Delhi District Court
Laxmi Devi vs State (Government Of Nct Of Delhi) on 1 August, 2022
IN THE COURT OF SHRI SANJEEV KUMAR- II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
Criminal Revision No. 86/2021
CNR No. DLCT01-004705-2021
Laxmi Devi
Wife of Shri Chandan Singh,
Resident of C-1-B, Jhuggi No.331,
Anna Nagar, I. P. Estate,
Indraprastha, New Delhi. .... Petitioner
Versus
1. State (Government of NCT of Delhi)
2. Afsar
3. Nazma
4. Sahil
5. Nikki
6. Monti
Respondent Nos. 2 to 6
Resident of: C-1B/234, Anna Nagar,
I.T.O., New Delhi. ....Respondents
Instituted on: 24.03.2021
Reserved on: 03.06.2022
Pronounced on: 01.08.2022
JUDGMENT
The revision petition under Section 397 read with Section 399 and 400 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') has been filed for setting aside the order dated 24.12.2020 (impugned order) passed by learned Metropolitan Magistrate, Central District, Tis Hazari Courts, Delhi whereby CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 1 application under section 156 (3) of the Cr.P.C. for registration of First Information Report (FIR) against the respondent numbers 2 to 6 herein for the offences under sections 307, 354, 378, 379, 442, 443, 450, 452, 506 and 509 of the Indian Penal Code, 1860 (in short 'I.P.C.') was dismissed.
Submissions
2. Mr. Paranjay Chopra, learned counsel appearing for the revisionist contended that learned Magistrate failed to take into account that in the month of May 2020, the entire country was in a lock down and everything was shut. The findings of the learned Magistrate that the revisionist herein has failed to substantiate the allegations with any cogent material on record and has further doubted the complaint on the ground that the medical examination of the father in law of the daughter of revisionist was not conducted and the complainant was duty bound to establish the assault with some cogent medical evidence are perverse and contrary to the law laid down by the Hon'ble Supreme Court in case of State of Haryana v. Bhajan Lal, 1990 (2) SCALE 1066.
3. Mr. Chopra contended further that the learned Magistrate has erred in replying upon the Action Taken Report (ATR) of the concerned police officer and on the fact that a Kalandra under sections 107 and 150 of the Cr.P.C. was registered by the police officials with regard to the alleged scuffle between the revisionist and the proposed accused persons. The purported kalandra was registered only after a period of one month to save the skin of police officials who did not register F.I.R. on the complaint of the CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 2 revisionist. The learned Magistrate further failed to take note of the fact that the kalandra as filed by the police admits the incident and hence the police officials were duty bound to register the F.I.R. and investigate the complaint of the revisionist. Even otherwise the proceedings under sections 107/151 of the Cr.P.C. cannot be a substitute to the mandatory obligation of the police officials to register the complaint alleging commission of a cognizable offence as FIR and investigate upon them.
4. Mr. Chopra submits further that the perusal of sections 154 and 161 of the Cr.P.C. would show or leave no shadow of doubt that an inquiry or investigation into an offence under section 354 of the I.P.C. could only be done by a female police official and hence the ATR as filed by the police in the present matter leaves no shadow of doubt that the police officers did not take any action upon the complaint of the revisionist nor did they conduct any inquiry or investigation as alleged.
5. Mr. Chopra submitted also that while rejecting the application under section 156 (3) of the Cr.P.C., the learned Magistrate has failed to take into account section 166A of the I.P.C. even though it was specifically cited and categorically mentioned in the said application which makes it mandatory for a police officer to register the complaint disclosing the commission of an offence against women and further makes the non registration a punishable offence. The division bench of Hon'ble Rajasthan High Court in the matter of Prahlad Sharma v. State of Rajasthan, 2016 (3) CDR 1089 (Raj), directed initiation of CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 3 action against the erring police officials and medical officials for violation of Section 166A and 166B of the I.P.C..
