Andhra HC (Pre-Telangana)
K.Aravinda Rao vs 1. A.Sunder Kumar Das And Others on 19 January, 2015
Bench: M.S.Ramachandra Rao, S.V. Bhatt
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AND THE HONOURABLE SRI JUSTICE S.V. BHATT W.A.M.P.No.8 of 2015 19-01-2015 K.Aravinda Rao.Petitioner. 1. A.Sunder Kumar Das and others...Respondents. Counsel for the appellant :Sri R.Raghunanda Rao, learned Senior Counsel for Sri T.Vinod Kumar, learned counsel. Counsel for the 1st respondent: Sri P.Ratnam. ^Spl. G.P. for Respondent Nos.2 and 3: Sri A.Sanjeev Kumar. Counsel for the 4th respondent:Sri C.Naga Raghu. <GIST: >HEAD NOTE: ? Cases referred 2014 (1) ALD (Crl.) 768 2 (2012) 12 SCC 321 3 (2014) 2 SCC 1 4 2014 (2) ALT (Crl.) 6 (A.P.) THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AND THE HONOURABLE SRI JUSTICE S.V. BHATT W.A.M.P.No.8 of 2015 in/and W.A.(S.R.).No.1269 of 2015 ORDER :
(per MSR,J) W.A.M.P.No.8 of 2015 is filed seeking leave to file the appeal against the order dt.30.12.2014 in WP.No.5245 of 2009 passed by a learned single Judge of this Court. W.A.S.R.No.1269 of 2015 is filed under Clause 15 of the Letters Patent questioning the said order.
2. For the sake of convenience the petitioner in W.A.M.P.No.8 of 2015 is referred to hereinafter as the appellant.
3. The matter was argued at length by learned counsel appearing for all the parties before us. A short point arises for consideration in this Appeal, and so the Appeal is being disposed of by us after hearing the matter fully.
4. The 1st respondent before us is a direct recruit Dy. Superintendent of Police selected in Group-I Services examination conducted by the Andhra Pradesh Public Service Commission in 1987. After his appointment, he had worked as Dy. Superintendent of Police at various places. He was later promoted as Addl. Superintendent of Police and then as Superintendent of Police. He was elevated to I.P.S. in 2002 treating his year of allotment to the I.P.S. as 1998. In the year 2009, at the time of filing of the Writ Petition, he was working as Chief of Vigilance and Security, A.P. Genco, Vidyut Soudha, Somajiguda, Hyderabad. He mentions that he belongs to the Scheduled Caste community.
5. The 1st respondent felt that on account of his caste, he was discriminated at every stage in the matter of postings to important positions in the Police Department, particularly for the post of District In-Charge Superintendent of Police/Dy. Commissioner of Police (Law and Order). He felt that officers junior to him were favoured and given such postings as District Incharge violating the principles of equality and equal opportunity of employment apart from principles of natural justice.
6. As the 1st respondent believed that the appellant, who was then Addl. D.G.P. (Intelligence) and also a Member of the Police Establishment Board (which looks after the transfers and postings of I.P.S. Officers) , had given false and frivolous information with animosity towards him to the then Honble Chief Minister and was responsible for the 1st respondent not being considered for posting as District In-Charge since 2004, he lodged complaint dt.03.01.2009 with 2nd respondent alleging that the appellant was guilty of committing an offence under the S.Cs and S.Ts (Prevention of Atrocities) Act,1989 ( for short the Act) and practicing untouchability and appellant is liable to be prosecuted and punished under the above Act and Protection of Civil Rights Act, 1955. In the said complaint, he contended that in the transfers and postings of Police Officers which took place in 2008, one N. Shiv Shankar Reddy, I.P.S. who was conferred I.P.S. on 11.12.2007 and was junior to 1st respondent, was posted as Dy. Commissioner of Police (East Zone), ignoring 1st respondents claim for regular posting. He therefore requested the 2nd respondent to register a case under the Sec.3(1)(ix) of said Act r/w Protection of Civil Rights Act, 1955, investigate into it, prosecute and punish the appellant.
7. The 1st respondent addressed letter dt.17.02.2009 to the 4th respondent herein, who was then the Commissioner of Police, Hyderabad City, to direct the 2nd respondent to immediately register a case against the appellant and to send a copy of the First Information Report (for short FIR) to him.
