Patna High Court - Orders
Shiv Kumar vs The State Of Bihar on 1 February, 2022
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.38807 of 2020
Arising Out of PS. Case No.-163 Year-2020 Thana- WARISLIGANJ District- Nawada
======================================================
SHIV KUMAR S/o Late Sanjay Pandit R/o Village- Baghi Chakwae, P.S.-
Warisaliganj, District- Nawada.
... ... Petitioner
Versus
1. The State of Bihar.
2. Financial Intelligence Unit (FIU), LIC Building, Cannaught Place, New
Delhi. New Delhi.
3. The Reserve Bank of India, Patna, Bihar.
4. The Economic Offences Unit (EOU) Bihar.
5. Twitter LLC
6. Youtube LLC
7. WhatsApp LLC
8. Meta Platforms, Inc.
9. Google LLC
... ... Opposite Parties
======================================================
with
CRIMINAL MISCELLANEOUS No. 22001 of 2021
Arising Out of PS. Case No.-493 Year-2020 Thana- LAHERIMUHALLA District- Nalanda
======================================================
Bachan Kumar @ Ram Bachan Kumar Son Of Karu Sao Resident Of Village-
Rasalpur, Police Station- Katrisarai, District- Nalanda
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
with
CRIMINAL MISCELLANEOUS No. 43748 of 2021
Arising Out of PS. Case No.-101 Year-2021 Thana- KASHICHAK District- Nawada
======================================================
Rinku Singh @ Deepak Kumar @ Deepak Kumar Rinku S/o Late Chotan
Singh Resident of Village- Khakhri, P.S.- Town, Police Station- Kashichak,
District- Nawada.
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022
2/29
Appearance :
(In CRIMINAL MISCELLANEOUS No. 38807 of 2020)
For the Petitioner : Mr. Pramod Kumar Verma, Advocate
For the Union of India : Dr. K.N. Singh, Addl. Solicitor General
Mr. Manoj Kumar Singh, Advocate
For the R.B.I. : Mr. K.K. Jha, Senior Advocate
Mr. Amit Prakash, Advocate
For the State : Mr. Ajay, G.A.-5
Mr. Shailendra Kumar, APP
For JIO : Mr. Ratnakar Pandey, Advocate
For Airtel and Vodafone : Mr. Rajesh Ranjan, Advocate
For the Intervenor : Mr. Bhaskar Shankar, Advocate
Mrs. Prakritita Sharma, Advocate
Mr. Manu Tripurari, Amicus Curaie
(In CRIMINAL MISCELLANEOUS No. 22001 of 2021)
For the Petitioner/s : Mr. Sudish Kumar, Advocate
For the Opposite Party/s : Mr. Binod Kumar, APP
(In CRIMINAL MISCELLANEOUS No. 43748 of 2021)
For the Petitioner/s : Mr. Mukesh Kant, Advocate
For the Opposite Party/s : Mr. Tarkeshwar Nath Thakur, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
15 01-02-2022These matters have been heard through video conferencing because of COVID-19 pandemic.
