Central Administrative Tribunal - Delhi
Vimal Kumar (Inspector) No.D-1/104 vs Commissioner Of Police on 28 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3065/2009 with Original Application No.3078/2009 This the 28th day of April, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) O.A. No.3065/2009 Vimal Kumar (Inspector) No.D-1/1041 S/O G. K. Rathi, R/O A-61, Sector-12, Noida, U.P. Applicant ( By Shri S. C. Sagar, Advocate ) Versus Commissioner of Police, Police Headquarter, I.P.Estate, New Delhi. Respondent (By Shri Chander Mani Bhardwaj for Mrs. Rashmi Chopra, Adv.) O.A. No.3078/2009 Mahipal Singh (ASI) No.2631/SD S/O Shish Pal Singh, R/O E-50, Gali No.2, East Vinod Nagar, Delhi-110091. Applicant ( By Shri S. C. Sagar, Advocate ) Versus Commissioner of Police, Police Headquarter, I.P.Estate, New Delhi. Respondent ( By Shri H. K. Gangwani, Advocate ) O R D E R Justice V. K. Bali, Chairman:
By this common order, we propose to dispose of two connected Original Applications bearing OA Nos.3065/2009 and 3078/2009, as common questions of law and facts are involved in both cases. Learned counsel representing the parties would also suggest likewise.
2. Sequel to a regular departmental enquiry common to both the applicants, they have been inflicted the punishment of censure vide order dated 14.1.2009 passed by Addl. Commissioner of Police (Security), which has since been confirmed by Commissioner of Police, Delhi in the appeals preferred by the applicants, vide order dated 10.9.2009. The applicants seek setting aside of the orders referred to above.
3. The enquiry officer after recording statements of Const. Lakhan Singh (PW-1), HC Rajinder Kumar (PW-2), HC Sanjeev Kumar (PW-3), SI Daya Nand (PW-4), Avdesh Mittal (PW-5) and V. P. Singh, ACP/Kalkaji (PW-6), framed the following charge against the applicants:
Inspr. Vimal Kumar, No.D-I/1041, the then SHO/C.R. Park and ASI Mahipal Singh No.2631/SD that one Mr. Avdesh Mittal R/o S-359 (Ground Floor), Greater Kailash Part-II, New Delhi made a complaint on 05.04.2005 to SHO/C.R. Park stating therein that on 17th January, 2005 he had gone to Australia and left two servants namely Niranjan and Rakes with the keys of back courtyard along with the dog to look after. On his return from Australia on 04.03.2005 he found that two servants had left his house and decamped with electric items like two mobile phones, one DVD player, one stereo system and one Sony T.V. and other valuables from his residence. He had requested the SHO/C.R. Park to register a case and investigate the matter.
Further, the complaint was initially marked by the SHO to ASI Daya Nand vide diary No. LC-113/C.R. Park dated 05.04.2005. But ASI Daya Nand proceeded on transfer to P.S./H.N. Din on 11.04.2005 vide D.D. No.42-B, P.S. C. R. Park and handed over the pending complaint to the delinquent ASI Mahipal Singh, No.2631/SD, who visited the residence of the complainant on 14.04.2005, the complainant had stated that he would produce the invoices of some of the items, which he had purchased from Dubai after his next trip. Further, the bills of the Mobile instruments purchased locally will be supplied in due course of time. Further more, he requested to the delinquent Inspr. Vimal Kumar No.D-I/1041, SHO/C.R. Park to depute some one to nab the culprits.
The delinquent ASI Mahipal Singh, No.2631/SD did not register a case on the complaint, which is cognizable in nature and unnecessarily demanded invoices and bills of stolen articles before registration of case. This is gross violation of Section 154 of CrPC as well as Standing Order No.145, regarding fair and prompt registration of cases. The delinquent Inspr. Vimal Kumar, No.D-I/1041, the then SHO/C.R. Park is also responsible for inaction on the complaint by his subordinate staff, which amounts to lack of supervision over the functioning of Police Station. The applicants were afforded opportunity to lead evidence in their defence, which they availed by examining Const. Yashvir as DW-1. After discussing the evidence, the enquiry officer concluded that the charge against the applicants stood proved. It would be seen from the report of the enquiry officer that whereas, one of the pleas raised by the applicants was that the complaint made by Avdesh Mittal, PW-5, was false and he only wanted to pressurize the police so that the police could nab/arrest his servants who had left his residence without his consent and left the pet dog to suffer, the other was that the complainant had not provided any bills/invoices or IMEI number of the mobile instrument and, therefore, the FIR could not be registered as per Standing Order No.145 issued by the police department itself. Some other pleas were also raised, but it may not be necessary to make a mention of the same at this stage. The enquiry officer repelled the two-fold defence projected by the applicants based on the pleas referred to above, by observing as follows:
.These are not justified grounds to refuse to lodge an FIR. Section 154 Cr.PC clearly mandates that whenever information about cognizable offence is received in the police station, SHO is duty bound to lodge an FIR. As such FIR cannot be denied simply on the ground that details such as bills/invoices, IMEI number etc. were not provided by the complainant in the complaint. These details could certainly be obtained later on. Whether the complaint was false or genuine could be ascertained only after conducting proper investigation and not before than. By presuming on the part of the defaulters that complaint was false, they were definitely on the wrong side of the legal interpretations.