8. On 26.02.2009, the 2nd respondent informed the 1st respondent that he had received copy of the above letter from 4th respondent; that the complaint made by him did not contain enough information to attract penal provisions of the Act; and that therefore, no case was registered, but that a General Diary entry is made for causing enquiries to collect all the facts necessary for taking necessary steps under law. The 2nd respondent stated that the complaint was still under enquiry for registration of case under the said Act.
9. Not satisfied with the said reply, the 1st respondent wrote a letter dt.28.02.2009 to the 2nd respondent stating that under Section 154 Cr.P.C. r/w Rules 5, 6 and 7 of the SC & ST (POA) Rules, 1995, the 2nd respondent, as Station House Officer, is expected to register a case immediately after receipt of a complaint and issue a copy of FIR to 1st respondent since what was stated in the complaint dt.3.1.2009 against the appellant amounts to a cognizable offence and start investigation immediately. He also stated that in regard to the complaint made by him against the appellant, the Investigation Officer shall be of cadre of not less than Dy. Superintendent of Police/Asst. Commissioner of Police and so the question of conducting enquiry by the Station House Officer by or after calling for more information does not arise. He, therefore, requested for registration of case against the appellant immediately and for sending copy of FIR to him.
10. In reply thereto, the 2nd respondent informed the 1st respondent vide letter dt.09.03.2009 that a preliminary enquiry was conducted by him and it was found that allegations in the complaint dt.03.01.2009 lodged by the 1st respondent against the appellant do not attract the provisions of the Act; and since no other material was placed by 1st respondent in support of the complaint, a case was not registered.
11. The 1st respondent then filed the present Writ Petition seeking a Writ of Mandamus directing respondent Nos.2 to 4 to register a case against the appellant under the provisions of the Act and to furnish a copy of the FIR to the 1st respondent and to investigate the case forthwith as per law. The appellant, against whom the allegations were made, was not impleaded as a party to the Writ Petition.
12. In the affidavit filed in support of the Writ Petition, the 1st respondent/Writ Petitioner reiterated the allegations made against the appellant in the complaint dt.03.01.2009 lodged by him with 2nd respondent. The 1st respondent contended that the appellant had caste bias against him, indulged in character assassination and gave false and frivolous information denying him good postings. He stated that he had requested the Government of Andhra Pradesh to accord permission to prosecute the appellant for the offences under the Act but the permission was denied. He further stated that two days after the complaint was filed by him, the 4th respondent had made a statement to the Press which was published in the Times of India, Hyderabad Edition referring to the complaint made by him and had stated we are investigating the case, but prima facie, there is no case because Sri K. Aravinda Rao (the appellant) has nothing to do with Sri Sunder Kumar Das (1st respondent) posting and also denied that he was resisting pressure to register the complaint. The 1st respondent contended that this indicated that the 4th respondent herein had made a deliberate attempt to scuttle the investigation; and so, the 4th respondent is guilty of abetment of the offence under Section 10 of the Act.
13. A Counter-affidavit was filed in the Writ Petition by the respondent Nos.2 and 3. These respondents contended that although the 2nd respondent had received the complaint against the appellant to register a case under the provisions of the Act, on perusal of the same, the 2nd respondent found that no material evidence was placed in the complaint submitted by the petitioner to attract the offences under the Act; that on 04.01.2009, 2nd respondent sought legal opinion from the Additional Public Prosecutor Grade-I-cum-Special Public Prosecutor for SC/ST (Prevention of Atrocities) Act cases; the latter had given an opinion on the same day that it is desirable to conduct a preliminary enquiry to ascertain whether the information, if any, given by the appellant against the 1st respondent to the Government, was false and frivolous thereby depriving the 1st respondent of a posting as District In-Charge i.e., Superintendent of Police/Dy. Commissioner of Police (Law and Order) on the basis of his caste for deciding further course of action; basing on the said opinion, preliminary inquiry was taken up by 2nd respondent; the said inquiry revealed that the Government of Andhra Pradesh had issued G.O.Ms.No.62 General Administration (SC.C) Department dt.07.02.2007 (i.e prior to the postings and transfers in question of 2008) pursuant to the order of the Supreme Court of India in Writ Petition (Civil) No.310 of 1996 in and by which the Government constituted a Police Establishment Board comprising of the Director General and Inspector General of Police, Additional Director General of Police (Law and Order), Additional Director General of Police (Administration), Additional Director General of Police (Intelligence) and Additional Director General of Police (CID) for the purpose of postings, transfers, promotions and other service matters of the officers; that he had informed the 1st respondent vide letter dt.26.02.2009 that enough information was not supplied by him to attract the provisions of the Act and that an entry was made in the General Diary for causing inquiry and for collection of information to take necessary action; after completion of inquiry and after having found that allegations made in the complaint by 1st respondent against the appellant did not attract the provisions of the Act since no material was placed by 1st respondent in support of his complaint, he had addressed another letter dt.09.03.2009 to 1st respondent intimating him the reasons for not registering the case. It is also stated in the counter that the 2nd respondent had conducted preliminary inquiry uninfluenced by any statement of any officer/officers and also obtained legal opinion of the Additional Public Prosecutor Grade-I; and that if the 1st respondent had any grievance on account of the action of the 2nd respondent in not registering the complaint, he can approach the competent court.