6. Mr. Chopra submitted also that to the utmost shock and surprise of the revisionist, when her daughter rushed to the police station and got a police constable, Namely, Dinesh, the said constable instead of registering the police complaint tried to become a mediator and brushed aside the complaint of the revisionist despite of the criminal acts committed by the accused persons which were visible to the said constable. Even in front of the police constable the accused persons kept on hurling abuses at the revisionist and her family members and called her son transgender and also said that the police cannot do anything against them as they routinely bribe the local police and have great approaches. The fact that the local police has not taken any action against the accused persons certainly corroborates the said facts in as much as despite the criminal law amendment act 2013 which mandates the police officers to take instant action against crime against women and their direct allegations of the cloths of the daughter of the complainant being torn by the accused persons being there the police did not even bother to register an FIR. The local police has not just ignored this fact but also failed to get a medical examination of the father-in-law of the daughter of the complainant whose head the accused person broke.
7. Mr. Chopra submitted further that the learned Magistrate further failed to take note of the fact that registration of F.I.R. in the present matter was necessary as a statement of the daughter of the revisionist needs to be recorded in terms of Section 164 of CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 4 the Cr.P.C. which cannot otherwise happen without registration of F.I.R.. The Cr.P.C. mandates recording of a statement under Section 164 of the Criminal Procedure Code.
8. Mr. Chopra submitted further also that the finding of the learned Magistrate that no custodial interrogation is required in the present case, is again perverse and deserves to be set aside on the sole ground that there are categorical allegations of theft and hence custodial interrogation might be needed to recover the stolen earrings of the revisionist.
9. Mr. Chopra submitted further also that the learned Magistrate further failed to take into account the Judgment of the Hon'ble Constitution Bench of the Supreme Court in the matter of Lalita Kumari v. State of U.P., Writ Petition (Criminal) No. 68 of 2008 decided on 12.11.2013 even through it was specially cited and categorically mentioned in the application under section 156(3) of the Cr.P.C.. Admittedly the learned Magistrate in impugned order has not disputed the fact that the complaint clearly disclosed the commission of cognizable offences and hence, learned Magistrate ought to have directed registration of F.I.R..
10. Mr. Chopra submitted further also that the reliance placed by the learned Magistrate on the decision of Skipper Beverages v. State, 2001 (92) DLT 217 is misconceived as the said decision is prior to Lalita Kumari (supra) and section 166A of the I.P.C. coming into force. The offence punishable under the said case were sections 380/420/467/468/471 and 120B of the I.P.C. and not Sections 307/354/378/379/442/443/450/453/506/509 of I.P.C.. Further, Skipper Beverages (supra) has not discussed CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 5 Bhajan Lal (supra) and hence cannot be considered to be good law.
11. Mr. Chopra submitted further also that clearly the decision of the learned Magistrate is in ignorance of the Law as laid down by the Hon'ble Supreme Court. This Court may be pleased to set aside the Judgment/Order dated 24.12.2020 and direct the concerned Police Officers to register a F.I.R. on the complaint of the revisionist. Mr Chopra in support of his contention, has relied upon other decisions which are Ramesh Kumari v. State (NCT of Delhi), [(2006) 2 SCC 677]; Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Limited & Others, (1997) 6 SCC 450 and Prahlad Sharma v. State of Rajasthan (supra).
12. Per contra, Mr. Balbir Singh, learned Additional Public Prosecutor for the state-respondent no. 1 has submitted that learned Metropolitan Magistrate has rightly dismissed the application. There is no plea in revision that action be taken against the police officers/S.H.O. who have not registered F.I.R. and therefore, no order for the offence under section 166A(c) of the Cr.P.C. can be passed against them. The proceedings under section 200 of the Cr.P.C. is still pending before learned Trial Court.
13. Mr. Rajesh vashishtha, learned counsel appearing for the respondent numbers 2 to 6 opposed the revision contending that allegations mentioned in the complainant are not mentioned in the Kalandra. As per Kalandra, there were only three persons. No single medical report of alleged injured persons filed by the CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 6 revisionist. No such incident as alleged by the revisionist is happened. There is no allegations in kalandra regarding girl and allegations regarding girl had been added later on. The police constable reached the spot and he found no such incident. This is a total false case and therefore revision is liable to be dismissed .