Heard Dr. K.N. Singh, learned Additional Solicitor General of India assisted by Sri Manoj Kumar Singh, learned C.G.C., for the Union of India, Sri Arvind Datar, learned Senior Advocate assisted by Sri Pavit Singh Katoch, Mr. Aasish Somasi, learned Advocates, for respondent no.9-WhatsApp, LLC, Sri Gauhar Mirza and Sri Tejas Karia, learned Advocates for the respondent No.5-Instagram LLC, Sri Mukul Rohatgi, learned Senior Advocate assisted by Sri Ajit Warrier, Mr. Varun Pathak, Smt. Ekta Sharma and Smt. Sheniza Farid, learned Advocates for respondent no.11-Meta Platforms, Inc., Sri P.N. Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 3/29 Shahi, learned Senior Advocate assisted by Sri Apurv Harsh, Sri Sujit Kumar and Sri Prashant Bhardwaj, learned Advocates for the State Bank of India, Sri Amit Shrivastava, learned Senior Advocate, assisted by Sri Girish Pandey, Smt. Mamta Rani, Smt. Shrruttima Ehersa, Sri Rohan Ahuja, Sri Vatsalya Vishal and Smt. Riya Gupta, learned Advocates, for the respondent nos. 8 and 12, Youtube LLC & Google LLC., Sri Kaushal Kumar Jha, learned Senior Advocate assisted by Sri Amit Prakash, learned Advocate for the Reserve Bank of India (for short "R.B.I.), Sri Ajay, G.A.-5 assisted by Sri Shailendra Kumar, Sri Binod Kumar, Sri Tarkeshwar Nath Thakur, learned APPs for the State along with Senior Superintendent of Police, Muzaffarpur, Sri Bhaskar Shankar and Smt. Prakritita Sharma, learned counsel for the Intervenors, Sri S.A. Narayan, learned Senior Advocate with Sri Suresh Prasad Singh, learned Advocate for the Punjab National Bank (for short "P.N.B."), Sri Harendra Prasad Singh, learned Advocate for the B.S.N.L., Sri Shailesh Thakur, Additional Director of Financial Intelligence Unit and Sri Vishwanath Prasad Sinha, learned Senior Counsel assisted by Smt. Soni Srivastava, learned counsel for the Economic Offences Unit (for short "EOU").
The Superintendents of Police Nawada, Nalanda Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 4/29 and Sheikhpura have also joined the proceeding virtually and have been represented by Sri Ajay, G.A.-5.
Sri Amit Srivastava, learned Senior Advocate has submitted that at page no.5 of the order dated 21.01.2022 the name of the branch of S.B.I. has wrongly been typed as "Kidwaipuri Branch" in place of "S.B.I. PBB S.K. Puri".
Let the name of the branch of S.B.I. mentioned at page no.5 of the order dated 21.01.2022 be read as "S.B.I. PBB S.K. Puri" in place of "Kidwaipuri Branch".
Matter being investigated by the E.O.U. pursuant to the order of this Court.
Sri Amit Shrivastava, learned Senior Advocate assisted by Sri Girish Pandey, Smt. Mamta Rani, Smt. Shruttima Ehersa, Sri Rohan Ahuja, Sri Vatsalya Vishal and Smt. Riya Gupta, learned Advocates for the respondent nos. 8 and 12, Youtube LLC & Google LLC has informed this Court that they have blocked all the URLs, the details of which were shared by the E.O.U. with respondent nos. 8 and 12 namely, Youtube LLC & Google LLC. He also submits that Youtube LLC and Google LLC are fully cooperating with the E.O.U. in investigation of E.O.U. P.S. Case No.30 of 2021. He further submits that in case any further details are required by the E.O.U., the Youtube LLC Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 5/29 and Google LLC will supply the same to the E.O.U. at the earliest, and in order to facilitate the same, he has requested that a copy thereof may be marked to him also when E.O.U. sent e- mail to Youtube LLC and Google LLC.
Sri Vishwanath Prasad Sinha, learned Senior Advocate assisted by Smt. Soni Srivastava, learned Advocate for the E.O.U. has submitted that henceforth Mr. Amit Srivastava, learned Senior Advocate will be forwarded all the e- mails which are being sent by the E.O.U. to Youtube LLC and Google LLC seeking information in connection with E.O.U. P.S. Case No. 30 of 2021.
At the very outset, Mr. Mukul Rohatgi, learned Senior Advocate appearing for the respondent no.11-Meta Platforms, Inc. submits that he wants two weeks' time to file an affidavit on behalf of respondent no.11-Meta Platforms, Inc. He further submits that the names of five URLs, details of which have been provided by the E.O.U., may also be provided to respondent no.11-Meta Platforms, Inc. so that the said URLs can be blocked or taken down by the respondent no.11-Meta Platforms, Inc. E.O.U. is directed to send the details of five URLs which are to be taken down and blocked by Meta Platforms, Inc. Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 6/29 or Sri Samir Ali Khan, learned Advocate representing the Meta Platforms, Inc. By order dated 27.01.2022, respondent no.11-Meta Platforms, Inc. was granted ten days time to file its affidavit to consider the submission of Sri Mukul Rohatgi, learned Senior Advocate, that they cannot block or take down the objectionable videos without any Court order.