14. The 4th respondent filed counter contending that receiving complaints, registering cases and investigations, etc. are taken care of by the concerned Station House Officers and his immediate superior; the 2nd respondent had informed the 1st respondent on 26.02.2009 that the complaint lodged by 1st respondent did not contain enough information to attract penal provisions of the Act and therefore, case was not registered and only entry in General Diary of Saifabad Police Station was made to that effect; if, on a reading of a complaint, allegations disclose any cognizable offence, then it would be necessary to register a case and then take up investigation; and as the complaint submitted by 1st respondent did not attract any cognizable offence, the 2nd respondent had informed on 09.03.2009 to 1st respondent that he did not place any material evidence in support of his complaint and so no case was registered. He further contended that the petitioner was aware that all postings, transfers and promotions of I.P.S. cadre officers are made (i.e in 2008) through Police Establishment Board constituted vide G.O.Ms.No.62 dt.07.02.2007 consisting of several officials of which the appellant was only one and that ultimately it was the Government/Chief Minister who finally take decision in such matters. He, therefore, contended that the complaint submitted by 1st respondent did not attract any penal provisions of law to register a case.
15. A reply-affidavit was filed by the 1st respondent to the counter-affidavit of respondent nos.2 and 3 reiterating the submissions in the affidavit filed in support of the Writ Petition. He reiterated the contents of complaint and insisted that the appellant, being a member of Police Establishment Board, had not given objective and fair information about him to the Government on account of his caste bias. He further contended that the 2nd respondent had not examined him for any information and he ought to have filed final report under Section 173 Cr.P.C. He also placed reliance on the judgment of this Court in A.V. Santosh Kumar v. Saijid Hussain and contended that under Section 154 Cr.P.C., registration of FIR was mandatory and that conducting preliminary enquiry into correctness or otherwise of the allegations made by the informant, was untenable.
16. It appears that when the Writ Petition was taken up for hearing by the learned single Judge, the learned Addl. Advocate General (Telangana) , who was representing respondent Nos.2 and 3, gave a complete go-by to the stand taken by respondent nos.2 to 4 in the counter-affidavits filed in the Writ Petition referred to above (that the contents of the complaint dt.03.01.2009 made by 1st respondent against the appellant did not contain enough information to attract the penal provisions of the Act and so no case can be registered against the appellant) and conceded that necessary steps would be taken by respondent Nos.2 and 3 for registering FIR against the appellant and investigate the complaint against him under the Act.
17. On the basis of the said concession, the learned Single Judge allowed the Writ Petition by the impugned order dt.30.12.2014 stating that no further enquiry was needed in view of the concession of the Addl. Advocate General (Telangana); and issued a direction that the competent authority shall register FIR as early as possible, preferably within one month from the date of receipt of the copy of order and take necessary proceedings in accordance with law.
18. Challenging the same, this Writ Appeal is filed by the appellant.
19. As stated above, the appellant has also filed WAMP.No.8 of 2015 seeking leave to file appeal against the order of the learned single Judge since he was not made a party in the Writ Petition filed by 1st respondent.