Facts of the case
14. The facts of the case as stated by the revisionist- complainant in the compaint filed before learned Metropolitan Magistrate are that on 19.05.2020, daughter of complainant- revisionist, namely, Kiran Kumari went to fetch water from the Government tap and accused persons/respondents, namely, Afsar, Sahil and Nikki also came there to fetch water. The accused/respondent Nikki started abusing the daughter of the complainant-revisionist and used words which are bound to hurt the modesty of any woman against which the daughter of the complainant showed resistance. Despite of the fact of the complainant's daughter showing resistance to the abubses and conduct of the accused persons, their misbehavior did not stop and accused Nikki torn the cloths of the complainant's daughter in a miserable condition. When the complainant stepped out of her house hearing the cries of her daughter, she saw that the accused i.e. Afsar's son, who is accused no.3 had called 20-25 people to assault/sexually assault the daughter of the complainant whose cloths, accused No.4 namely Nikki had already torn. When complainant came out hearing the cries of her daughter, accused no.2 who is the wife of Afsar, started assaulted her and during the assault forcibly took out and stole her gold earrings CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 7 which she was wearing. Thereafter, accused Afsar told his sons Sahil and Nikki and other unknown people to assault and kill complainant and her daughter so that they cannot file any complaint against them. The entire incident was captured by son of complainant on his mobile phone which can be produced as and when required during investigation. When father-in-law of daughter of complainant tried to interven to protect complainant and her daughter, the accused persons assaulted him and attacked him during which he sustained a life threatening injury on his head. These facts were brought to the notice to the local police having jurisdiction, however, no action was taken by them. The local police did not even bother to get the MLC conducted of the father in law of daughter of complainant.
15. When her daughter rushed to the police station and got a police constable, namely, Dinesh. The said constable instead of registering the police complaint tried to become a mediator and brushed aside the complaint of the complainant despite of the criminal acts conducted by the accused persons which were visible to the said constable. Even in front of the said police constable the accused persons kept on hurling abuses at the complainant and her family members and called her son (transgender) and also said that the police cannot do anything against them as they routinely bribe the local police and have great approaches. The fact that the local police has not taken any action against the accused persons certainly corroborates the said facts in as much as despite the criminal law amendment act 2013 which mandates the police officers to take instant action against CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 8 crime against women and their direct allegations of the cloths of the daughter of the complainant being torn by the accused persons being there the police did not even bother to register an FIR. The local police has not just ignored this fact but also failed to get a medical examination of the father-in-law of the daughter of the complainant whose head the accused person broke.
Analysis and Conclusion
16. In M/s Skipper Beverage Pvt. Ltd. v. State, 2002 Crl.L.J. NOC 333 (Delhi) and Gulab Chand Upadhyay v. State of UP & Ors., 2002 Crl.LJ 2907, it has been held that the powers under section 156(3) of the Cr.P.C. ought to be exercised judiciously and not in mechanical manner and can be exercised primarily in those cases where the allegations are quite serious or evidence is beyond that reach of the complainant or custodial interrogation appears to be necessary for recovery of some articles or discovery of facts and further in those cases where the allegations are not very serious and complainant himself is in possession of evidence to prove allegations, there should be no need to pass order under sectio 156(3) of the Cr.P.C.
17. In Shri Subhkaran Luharuka & Anr. v. State & Anr., 2010 SCC OnLine Del 2324, Hon'ble Delhi High Court has observed in para no.52:
"(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complainant. It CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 9 should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant under Section 156(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders.
(iii) The Magistrate, when approached with a complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if is felt that there is a necessity to call for a police report under Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under section 156 (3) of the Code is also filed along with a complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but additionally, he should also be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
18. In Mrs. Priyanka Srivastav & Anr. v. State of UP & Ors., Criminal Appeal no. 781 of 2012 decided on 19.03.2015, Hon'ble CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 10 Supreme Court has observed that it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind and he has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order and further the learned Magistrate should take the note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It was further observed that power under section 156(3) warrants application of judicial mind and a court of law is involved. It was also observed that it is not the police taking steps at the stage of section 154 of the Cr.P.C. and in a litigant at his own whim can not invoked the authority of the Magistrate. It was also observed that there has to be prior application under section 154(1) and 154(3) while filing a petition under section 156(3) and both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. It was also observed that an application under section 156(3) be supported by an affidavit and the veracity of the complaint can also be verified by the learned Magistrate, regard being had to the nature of the allegations of the case.
