. is concluded by the police submitting their (final) (police) report on the evidence collected by them to the Court either positively as to offences, which were appears to have been committed or negatively that it does not disclose an offence, such as 'mistake of fact' 'mistake of law', 'accidental fire', 'civil case' etc.[See: Section 173 Cr.P.C.]. Thereafter, the police may wash of their hands but not the learned Magistrate. The learned Magistrate has to consider such report and proceed further in accordance with law.[See ABHINANDAN JHA & OTHERS Vs. DINESH MISHRA(AIR 1968 SC 117)].
19. There was controversy as to the role of police in registering F.I.R. One view was that when a complaint containing information as to commission of cognizable offence is presented to a police officer, he has no option except to register a case/FIR under Section 154 Cr.P.C. and proceed to investigate. Another view was that straightway police need not register FIR, they can verify the contents of the complaint as to whether it discloses commission of any cognizable offence and only upon such verification and satisfaction, police can register F.I.R. and investigate.
20. A three-Judge Bench of the Hon'ble Supreme Court referred this controversy to a five-Judge Constitutional Bench of the Hon'ble Supreme Court. On 12.11.2013, in LALIT KUMARI Vs. GOVT. OF U.P. AND OTHERS, [W.P.(Crl.)No.68 of 2008], the Constitutional Bench headed by Hon'ble the Chief Justice of India, considered both the views as to the registration of FIR, issues concerning liberty of the individual, power and duty of the police in taking action on the complaints presented to them and issued the following directions:-
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
21. Now, on the aspect of registration of F.I.R., the law laid down by the Hon'ble Supreme Court in LALITA KUMARI (supra) has become the law of the land. Every one, every Court, every Police and every authority is bound to follow the directions issued by the Hon'ble Supreme Court in the matter of taking action on the complaints presented to them.
22. In this backdrop of the matter, now, we shall revert back to the case at our hand.
23. A perusal of the allegations in the complaint presented by Veerappan/the petitioner discloses commission of cognizable offence by certain persons named in his complaint dated 27.5.2013. As per the dictum of the Hon'ble Supreme Court in LALITA KUMARI (supra), the police is bound to register a case/FIR under Section 154 Cr.P.C., investigate it and inform the result of the same to the concerned court by way of a report.
24. In view of the foregoings, the respondent, namely, the Inspector of Police, T-3, Korattur Police Station, Korattur, Chennai, is directed to register a case, based on the complaint of the petitioner, namely, P.L.Veerappan of Verti Medical Agency, dated 27.5.2013, investigate it in accordance with law and file the final report before the concerned Court at an early date.
25. Accordingly, this Criminal Original Petition is disposed of.
26. A copy of this Judgment shall be sent to the Principal Secretary to Government, Home Department, Secretariat, Fort St. George, Chennai-9, the Director-General of Police, Mylapore, Chennai-4, the Home Secretary, Union Territory of Puducherry, Chief Secretariat, Puducherry and the Inspector-General of Police, Police Head Quarters, Beach Road, Puducherry for being circulated to all the police stations and various special police units to follow the directions of the Constitutional Bench of the Hon'ble Supreme Court of India issued in Writ Petition (Criminal)No.68 of 2008 on 12.11.2013. [LALITA KUMARI Vs. GOVT. OF U.P. AND OTHERS].
03.12.2013 Index: Yes/No Website: Yes/No rrg To
1.The Inspector of Police, T-3,Korattur Police Station, Korattur, Chennai-80.
2.The Public Prosecutor, High Court, Madras.
3.The Public Prosecutor, Union Territory of Puducherry, High Court, Madras.
Note: As this Judgment contains guidance on an important aspect of criminal law based on the directions of a Constitutional Bench of the Hon'ble Supreme Court of India, the Registry is directed to place the same before My Lord, the Hon'ble Chief Justice for orders to circulate the same to all the Subordinate Courts in the State of Tamilnadu and in the Union Territory of Puducherry.
P.DEVADASS, J.
rrg Crl.O.P. No.31086 of 2013 03.12.2013