In the opinion of this Court, when the objectionable posts/videos are uploaded by individuals which are prima facie and per se abusive of the judiciary in which even abusive language is being used against the Judges of the Supreme Court of India, Judges of the High Court and Officers of the State Judiciary, no Court order is required to block or take down the objectionable posts/videos or materials from the public platforms. Respondent No.11-Meta Platforms, Inc. is to specifically file its affidavit on the aforesaid issue.
On the request of Sri Mukul Rohatgi, learned Senior Advocate, two weeks' time is granted to respondent no.11-Meta Platforms Inc. to file its affidavit with regard to the aforesaid observations so that this issue can be decided at the earliest.
This Court is of the opinion that Ministry of Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 7/29 Information and Broadcasting is also a necessary party in the facts of this case when this Court is dealing with the objectionable posts/videos abusing the judiciary and therefore, they should also be heard in this proceeding.
Office is directed to add the Ministry of Information and Broadcasting, Government of India through its Secretary as opposite party to this proceeding.
The Ministry of Information and Broadcasting will be represented by Dr. K.N. Singh, learned Additional Solicitor General of India. He is directed to file affidavit about the stand of the Ministry as to whether abusive posts/videos against the judiciary should be removed from the social medial platforms or they will do it only after a Court order.
Sri Arvind Datar, learned Senior Advocate, appearing for the respondent no.9-WhatsApp LLC has also submitted that WhatsApp LLC is also providing full cooperation with the investigating agency and they shall also, in future, be providing full cooperation with the E.O.U. He also prays for two weeks' time to file his affidavit and the same is allowed.
Matter relating to illegal wealth of cyber criminals.
The reports of the Superintendents of Police, Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 8/29 Nawada, Nalanda and Sheikhpura, have been received, in which they have given the details of properties of cyber criminals.
Dr. K.N. Singh, learned Senior Advocate and Additional Solicitor General of India along with Mr. Manoj Kumar Singh, learned advocate for the Enforcement Directorate appear and have been heard on the issue.
Sri Daulat Kumar, Deputy Director, Enforcement Directorate, has also participated in the proceeding virtually. Sri Sanjeev Sharma, Principal Director (Investigation) has also participated in the proceeding virtually along with Mr. Rishi Raj Sinha, learned Advocate for the Income Tax Department.
Both; Enforcement Directorate and Income Tax Department, have assured this Court to take action against the cyber criminals under the relevant provisions of the Income Tax Act and Prevention of Money Laundering Act, if applicable.
Sri. Rishi Raj Sinha, learned advocate for the Income Tax and Sri Sanjeev Sharma, Principal Director (Investigation) have jointly submitted that they have manpower constraints, and in order to resolve the same, Sri Sanjeev Sharma, Principal Director (Investigation) will request the Central Board of Direct Taxes (C.B.D.T.) to provide more officers under him so that the enquiry into the source of Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 9/29 properties acquired by cyber criminals is done and action is taken under the relevant provisions of the Income Tax Act against them including prosecution under the Income Tax Act.
Sri Daulat Kumar, Deputy Director, Enforcement Directorate, has also assured this Court that they will take appropriate action under the relevant provisions of the Prevention of Money Laundering Act against the cryber criminals.
Dr. K.N. Singh, learned Senior Advocate and Additional Solicitor General of India and Mr. Rishi Raj Sinha, learned advocate for the Income Tax Department are directed to produce action taken reports from the Enforcement Directorate and Income Tax Department by 08.02.2022 as directed earlier.