19. Hence, it is clear from the above judgments/authorities that if complaint discloses commission of cognizable offences and investigation is required by the police and prior complaint under section 154 (1) and 154(3) of the Code have filed before the SHO and the DCP respectively and affidavit has been filed alongwith CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 11 the complaint filed before learned trial court, the order of registration of FIR can be passed under section 156(3) of the Code by the Magistrate. This Court has to consider as to whether complaint discloses commission of cognizable offence/s and an investigation is required by the police in given facts and circumstances of the case and other conditions are fulfilled in the present case.
20. In the present case, an application under section 156(3) of the Cr.P.C. for registration of F.I.R. for the offences under sections 307, 354, 378, 379, 442, 443, 450, 452, 506 and 509 of the I.P.C. moved by the revisionist on above mentioned facts was rejected by the learned Metropolitan Magistrate by the impugned order on the following reasons:
"------- Coming back to the present case, the allegations leveled by the complainant resolves around the alleged commission of offences of assault for outraging the modesty of the complainant's daughter by the accused persons and also the alleged attack made by the proposed accused persons on the father in law of complainant's daughter. However, the complainant has failed to substantiate such allegations with any cogent material on record. The complainant has also failed to explain as to why the medical examination of the father in law of her daughter was not conducted when he had allegedly sustained injuries during the assault. It is not a plausible explanation that police did not get the MLC of the injured conducted. The complainant was duty bound to prima facie establish her allegations with some cogent medical record to establish the alleged assault on her daughter and the daughter's father in law. Further, the ATR filed by the inquiry officer suggests that the scuffle between the complainant and proposed accused persons broke out from a water dispute and apprehending breach of public peace, already a kalandra under Section 107/150 Cr.P.C. has been filed against both the parties. The present case does not require any scientific investigation to be conducted by the police nor same requires any custodial interrogation of proposed accused. The evidences of the case are well within the control and reach of the complainant. Therefore, CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 12 there does not exist any ground for issuing directions qua registration of case FIR under Section 156 (3) Cr.P.C. in the present case. Accordingly, the present application deserves dismissal and same is hereby dismissed."
21. The impugned order goes to show that said application for registration of F.I.R. was rejected mainly on the reasons that the complainant (revisionist herein) has failed to substantiate such allegations with any cogent material on record; that the complainant has also failed to explain as to why the medical examination of the father in law of her daughter was not conducted when he had allegedly sustained injuries during the assault; that the complainant was duty bound to prima facie establish her allegations with some cogent medical record to establish the alleged assault on her daughter and the daughter's father in law; that the present case does not require any scientific investigation to be conducted by the police nor same requires any custodial interrogation of proposed accused; that the evidences of the case are well within the control and reach of the complainant.
22. The revisionist was seeking registration of F.I.R. but at that stage the learned Metropolitan Magistarte expected the revisionist to substantiate allegations levelled by her with any cogent material on record. It is correct that there is no medical examination of the daughter of the revisionist and also of father in law of daughter of the revisionist, but it was explained by the revisionist stating that police did not get the MLC of the injured conducted.
23. As per the impugned order, the case does not require any scientific investigation to be conducted by the police nor same CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 13 requires any custodial interrogation of proposed accused and further the evidences of the case are well within the control and reach of the revisionist. It is pertinent to mention at this juncture that the revisionist levelled the allegations also that Afsar's son who is accused no.3 had called 20-25 people to assault/sexually assault the daughter of the complainant whose cloths, accused No.4 namely Nikki had already torned off. There are allegations also that accused no.2 who is the wife of Afsar, during the assault forcibly took out and stole gold earrings which complainant was wearing. It is also alleged that there are some other accused persons who are unknown. These evidence cannot be said to be well within the control and reach of the revisionist. The information/complaint is having said allegations, and therefore, it cannot be said that investigation is not required by the police. For recovery of earrings and for tracing unknown persons, investigation is definitely required by the police.