20. We have heard Sri R. Raghunandan Rao, learned Senior counsel for T. Vinod Kumar, counsel for the appellant, Sri P. Ratnam, counsel for the 1st respondent/Writ Petitioner, Sri A. Sanjeev Kumar, Special Government Pleader for respondents 2 and 3 and Sri C. Naga Raghu, counsel for 4th respondent.
21. It is pertinent to note that the appellant has retired from service of the State of Andhra Pradesh in 2010.
22. From the contentions advanced before us by the parties, the following points arise for consideration in the appeal:
(A) Whether the appellant can be granted leave to file appeal against the orders of the single judge?
(B) Whether the action of the respondents 2-4 in not registering the FIR on the complaint made by 1st respondent is proper and valid?
(C) Whether the learned Addl. Advocate General (Telangana) could have made a concession before the learned single judge, in the facts and circumstances of the case and legal position and contrary to the plea taken in the counter affidavits by respondent no.s2-4 ?
(D) Whether the plea of 1st respondent that 2nd respondent could not deal with the complaint of 1st respondent is correct?
These points are discussed hereunder:
(A) Whether the appellant can be granted leave to file appeal against the orders of the single judge?
23. The counsel for the appellant contended that the 1st respondent while making various allegations against him and seeking reliefs against him including registration of FIR, ought to have added him as a party respondent in the Writ Petition; that he should have been given an opportunity of hearing before the Writ Petition was decided; since an adverse order has been passed directing registration of FIR against him, he is person aggrieved and ought to be granted leave to file the appeal. He contended that prejudice is suffered by the appellant by the order impugned in the appeal since the order was passed contrary to the material on record and without considering whether a case for issuance of a Writ of Mandamus is made out by 1st respondent solely on the basis of a concession by the learned Addl. Advocate general (Telangana) for respondent no.s 2 and 3. He contended that the order of the learned single judge directing registering of the FIR against appellant visits him with serious consequences exposing him to prosecution apart from damaging his reputation, and therefore the appellant is entitled to grant of leave to file appeal against order of learned Single Judge.
24. The counsel for 1st respondent contended that the appellant is not a person aggrieved and ought not to be granted leave to file the Writ Appeal since after registration of FIR, he can always seek for its quashing under Section 482 Cr.P.C.
25. In our view, the totality of circumstances as set out by 1st respondent indicates that the appellant cannot be termed as a busy body having nothing to do with the subject matter of the Writ Petition. The complaint filed by the 1st respondent, which has been rejected for various reasons, is sought to be revived in the Writ Petition seeking a direction to the respondents to register the FIR against the appellant and investigate the same. Undoubtedly, the interests of the appellant would be affected and it is obvious that the impugned order has resulted in prejudice to him.
26. It is a basic tenet of natural justice that a person should be heard before an order adverse to him/his interests is passed by a Court.
27. The facts in A.N. Santhanam v. K. Elangovan decided by the Supreme Court are similar. There the respondent had filed against the appellant a complaint alleging commission of offence by the appellant punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Judicial Magistrate, Thambaram dismissed the complaint after recording the statement of the complainant as well as witnesses. The respondent filed a Revision in the High Court of Madras. The High Court allowed the Revision and held that the complaint filed by the respondent and the statements of witnesses clearly made out a case against the appellant for the offence punishable under Section 3(1)(x) of the Act and set aside the order of the Magistrate, dismissing the complaint. The said Revision was decided by the High Court of Madras without issuing any notice whatsoever to the appellant before the Supreme Court in that case. The Supreme Court held that Section 401 of Cr.P.C., which entitled the High Court to exercise powers of Revision, provided in Sub-Section (2) thereof that no order under Section 401 shall be made to the prejudice of the accused or other person unless he has had opportunity of being heard either personally or by pleader in his own defence and that the rights of the appellant were affected by the order allowing the Revision. It was held that the complaint filed by the respondent which was rejected had been resurrected with a direction to the Magistrate to proceed with the complaint, that the right of the appellant was affected and this had resulted in prejudice to him. The Supreme Court set aside the order of the High Court and remitted the matter back to the High Court to decide afresh after hearing the appellant.
28. In our opinion, the rationale behind the above decision i.e., that a person against whom a complaint was rejected by Magistrate should be given opportunity by a Superior Court which intends to set aside the said decision, would clearly stand attracted to the present case also.