In the opinion of this Court, the concerned Senior Superintendents of Police/Superintendents of Police particularly the Senior Superintendents of Police/Superintendents of Police, Nalanda, Nalanda, Sheikhpura and Patna should interact with Joint Director/Deputy Director of Enforcement Directorate and the Director General (Investigation), Income Tax Department regularly atleast once a month and share the details of the cyber criminals so that suitable action may be taken by the Income Tax Department and the Enforcement Directorate against the Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 10/29 cyber criminals.
The Director General Police or the Additinal Director General of Police (Headquarter), Bihar, Patna, are directed to issue a letter to all the Senior Superintendents of Police/ Superintendents of Police of various districts in Bihar that in case cyber crime is reported in their jurisdiction they must share the details of the cyber crime to the Enforcement Directorate and the Investigation Wing of the Income Tax Department, as directed above, so that suitable legal action is taken against them.
With regard to the matter of Punjab National Bank, Muzaffarpur.
Sri S.A. Narain, learned Senior Advocate and Mr. Suresh Prasad Singh, learned Advocate have appeared for the P.N.B. and have filed affidavits.
It has been informed that Sri Manu Tripurari, amicus curiae, is ill and therefore, on his behalf Sri Rajeev Ranjan, learned Advocate, appeared and prayed for some time to file reply to the affidavit of the P.N.B. Sri Ajay, G.A.-5 appearing for the State is directed to file his reply to the affidavit of P.N.B. by 10.02.2022.
In view of illness of Sri Manu Tripurari, learned Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 11/29 amicus curiae, Sri Santosh Kumar, learned Advocate is also appointed as amicus curiae to assist in these matters. Both; Sri Manu Tripurari and Sri Santosh Kumar will assist this Court in these cases as amicus curiae.
The matter of P.N.B. is adjourned to 11.02.2022. The Senior Superintendent of Police, Muzaffarpur, is to file his report with regard to fraud committed in various branches of P.N.B. under his jurisdiction as well as fraud committed by the cyber criminals in nearby districts by 04.02.2022.
With regard to the matter of State Bank of India. Heard Sri P.N. Shahi, learned Senior Advocate assisted by Sri Apurv Harsh, Mr. Sujit Kumar and Sri Prashant Bhardwaj, learned Advocate for this State Bank of India on the Interlocutory application filed by the applicant- Atul Kumar Verma, whose money has been cheated from the State Bank of India by the cyber criminals.
Put up this matter on 11.02.2022.
With regard to the matter of R.B.I. and F.I.U.. Due to paucity of time, the issues raised with regard to R.B.I. and F.I.U. is to be heard on 07.02.2022. Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 12/29 Sri Kaushal Kumar Jha, learned Senior Advocate has requested for exempting the personal appearance of the R.B.I. officials who are appearing virtually pursuant to the direction of this Court.
In the opinion of this Court, this is a very important matter and this cyber crime is to be controlled not only by the law enforcement agencies but also by the regulations made by the R.B.I. to protect the bank accounts of the individuals and therefore, their personal appearance in virtual mode is necessary. Hence, the prayer of Sri Kaushal Kumar Jha, learned Senior Advocate, for exempting the appearance of R.B.I. officials is rejected for the present and the officials of the R.B.I. are directed to appear on the next date of hearing i.e. on 07.02.2022.
Violation of TRAI guidelines by the Telecom Companies.
Mr. Mukul Rohatgi, learned Senior Advocate appears in Interlocutory application filed by the Cellular Operators Association of India for being added as party respondent in the present proceeding. He submits that he will make his arguments on this Interlocutory Application on a subsequent date.
Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 13/29 The Court has no objection in accepting the prayer of Sri Mukul Rohatgi, learned Senior Advocate. Accordingly, Interlocutory Application filed by the Cellular Operators Association of India is adjourned.
In the order dated 11.01.2022, this Court had made following observations, which are reproduced herein-below:-
"It appears that Telecom companies are prima facie violating the guidelines of the TRAI and they are not registering F.I.R. with regard to the fraud committed by using their SIM and they have come up with a novel way of filing complaint in the office of the D.G.P. and getting an acknowledgment of the same and as per them this is the procedure followed by the Telecom companies.