24. From the facts of the case, I am of the opinion that the case fulfils these requirements which are necessary to be seen for registration of F.I.R.. Investigation is required by the police and prior complaint under section 154 (1) and 154(3) of the Code have filed before the SHO and the DCP respectively and affidavit has been filed alongwith the complaint filed before learned trial court. The complaint discloses commission of cognizable offences and an investigation is required by the police in given facts and circumstances of the case and other conditions are fulfilled in the present case. It is also important to note that there are allegations of offence punishable under sections 354 and 509 CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 14 of the I.P.C. in the information/complaint. Section 166A was inserted in the I.P.C. by the Criminal Law (Amendment) Act 2013 which makes non-registration of F.I.R. for the offences 354, 509 IPC and other offences as mentioned therein as offence. Said provision reads as under:
"166A. Public servant disobeying direction under law.-- Whoever, being a public servant,--
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under sub-
section (1) of section 154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509, shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine."
25. Said aforementioned Amendment Act came in to force on dated 03.02.2013, and therefore, from the said date, failure to record any information by a public servant given to him under section 154 (1) of the Cr.P.C. in relation to cognizable offence punishable under section 354 and 509 of the I.P.C is an offence. The Constitutional Bench of Hon'ble Supreme Court in case of Lalita Kumari (supra), observed:
"34) Although, the argument is as persuasive as it appears, yet, we doubt whether such a presumption can be drawn in contravention to the unambiguous words employed in the said CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 15 provision. Hence, insertion of Section 166A in the IPC vide Criminal Law (Amendment) Act 2013, must be read in consonance with the provision and not contrary to it. The insertion of Section 166A was in the light of recent unfortunate occurrence of offences against women. The intention of the legislature in putting forth this amendment was to tighten the already existing provisions to provide enhanced safeguards to women. Therefore, the legislature, after noticing the increasing crimes against women in our country, thought it appropriate to expressly punish the police officers for their failure to register FIRs in these cases. No other meaning than this can be assigned to for the insertion of the same."
[underlines are mine]
26. This Court has issued notice to the Inspector Mr. N. R. Lamba, the then S.H.O. of Police Station I. P. Estate to explain as to why F.I.R. was not registered despite the allegations in relation to cognizable offences including sections 354 and 509 of the I.P.C. and despite the law [section 166A(c) of the I.P.C.] making non-registration of F.I.R. as offence. He appeared in the Court and filed his reply/explanation explaining that on 20.05.2020, when the Covid-19 Pendamic was on the peak a complaint was received at Police Station from one Laxmi Devi (revisionist herein) and same was entrusted to Sub Inspector Satender Singh to enquire the facts as the people in JJ colony Anna Nagar are mostly uneducated and used to approach a typist near by and the typist writes the complaint his own, many a time suppressing the facts and on other hand exaggerating the facts however, incident was alleged of 19.05.2020 and no PCR call or information was given to Police Station. It is further explained that on enquiry nothing short of offence like torn off the clothes was found and it was a simple dispute over putting a water motor on public water line by Smt. Laxmi Devi and the other residents objected as they CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 16 were deprived their right to fetch water from public facility. It is further explained that such kind of dispute and quarrel was a general affairs in JJ colony and further that there was no deliberate omission on his part, it was just for verifying the facts as the complainant was not so educated and complaint was written by someone else and also that during the enquiry no such offence was found to be committed.
27. Said explanation/excuse of said S.H.O. is required to be rejected outrightly because, it is well settled that that the reasonableness or creditability of the information is not a condition precedent for the registration of a case and no inquiry is permissible if information is received in relation to cognizable offence. For registration of F.I.R, it is only to be seen that the information discloses commission of a cognizable offence. In State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335 the legislative intent of Section 154 is vividly elaborated which is as under:-
"30. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable offence"
(as defined Under Section 2(c) of the Code) if given orally (in which case it is to be reduced into writing) or in writing to "an officer incharge of a police station" (within the meaning of Section 2(o) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Information Report" and which act of entering the information in the said form is known as registration of a crime or a case.