29. Therefore following the above judgment of the Supreme Court, we are of the opinion that the appellant is certainly a person aggrieved; that he has the locus to file this appeal; and is entitled to grant of leave to challenge the order of the learned single Judge. Therefore, WAMP.No.8 of 2015 is allowed and the petitioner in the said WAMP is granted leave to file the appeal against the order dt.30.12.2014 in W.P.No.5245 of 2009.
(B) Whether the action of the respondents 2-4 in not registering the FIR on the complaint made by 1st respondent is valid?
30. The law relating to the duties of a Police Officer to register a First Information Report under Section 154 of the Cr.P.C. is now settled by a Constitution Bench of the Supreme Court of India in Lalita Kumari v. Government of Uttar Pradesh and others . The Court held :
119. what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, 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 FIR. At the stage of registration of FIR, 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 FIR.
.
120.1. The 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:
(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. 120.7. 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. 120.8. 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.(emphasis supplied)
31. Therefore according to the Supreme Court, registration of FIR is mandatory provided that the facts stated in the complaint disclose a cognizable offence. Even the decisions in A.V. Santosh Kumar (1 supra) and T.V.G. Chandrasekhar v. State of A.P., rep. by its Principal Secretary, Home Department and others relied on by counsel for 1st respondent, only reiterate that the contents of the complaint must disclose commission of cognizable offence, and then registration of FIR is mandatory, but not otherwise. In fact they followed the decision in Lalita Kumari ( 3 supra).
32. The stand taken by the respondent nos.2 to 4 in the counter- affidavit is that the complaint dt.03.01.2009 given by 1st respondent did not contain enough information to attract penal provisions of the Act; that legal opinion from the Addl. Public Prosecutor Grade-I cum- Special Public Prosecutor for SC and ST (Prevention of Atrocities) Act cases was sought on 04.01.2009; that he opined that a preliminary inquiry has to be conducted to ascertain whether information given by the appellant against 1st respondent is false and frivolous and resulted in deprivation of posting as District In-Charge to the 1st respondent on the basis of his caste; that preliminary inquiry was taken up which revealed that all postings, promotions would be done by the Police Establishment Board constituted under G.O.Ms.No.62 General Administration (SC.C) Department dt.07.02.2007 consisting of several officials mentioned above; therefore, the 1st respondent was informed by a letter dt.09.03.2009 that the allegations made against the appellant did not attract the provisions of the Act and so case was not registered.
33. As explained by the Constitution Bench in Lalita Kumari (3 supra), and as seen from the principles enunciated therein, information relating to the commission of an offence under the Act should be given to officer-in-charge of a police station. In the present case, complaint dt.3.1.2009 was given by 1st respondent rightly to 2nd respondent. The 2nd respondent came to the conclusion that on perusal of the complaint, it did not disclose commission of a cognizable offence. It was permissible for the 2nd respondent under Lalita Kumari (3 supra) to conduct a preliminary enquiry. He conducted such an enquiry. Such enquiry revealed that the Police Establishment Board consisting of several high officials mentioned above was dealing with postings, transfer, promotions since 2007 and the appellant was not solely responsible for the postings given to 1st respondent. So he did not register an FIR as allegations made in the complaint did not attract the provisions of the Act and then he informed the 1st respondent of the reasons for not registering a case against the appellant.
34. In our opinion, the above actions of respondent No.2 are in conformity with the principles laid down in Lalita Kumari (3 supra) above and it cannot be said that the respondent no.s 2-4 have violated the provisions of the Cr.P.C. or the law laid down by the Supreme Court.
35. Although the counsel for the 1st respondent sought to contend that the 2nd respondent is bound to register an FIR as a cognizable offence was disclosed in the complaint by relying on para 120.4 of the decision in Lalita Kumari ( 3 supra), we do not agree as the said decision requires that in the opinion of the officer, the information must disclose a cognizable offence and since in the present case, the 2nd respondent opined that information furnished in complaint of 1st respondent did not disclose a cognizable offence, he was entitled not to straight away register an FIR.
36. Sec.3(1)(x) of the Act , on which the 1st respondent has placed reliance states:
Sec.3 (1): Whoever, not being a member of Scheduled Caste or Scheduled Tribe .