Telecom companies are acting under the license granted by the Government and they cannot try to outreach the terms of the license.
In these circumstances, the Circle Heads of Bihar of all Telecom Companies i.e. Bharti Airtel, Vodafone Idea, B.S.N.L. and Reliance JIO Limited are directed to join the proceeding virtually on the date fixed i.e. 13.01.2022 and they should also file an affidavit as to how they are abiding the guidelines of the TRAI."
Clause - 10 of Circular dated 09.08.2012 requires that the service provider is to lodge F.I.R. in the concerned Police Station or complaint in the competent Court if any forged document is found with CAF (Customer Application Form). It Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 14/29 would be useful to quote Clause-10 of the Circular dated 09.08.2012 issued by the TRAI, which is as follows:-
"10. Lodging Complaint / FIR:
(i) TERM Cell shall indicate the apparently forged cases as per their observations in the CAF Audit giving reasons for prima facie observation to the Licensee and marking them as a failed case for CAF Audit. The Licensee shall investigate such cases at their level and take necessary action as detailed below.
(ii) In order to deal with the use of forged documents for obtaining mobile connections, complaint/FIR may be lodged with the law enforcement agencies under the law of land. The complainant should clearly mention the information about the mobile umber, type of document forged along with the details about the issuing authority, date of issue, reason for suspicion as forged document, name of the person suspected (e.g. name of subscriber/PoS/Franchiesse/Licensee).
(iii) In cases where forged documents are submitted by the subscriber and originals are also forged, Police complaint/F.I.R. shall be lodged by the PoS/Franchisee against the subscriber within fifteen days of bringing it to the notice of the Licensee.
(iv) In case PoS/Franchisee fails to lodge complaint/FIR as above, Licensee shall lodge FIR/Complaint against the subscriber and Franchisee/PoS within further three days.
(v) In case where it is found that the forgery has been done by point of sale, the Licensee shall lodge the Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 15/29 complaint/FIR against the Franchisee/point of sale within one week and financial penalty shall be imposed.
(vi) In case no action is taken by the Licensee as above or the Licensee itself is involved in forgery, TERM Cell shall lodge Complaint/FIR against Licensee. Penalty shall be imposed on all such forged cases also.
(vii) In cases where it is found that the act of issuing connections were done by point of sale using the document of some other subscriber or any person without the knowledge of the subscriber or the person, or the documents were forged by the franchisee/PoS of Licensee, the concerned PoS / franchisee may be terminated by the Licensee under intimation to the Licensor (concerned TERM cell of DoT) and the designated security agencies, in addition to the actions mentioned above. The same may be intimated to all other Licensee (s) in that Service Area by TERM Cell.
The other Licensees after getting any such intimation shall terminate / not appoint any such point of sale.
(viii) No penalty shall be imposed on the Licensee, if the laid down process of activation / verification applicable at the time of activation has been followed and the forgery is done by subscriber. In case where activation/verification process is not followed by the Licensee, the penalty shall be imposed even if the documents are found to be forged."
Cyber crimes begin with the sale of SIMs to cyber criminals on the basis of forged documents. Once this forgery is committed, the cyber criminals, who use the SIM by obtaining Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 16/29 the same on the basis of forged documents, cannot be traced and it is the public at large who has to suffer. The guideline particularly for registration of the F.I.R./complaint by the Telecom Companies is not merely a procedure to be followed by them but once the F.I.R./complaint is filed by a particular person with regard to a particular crime, the Police will be activated and persons using the SIMs on the basis of forged and fabricated documents can be traced and arrested. If no F.I.R. is registered on the complaints made by the Telecom Companies then the cyber criminals operating in the State can never be traced and arrested. The Telecom Companies cannot be allowed to operate in complete violation of the guidelines of the Department of Telecommunications (DoT). It seems that neither the D.G.P. nor the Department of Telecommunications (DoT) has acted when the guidelines of the Department of Telecommunications were being violated with impunity. However, the Telecom Companies have found a novel way of not filing F.I.R. but by filing written complaints in the D.G.P. office and taking acknowledgment of the same. In the opinion of this Court, since the officers of the Department of Telecommunications posted in Bihar for last many years have accepted this practice, they are also responsible for violation of their own circular. This Court had Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 17/29 already directed the Telecom Companies to act as per the aforesaid circular dated 09.08.2012 and file complaint/F.I.R. before the competent Court/ concerned Police Stations and not in any other manner.