31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an inquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 17 that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the nonqualification 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 CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 18 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 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."
28. In Lalita Kumari (supra) held that expression"information" (not "credible information" or "reasonable information") has been used in section 154 of the Cr.P.C.. In para 64, it is held in relation to expression "information" that the reasonableness or creditability of the information is not a condition precedent for the registration of a case. Said para reads as under:
64) The legislature has consciously used the expression "information" in Section 154(1) of the Code as against the expression used in Section 41(1)(a) and (g) where the expression used for arresting a person without warrant is "reasonable complaint" or "credible information". The expression under Section 154(1) of the Code is not qualified by the prefix "reasonable" or "credible". The non qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code is for the reason that the police officer should not refuse to record any information relating to the commission of a cognizable offence 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 the registration of a case."
29. Reliability, Genuineness and Credibility of the information are not the conditions precedent for registering a case under CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 19 Section 154 of the Cr.P.C.. [Reference: Lallan Chaudhary & Ors v. State of Bihar & Anr, Appeal (crl.) 1047 of 2006 decided on 12/10/2006 by the Hon'ble Supreme Court]
30. Hence, the condition that is sine qua non for recording an F.I.R. under section 154 of the Cr.P.C is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is given to an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to register a case on the basis of such information. The provision of Section 154 of the Cr.P.C. is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing a cognizable offence.
31. In Lalita Kumari (supra), it was observed also that if a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality.
32. There is no any discretion or option left with the police to register or not to register an FIR when information is given about the commission of a cognizable offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided under Section 154 of the Cr.P.C. about the commission of a cognizable offence must be registered as an FIR so as to initiate an offence. The requirement of Section 154 of the Code is only that the report must disclose the CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 20 commission of a cognizable offence and that is sufficient to set the investigating machinery into action. [Reference: Lalita Kumari (supra)]
33. Non-registration of F.I.R. is a clear violation of the rights of the victim and against the principle of rule of law. Non- registration of F.I.R. leads to a definite lawlessness in the society. Other considerations are not relevant at the stage of registration of F.I.R., such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the F.I.R.. At the stage of registration of F.I.R., what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false F.I.R..
34. In the present case, a grave miscarriage of justice has been committed by the Police Officer/SHO of concerned Police Station by not registering the FIR. The Police Officer/ SHO of the police station by not registering F.I.R. is not only committing offence under section 166A(c) of the I.P.C. but making himself liable for departmental action and for contempt of the Court of Hon'ble Supreme Court also.
35. Inherent advantages in registering F.I.R. are observed in Lalita Kumari (supra) in following words:
"88) The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 21 the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:
a) It is the first step to 'access to justice' for a victim.
b) It upholds the 'Rule of Law' inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.
c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.
d) It leads to less manipulation in criminal cases and lessens incidents of 'ante-dates' FIR or deliberately delayed FIR."
36. We the people of India is having our Constitution. Aricle 21 of the Constitution protect life and personal liberty of a person. Deprivation of life and liberty of a person can be made only according to procedure established by law.
37. India is a democratic country. Their are three main pillars of the democracy, namely, Legislature, Executive and Judiciary. The legislature has enacted Cr.P.C. which made registration of F.I.R. mandatory under section 154 of the Cr.P.C. directing the S.H.O. to register F.I.R. in case of receiving information relating to the commission of a cognizable offence. If said information is given by the woman against whom an offence enumerated in proviso first to section 154 of the Cr.P.C. is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any other woman officer. All the offences mentioned in said proviso are in relation to the offences aginst women. Two offences which have also been disclosed in the present case viz. section 354 and section 509 of the I.P.C. are CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 22 also mentioned in the said proviso. It is also necessary to make videography of recording of such information. It is mandatory for the police officer to get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 of the Cr.P.C..