(ix) gives any false or frivolous information to the public servant and thereby cause such public servant to use his lawful power to the injury or annoyance of a member of a scheduled caste or tribe
37. In the counter affidavit filed by 4th respondent before the learned single judge he stated:
In view of the official procedure prevailing in the Department, I have stated (in the media) that Mr.K.Arvinda Rao, IPS, Addl.Director General of Police, Intelligence Department, Hyderabad alone is not responsible for Mr. Sundar Kumar Dass posting. Because it is a fact and the petitioner is also well aware that a Police Establishment Board has been constituted vide G.O.Ms.No.62 dated 07.02.2007 on the directions of the Honble Supreme Court and the Board constituted with the Director General & Inspector General of Police and Addl. Director Generals of the Police of Law & Order, Administration, Intelligence and C.I.D. The Police Establishment Board takes care of transfers, promotions, postings and other Service Matters of the IPS officers and ultimately, it is the Government/Chief Minister who finally takes a decision in such matters.
38. Since admittedly all transfers, promotions and postings of Officers such as the 1st respondent were being done by the Police Establishment Board since 2007, the question of the Honble Chief Minister having power to decide postings does not arise and so, the question of the appellant influencing the Honble Chief Minister to deny a good posting to the 1st respondent does not arise as well.
39. We are therefore of the opinion that in the facts and circumstances of the case, the 2nd respondent was, as a matter of law and on the facts disclosed to him, entitled to refuse registration of an FIR on the complaint made by 1st respondent against the appellant and no exception can be taken to it.
(C) Whether the Addl. Advocate General(Telangana) could have made a concession before the learned single judge, in the facts and circumstances and legal position and contrary to the plea taken in the counter affidavits by respondent Nos.2-4 ?
40. Admittedly, in the counter-affidavits filed by respondent Nos.2 to 4 a specific contention was raised that the complaint dt.03.01.2009 of the 1st respondent against the appellant did not contain enough information so as to attract the penal provisions of the Act and so an FIR could not be registered against the appellant on the basis of the said complaint. It was their categorical stand that the Police Establishment Board constituted vide G.O.Ms.No.62 dt.07.02.2007 consisting of the Director General and Inspector General of Police, Additional Director General of Police (Law and Order), Additional Director General of Police (Administration), Additional Director General of Police (Intelligence) and Additional Director General of Police (CID) would decide postings, transfers, promotions and other service matters of the officers like the 1st respondent. Thus, it is their plea that the appellant was not the sole person responsible for postings, transfers, promotions, etc. to police officers including the 1st respondent.
41. In the context of the stand of the respondent nos.2 to 4 in the counter-affidavits filed by them, the concession made by the learned Addl. Advocate General in his submissions before the learned Single Judge agreeing that respondents 2-4 would register an FIR and investigate the same, to the prejudice of the appellant, appears thus to be not in conformity with the law declared by the Supreme Court in Lalita Kumari ( 3 Supra) in the context of the facts mentioned in the complaint of 1st respondent. The Special Government Pleader appearing before us for respondent nos.2 and 3 could not give any valid reason, in the light of the law laid down by the Supreme Court, for the concession made on behalf of respondent nos.2 to 4 before the learned Single Judge by the learned Addl. Advocate General.
42. We are of the opinion that such a concession, in the facts and circumstances of the case, is contrary to the law declared by the Supreme Court in Lalita Kumari ( 3 supra) ( as held by us under point (B) above), and cannot be binding on the respondent Nos.2 to 4 and also on the appellant. This point is answered accordingly.
(D) Whether the plea of 1st respondent that 2nd respondent could not deal with his complaint is correct?
43. The counsel for 1st respondent contended that under Rule 7 of the S.Cs. & S.Ts. (POA) Rules, 1995, investigation of an offence committed under the Act should be done by a Police Officer not below the rank of the Dy. Superintendent of Police, who shall complete the investigation within 30 days, that the 2nd respondent could not have conducted any inquiry in the matter and should have registered an FIR straight away so that investigation under Rule 7 can be commenced.