In the above circumstances, the Director General of Police, Bihar, is directed to file an affidavit within a period of two weeks from today as to what actions were taken on the complaints made by the Telecom Companies in his office.
The Department of Telecommunications is also to explain as to why it allowed the violation of the guidelines and allowed the Telecom Companies to operate without registration of the F.I.R./complaint as provided under the guidelines.
The Telecom Companies are also to explain as to why they have adopted this method of filing complaints in the office of the Director General of Police as the same is neither a complaint nor an F.I.R. under the Cr.P.C. The Telecom Companies should also show cause as to why PENALTY should not be levied upon them for violation of the guidelines of the Department of Telecommunications since the very beginning, which has resulted in spurt in cases of cyber crimes, which has made the State of Bihar and particularly the districts of Nawada, Nalanda and Sheikhpura in famous in the entire country as Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 18/29 everyday some Police team from other parts of the country are visiting the State of Bihar to arrest the cyber criminals. The Telecom Companies cannot be allowed to act in such a manner which has resulted in giving bad name to Bihar.
Today, Mr. Mukul Rohatgi, learned Senior Advocate, submits that the Telecom Companies will face difficulty if they are asked to file F.I.Rs in the various Police Stations under whose jurisdiction the crimes have been committed and therefore, the Telecom Companies be allowed to file complaints before the Superintendents of Police of the concerned districts in which the crime was committed. In support of his submissions, he has relied upon a judgment of Madras High Court rendered in the case of Seethalakshmi vs. State of Tamil Nadu and Ors. reported in 1989 SCC Online Mad 272 : 1991 Cri LJ 1037, more particularly paragraph no. 19 onward of the judgment and submitted that under law an F.I.R. can be filed under Section 36 of the Code of Criminal Procedure (for short "Cr.P.C.") before the Superintendent of Police of the concerned district.
I have considered the submissions of Sri Mukul Rohatgi, learned Senior Advocate and gone through the aforesaid judgment of the Madras High Court. Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 19/29 Chapter-XII of the Cr.P.C. deals with information to the Police and their powers to investigate. For proper appreciation of the facts, it would be relevant to quote Sections 154 to 160 of the Cr.P.C. which read as under:-
"154. Information in cognizable cases. - (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
[Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354-A, section 354- B, section 354-C, section 354-D, section 376, section 376-A, section 376-B, section 376-C, section376-D, section 376-E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that--
(a) in the event that the person against whom an offence under section 354, section 354-A, section 354-
B, section 354-C, section 354-D, section 376, section 376-A, section 376-AB, Section 376-B, section 376-C, section 376-D, section376-DA, Section 376-DB, section Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 20/29 376-E or section 509 of the Indian Penal Code(45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or ata convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause
(a) of sub-section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
155. Information as to non-cognizable cases and investigation of such cases.-- (1) When information is given to an officer in charge of a police station of the Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 21/29 commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3)Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4)Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
156. Police officer's power to investigate cognizable case.--(1)Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.
157. Procedure for investigation.--(1) If, from Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 22/29 information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that--
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and
(b) of the proviso to sub-section (1), the officer in Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 23/29 charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.
158. Report how submitted.-- (1)Every report sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf. (2) Such superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.
159. Power to hold investigation or preliminary inquiry.-- Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in this Code.