38. The executive (Ministry of Home Affairs, Government of India) has also issued guidelines (F. No. 15011/190/2020-- SC/ST-W dated 09.10.2020) regarding "Mandatory action by police in cases of crime against women". Relevant para thereof reads as under:
"2. It is again brought to your attention that- criminal laws relating to sexual offences against women provide, inter-alia, for the following actions to be taken by the Police in such cases:
(i) Compulsory registration of FIR in case of cognizable offence under subsection (1) of section 154 of the Code of Criminal Procedure, 1973 (CrPC). The law also enables the police to register FIR or a "Zero FIR" (in case the crime is committed outside the jurisdiction of police station) in the event of receipt of information on commission of a cognizable offence, which includes cases of sexual assault on women.
(ii) Section 166 A(c) of the Indian Penal Code 1860 (IPC) provides for punishment to a public servant for failure to record FIR in relation to cognizable offences punishable under section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 in IPC.
xxx xxx xxx
3. However, even with stringent provisions in law and several capacity building measures undertaken, any failure of police to adhere to these mandatory requirements may not augur well for the delivery of criminal justice in the country, especially in context of women safety. Such lapses, if noticed, need to be investigated into and stringent action taken immediately against the concerned officers responsible for the same.
4. It is requested that States/ UTs, may suitably issue instructions to all concerned to ensure strict compliance with the provisions CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 23 in the law, as mentioned above. It is also requested to monitor the cases on ITSSO to ensure that suitable follow up action is taken for charge-sheet of the guilty in a timely manner as required in the law."
39. The Judiciary in Lalita Kumari (supra) directed/held in respect of registration of F.I.R. and consequences of failure to lodge F.I.R.:
"Conclusion/Directions:
111) In view of the aforesaid discussion, we hold:
(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 CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 24
(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."
40. On 05.03.2014, clause (vii) of paragraph 111 of the judgment passed in Lalita Kumari (supra) had been modified:
"Heard Mr. Sidharth Luthra, learned Additional Solicitor General.
After hearing him and in the light of the grievance expressed in the present criminal miscellaneous petition filed in the writ petition, we modify clause (vii) of paragraph 111 of our judgment dated 12th November, 2013, in the following manner:
"(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 fifteen days generally and in exceptional cases, by giving adequate reasons, six weeks time is provided. The fact of such delay and the causes of it must be reflected in the General Diary entry."
To this extent, clause (vii) of paragraph 111 of the judgment is modified.
CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 2541. Therefore, the three pillars of the democracy have enacted/issued/passed law/advisory/judgment, as the case may be, for the protection of women. But, the S.H.O. of a police station is not obeying said law, advisory and judgment of said three pillars of democracy. It appears to this Court that the S.H.O. thinks that he is above the law, and that is why he has not registered F.I.R., otherwise it is not possible not to obey rule of law. It appears to this Court that S.H.O. forotten the maxim "be you ever so high, the law is above you". The S.H.O. has not registered F.I.R. despite the direction of Hon'ble Supreme Court in Lalita Kumari (supra) for taking against erring officers who do not register the FIR if information received by him discloses a cognizable offence. It is most important to note that non- registration of F.I.R. in relation to cognizable offence punishable under section 354 and 509 of the I.P.C. by a public servant has been made offence punishable under section 166A (c) of the I.P.C. for a term which shall not be less than six months but which may extend to two years, and fine also. This offence is made cognizable and therefore, F.I.R. can be registered against a public servant (S.H.O. etc.). Hence, if public servant does not register F.I.R. in cognizable offence then he may be liable for departmental action and contempt of court and may be prosecuted for the offence under section 166A(c) of the I.P.C. by registering F.I.R. or filing complaint. It is made clear by explanation to section 197 of the Cr.P.C. that no sanction for taking cognizance for the offence under section 354 and section 509 of the I.P.C. against the public servant shall be required. Hence, there are several provisions in Cr.P.C. and I.P.C. and CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 26 judgments passed by Hon'ble Supreme Court and by various Hon'ble High Courts for compelling a public servant (S.H.O. etc.) to register F.I.R. in coznizable offence, but S.H.O. has not taken seriously these all provisions and judgments and has not registered F.I.R. in present case.