It may be worthwhile to mention here that PW-6 the then ACP V.P. Singh who had conducted the enquiry and submitted his report as per exhibit PW-6/A has categorically stated that the record was searched but no FIR was lodged in respect of the complaint of PW-5. Later on it was learnt that in fact the complaints given by him were kept pending enquiry and no FIR was lodged. It would be interesting to know that he conducted the enquiry as per exhibit PW-6/A in connection with double murder case of Sun Light Colony in which the alleged servants of Avdesh Mittal were found to be involved as per their disclosure that they had committed thefts at the residence of Avdesh Mittal and on further enquiry this matter was disclosed.
Complainant was aggrieved because his servants had not only left the house and abandoned the pet dog and also decamped with certain valuables from the house/servant quarter but he was more so aggrieved because of the breach of relationship of the trust between the master and the servant as the servants decamped with the stolen articles and it certainly amounted to an offence u/s 380/408 IPC.
4. One aspect of the case which will need pertinent mention is that even though, the complaint of Avdesh Mittal was made on 5.4.2005, but no FIR has been registered with regard to the same till date. We may refer to the finding recorded in that regard by the enquiry officer, which reads thus:
However, it is interesting to note that in this case, no FIR regarding theft of the articles of the complainant PW-5 has been lodged till the enquiry was under process as deposed by PW-6 ACP V.P.Singh despite the fact came into the notice of senior officers including the ACP and senior officials of the district. The record further bears out that no FIR has been registered till date. It would appear from the report of the enquiry officer that the two-fold pleas raised by the applicants, as mentioned above, were rejected on the solitary ground that theft was a cognizable offence and under law the applicant had to register an FIR irrespective of its correctness or reliability. The defence projected by the applicants on the pleas as referred to above has been rejected by the disciplinary and appellate authorities on the same grounds as was done by the enquiry officer. The disciplinary authority, while rejecting the plea of the applicants, observed as follows:
The plea of the delinquents that the complainant failed to provide the details i.e., invoices/bills, number of mobile phones and similar details pertaining to other stolen articles is not a justified ground for non-registration of FIR. Section 154 Cr.PC clearly mandates that whenever information about cognizable offence is received in the Police Station, SHO is duty bound to register the FIR. The FIR cannot be denied simply on the ground that bill/invoices, mobile number etc. were not provided by the complainant in the complaint. These details could certainly be obtained later on. Whether the complaint was false or genuine, it could be ascertained only after conducting proper investigation and not before that. No doubt in para 10(ii)(b) on property offences of S.O. No.145, it has been mentioned that in all property offences, a correct description of the property stolen should be recorded but the Enquiry Officer in his finding has well discussed that the details of the property could be given in the FIR as far as possible but these instructions are only guiding factor for the police officers and are not mandatory in nature and they cannot substitute the provisions mentioned in Section 154 Cr.PC. The appellate authority while rejecting the plea raised by the applicants, observed as follow:
They have taken the plea that no case was registered as complaint was vague, phone number of complainant was not given and no proof of ownership of articles alleged to be stolen was provided by the complainant despite requests. I see nothing vague in the complaint (Ex.PW-4/A). Proof of ownership is a secondary issue which could have been looked into during the investigation of case subsequent to registration; after all how many persons preserve receipts of all articles they purchase? Where proof of ownership is relevant, at the appropriate stage, there are other methods such as TIP etc. this is a clear instance of non registration of the case and the pleas taken are simply devoid of merits or jurisdiction. There is no reason to interfere in the punishment awarded. Under the circumstances, the appeals of the appellants are rejected.
5. It is no doubt true, in number of decisions it has been held by the Apex Court that when information is received by a police officer which discloses cognizable offence, FIR has to be registered. Reference in this connection may be made to the judgments of the Honble Supreme Court in Madhubala v Suresh Kumar & Others (1997) 8 SCC 476, and Ramesh Kumari v State (NCT of Delhi) & Others, (2006) 2 SCC 677. In a later decision in Rajender Singh Katoch v Chandigarh Administration & Others, 2008 [1] JCC 246, however, it has been held by the Supreme Court that although officer in-charge of a police station is legally bound to register a case when the facts may disclose commission of cognizable offence, that by itself would not take away the right of the competent officer to make preliminary enquiry in a given case before registering the case, in order to find out as to whether the FIR sought to be lodged had any substance or not. Automatic registration of FIR when it may disclose commission of cognizable offence, howsoever false or frivolous a complaint may appear to be, is not the requirement of law any more. No doubt, on disclosure of cognizable offence FIR has to be registered, but when on the face of the complaint there may appear to be cogent reasons or grounds that it may be false or frivolous, a preliminary enquiry before registration of the case is not ruled out. It can well be said that registration of FIR on disclosure of cognizable offence is a rule, but it may have some exceptions as well.