160. Police officer's power to require attendance of witnesses.-- (1)Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 24/29 circumstances of the case; and such person shall attend as so required:
Provided that no male person [under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person] shall be required to attend at any place other than the place in which such male person or woman resides. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.
Chapter IV of the Cr.P.C. deals with powers of superior officers of Police and Sections 36 thereof reads as follows:-
"36. Powers of superior officers of police.--Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station."
The Supreme Court in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh and Ors. reported in (2015) 6 SCC 287 while dealing with the power of the Magistrate to be exercised under Section 156(3) of the Cr.P.C., has held that there has to be prior applications under Section 154 (1) and 154 (3) while filing a petition under Section Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 25/29 156 (3) of the Cr.P.C.
The Supreme Court in the case of Lalita Kumari vs. State of U.P. reported in (2014) 2 SCC 1 has issued the following guidelines for registration of the F.I.R.
120. In view of the aforesaid discussion, we hold:
120.1. 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.
120.2. 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.
120.3. 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. 120.4. 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.
120.5. 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.
120.6. 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:
Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 26/29
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.
102.7. 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.
102.8. 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."
The Hon'ble Supreme Court in the case of Sakiri Vasu vs. State of U.P. & Ors. reported in 2008 (2) SCC 409 has observed in paragraph no.25 as under:-
"25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 27/29 petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3)."
From reading of the decisions i.e. Priyanka Srivastava (supra) Lalita Kumari (supra) and Sakiri Vasu (supra) and also the relevant provisions of the Cr.P.C., it is clear that registration of F.I.R. is provided under Chapter-XII of the Cr.P.C. and not under Section 36 of the Cr.P.C. In the opinion of this Court Section 36 of the Cr.P.C. comes into play only when no action is taken by the concerned Police for registration of the F.I.R., on a complaint and thereafter the complainant may approach the superior authority under Section 36 of the Cr.P.C. who may direct for registration of the F.I.R.
In the opinion of this Court, the judgment of Madras High Court rendered in the case of Seethalakshmi (supra) relied upon by Sri Mukul Rohatgi, learned Senior Advocate, is not applicable in the facts of the present case. The complainant cannot be allowed to approach the police officer superior in rank to an officer in-charge of a Police Station, who Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 28/29 may exercise the same powers throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. Unless and until, an F.I.R. is lodged by the complainant and if the same is not registered by the Station House Officer of the concerned Police Station, under whose jurisdiction the crime has been committed, the complainant cannot approach the superior police officer in rank to the Officer-in-Charge of the Police Station. In the opinion of this Court, filing of F.I.R. is most essential and the same should be done chronologically. Initially, the complainant must try to lodge the F.I.R. under Section 154 of the Cr.P.C. as primary duty to register F.I.R. is of the Station House Officer of the concerned Police Station and if the Station House Officer of the concerned Police Station refused to register the F.I.R. then the complainant must move under Section 154(3) and under Section 36 of the Cr.P.C. by filing a written complaint to the Superintendent of Police of the concerned district, who may exercise the same powers as being exercised by the Station House Officer of the concerned Police Station and on refusal of the same by the Superintendent of Police, the complainant may move the Court under Section 156 (3) of the Cr.P.C. for registration of the complaint and sending it to the Police Station for registration of Patna High Court CR. MISC. No.38807 of 2020(15) dt.01-02-2022 29/29 the F.I.R. and investigation.
Considering the above, the submission of Sri Mukul Rohatgi, learned Senior Advocate that Telecom Companies be allowed to file their complaints directly before the Superintendent of Police of concerned district is hereby rejected. The Telecom Companies are directed to register the F.I.R. in the local police stations under whose jurisdiction the offence has been committee and if the Station House Officer of the concerned Police Station does not register the F.I.R. only then the Telecom Companies can approach the concerned Superintendent of Police for registration of the F.I.R. The Telecom Companies cannot approach the Superintendent of Police or the D.G.P. directly for registration of the F.I.R.
List this matter for further hearing on 07.02.2022.
(Sandeep Kumar, J) pawan/-
U