42. The police officer, if information discloses commission of cognizable opffence punishable under sections 354 and 509 of the I.P.C., has no other option except to register F.I.R.. Even no preliminary inquiry is permissible if information discloses commission of cognizable offence. A preliminary inquiry may be conducted if information does not discloses a cognizable offence but indicates the necessity for an inquiry. 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. The inquiry, if any, would be time bound manner and it should not exceed fifteen days generally and in exceptional cases, by giving adequate reasons, it should not exceed six weeks. The fact of such delay and the causes of it must be reflected in the General Diary entry.
43. In the present case preliminary inquiry has been conducted by the police. Said preliminary inquiry is not permissible because the information/complaint discloses commission of cognizable offences. Further, as per direction no. (iii) mentioned in para 111 of Lalita Kumari (supra), a copy of the entry of closure must be supplied to the first informant forthwith and not later than one week in cases where preliminary inquiry ends in closing the complaint; it must disclose reasons in brief for closing the CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 27 complaint and not proceeding further. There is no compliance of this direction by the S.H.O./Police officers. Insofar as Kalandra under section 107/150 of the Cr.P.C. is concerned, I am agree with the contention of learned counsel for the revisionist that the proceedings under sections 107/151 of the Cr.P.C. cannot be a substitute to the mandatory obligation of the police officials to register the information alleging commission of a cognizable offence.
44. It is unfortunate also that senior police officer like Deputy Commissioner of Police is also not discharging his duty as provided under Section 154 (3) of the Cr.P.C. which says that 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 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 the Cr.P.C., and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. When police officer/SHO does not register F.I.R. in cognizable offence under Section 154 (1) of the Cr.P.C. and Deputy Commissioner of Police also does not discharge his duty as mentioned in Section 154(3) of the Cr.P.C. then complainant/informant has to rush to the Magistrate for filing complaint/application under Section 156 (3) of the Cr.P.C.. In the present case the revisionist approached CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 28 to Deputy Commissioner of Police also as per section 154(3) of the Cr.P.C. but he has also not performed his duty.
45. The Hon'ble Division Bench of Rajasthan High Court in the matter of Prahlad Sharma (supra) directed initiation of action against the erring Police officials and Medical Officials for violation of Section 166A and 166B of the Indian Penal Code. The operative portion of the Judgment reads as follows:
"11. Section 166A and 166B IPC and Section 357C Cr.P.C. were purposely introduced by way of amendment on the basis of the report of Justice J.S. Verma Committee, which was set up in the aftermath of huge uprising throughout the country following Nirbhay's rape incident in Delhi. The Parliament has introduced various amendments in the IPC, Cr.P.C. and the Act of 2012, Where under stringent penal provisions, not only against accused actually involved in the incident of rape but also against guilty officials of Police Department who, despite being made aware of offence, fail to take immediate action against accused and also the officials of the Medical Department, who neglect in providing immediate medical aid/treatment to the victim.
12. All the aforesaid provisions are clearly attracted in the facts of the present case. When Parliament by amendment has purposely introduced Sections 166A and 166B in the IPC and also made this inaction/omission as provided for by Section 19 of the Act of 2012 as the offences under section 21, supra, there is no reason why the guilty officials should not be proceeded against for determination of their criminal liability. Disciplinary proceedings initiated against them would be in addition to, but not in lieu of, their criminal prosecution. When the law specifically provides for the same, We see no reason for not prosecuting them. We therefore direct that in order to launch prosecution against guilty officials of the Police Department as well as Medical and health Department, necessary steps be taken by the State to set the law into motion."
46. In view of above discussions, this Court is of the view that impugned order dated 24.12.2020 deserve to be set aside being incorrect and accordingly, same is set aside and application under CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 29 section 156 (3) of the Cr.P.C. is allowed. S.H.O., Police Station I. P. Estate is directed to register F.I.R. and investigate the case. The revision is allowed, accordingly.
Copy of this order be sent to the Commissioner of Police, Delhi.
Dated: 01.08.2022
(Sanjeev Kumar-II)
Special Judge (NDPS)-02,
Central District, Tis Hazari Courts, Delhi
CR No. 86/2021 Smt. Laxmi Devi v. State & Ors. 30