6. Keeping in view the observations of the Honble Supreme Court in Rajender Singh Katoch (supra), we may refer to the complaint dated 5.4.2005 of Avdesh Mittal. The same reads as follows:
I had left the country on 17th January 2005 for Australia, leaving my two servants Niranjan and Rakesh with the keys of the back courtyard along with the dog to look after it. We had returned on 4th March 2005 and found out that they had run away leaving the keys with the servant of 1st Floor and have stolen, two mobile phones, one DVD player, one stereo system and one Sony T.V. (things we have come to know till now) we had gone back on 13th March 2005 and have returned on 1st April 2005 since our previous visit we had stayed only for two days in Delhi therefore the complaint could not be made at that time.
One of the Drivers of our friend is a neighbour of the servants in their native town who is a witness about their possessing the items.
We request you for arrange for investigation and to nab the culprits. Avdesh Mittal had left the country on 17.1.2005 for Australia and had returned on 4.3.2005. He had found out that day that his two servants had run away leaving the keys with the servant of the first floor and had stolen two mobile phones, one DVD player, one stereo system and a Sony TV, which, somehow, it is stated in the complaint that he had come to know now, i.e., when he lodged the complaint. He had gone back on 13.3.2005 and returned on 1.4.2005. When he came back on 4.3.2005 he had only stayed for two days in Delhi, and, therefore, it is stated that the complaint could not be made at that time. Avdesh Mittal examined as PW-5, when asked in his cross examination as to why he had given the complaint after one month of his return, he stated that he reported the theft on 5.4.2005 as he returned on 2.4.2005 from New Zealand, and that between 4.3.2005 and 13.5.2005 he was in Delhi and left for Mussoori to drop his children there, and could not get to know as to what exactly had been stolen from his house. To another question he told that he had found the window of a room broken. He admitted that he had not produced any receipt or bills of any articles which had been stolen. It is admitted position that the applicant Mahipal Singh had made enquiries with regard to the theft complaint. He had gone to the house of the complainant, contacted him and demanded from him bills/invoices of the stolen articles. The complainant could produce nothing whatsoever, nor even the numbers of mobile phones. The very contents of the complaint may appear to be, at least prima facie, suspicious, inasmuch as even though, the complainant remained in India for quite some time, found his servants missing and the window of his room broken, he would go to Mussoori, stay there for 15 days, then go to New Zealand and on his coming back from New Zealand, would lodge the complaint. He was unable to produce any documents with regard to stolen items. Till date, no FIR in the matter has been registered nor is it even the case of the complainant or the department that he was able to furnish any proof of ownership of the stolen articles at any given time. It may be recalled that the defence projected by the applicants is that the complainant only wanted his servants to be brought to Delhi and given them beatings so that the other servants may have a lesson that they could not leave in his absence in the way and manner the two servants had done. Existence of Standing Order No.145 is not in dispute. The same has been placed on records, which contains instructions with regard to registration of FIRs. Insofar as, thefts are concerned, the details of the FIR have to mention, as may appear from para 10(ii)(b) that in all property offences, a correct description of the property stolen should be recorded, and the details should be (i) the description of the property, (ii) its size, (iii) weight, (iv) from whom purchased, (v) from whom got made, (vi) how long it has been in possession of the aggrieved person, and (vii) identifying marks including damage etc. One of the applicants had gone to the house of the complainant, contacted him and wanted to know some details of the stolen property, but the complainant could provide none; he has not provided the details till date. In the facts and circumstances as mentioned above, the plea raised by the applicants that some enquiry was required to be conducted before FIR could be registered, had to be gone into, but the same was shut only on the ground that whatever be the contents of the complaint, FIR has to be registered, and even if on the face of it or prima facie the allegations made in the complaint may appear to be unreasonable or incorrect, the FIR still has to be registered. That, as mentioned above, does not appear to be the law of universal application.
7. In the facts and circumstances of this case, we set aside the impugned orders dated 14.1.2009 and 10.9.2009 passed by the disciplinary and appellate authorities respectively, and remit the matter to the disciplinary authority to re-examine the issue in the light of observations made above. Nothing stated in the present order shall be construed as an expression of opinion with regard to authenticity of the complaint made by Avdesh Mittal. The disciplinary authority would be free to take its view. What we have observed above is only with a view to decide the present Original Application. All that we are saying is that the defence projected by the applicants that the contents of the complaint appeared to be incorrect and required some enquiry before registration of FIR, had to be gone into. The same has been shut, as mentioned above, only on the ground that whatever be the contents of the complaint which may disclose commission of cognizable offence, the applicants had no choice but for to register the FIR.
8. This Application is disposed of in view of the observations/directions made hereinabove. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/