44. The counsel for the appellant, however, contended that there is a distinction between the procedure for verification and preliminary inquiry indicated in Lalita Kumari ( 3 supra) and the procedure indicated in Rule 7. He contended that under Rule 5 of the said Rules, it was no doubt that the 2nd respondent could receive the information relating to the commission of an offence under the Act, but as per Lalita Kumari (3 supra), he could conduct a preliminary inquiry whether the said information itself disclosed the commission of an offence under the Act or not. It is contended that Rule 7 does not deal with the verification and preliminary inquiry contemplated in Lalita Kumari ( 3 supra). He also contended that what was done by 2nd respondent was only a verification and preliminary inquiry as permitted in Lalita Kumari (3 supra) and not an investigation under Rule 7.
45. Rule 5 of the Rules states:
Rule 5. Information to Police Officer in-charge of a Police Station.-
(1) Every information relating to the commission of an offence under the Act, 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 persons giving it, and the substance thereof shall be entered in a book to be maintained by that police station.
(2) A copy of the information as so recorded under sub-rule (1) above 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 in sub-rule (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who after investigation either by himself or by a police officer not below the rank of Deputy Superintendent of Police, shall make an order in writing to the officer in-charge of the concerned police station to enter the substance of that information to be entered in the book to be maintained by the police station.
46. Rule 7 of the Rules states:
Rule 7. Investigating Officer.-
(1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government, Director-General of Police, Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.
(2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director- General of Police of the State Government.
(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution the officer-in-
charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the investigating officer.
47. Sec.2(h) of the Cr.P.C defines the term Investigation as :
2(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
48. We are of the opinion that the reliance by counsel for 1st respondent on Rule 7 is misplaced. We may once again refer to the following passages in Lalita Kumari ( 3 Supra), which clearly lay down that only after registration of FIR, investigation would be done and not before.
31. The FIR is a pertinent document in the criminal law procedure of our country and its main object from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book the guilty.
77. In Ram Lal Narang18, this Court held as under: (SCC pp. 332-34, paras 14-15)
14. Under the CrPC, 1898, whenever an officer in charge of the police station received information relating to the commission of a cognizable offence, he was required to enter the substance thereof in a book kept by him, for that purpose, in the prescribed form (Section 154 CrPC). Section 156 CrPC invested the Police with the power to investigate into cognizable offences without the order of a Court. If, from the information received or otherwise, the officer in charge of a police station suspected the commission of a cognizable offence, he was required to send forthwith a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and then to proceed in person or depute one of his subordinate officers to proceed to the spot, to investigate the facts and circumstances of the case and to take measures for the discovery and arrest of the offender (Section 157 CrPC). He was required to complete the investigation without unnecessary delay, and, as soon as it was completed, to forward to a Magistrate empowered to take cognizance of the offence upon a police report, a report in the prescribed form, setting forth the names of the parties, the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case [Section 173(1) CrPC]. He was also required to state whether the accused had been forwarded in custody or had been released on bail. Upon receipt of the report submitted under Section 173(1) CrPC by the officer in charge of the police station, the Magistrate empowered to take cognizance of an offence upon a police report might take cognizance of the offence [Section 190(1)(b) CrPC]. Thereafter, if, in the opinion of the Magistrate taking cognizance of the offence, there was sufficient ground for proceeding, the Magistrate was required to issue the necessary process to secure the attendance of the accused (Section 204 CrPC). The scheme of the Code thus was that the FIR was followed by investigation, the investigation led to the submission of a report to the Magistrate, the Magistrate took cognizance of the offence on receipt of the police report and, finally, the Magistrate taking cognizance issued process to the accused.(emphasis supplied)
49. In the light of the principles laid down in Lalita Kumari ( 3 supra), , in the context of the SCs & STs (Prevention of Atrocities) Act,1989 , we hold:
(i) If information is supplied to an officer-in-charge of a police station about commission of an offence under the Act, he shall reduce it into writing under Rule 5 and enter the substance of that information in a book to be maintained by that police station. If he refuses to do so, the substance of information may be sent by the complainant to the Superintendent of Police concerned by post. The latter may, after investigation by himself or through an officer not below the rank of Dy. Superintendent of Police direct the officer-in-charge of the police station to enter the substance of that information to be entered in the book to be maintained by that police station.
(ii) If the information received by the officer-in-charge of the police station did not disclose the commission of an offence under the Act, in view of Lalitha Kumari (3 Supra), he is permitted to conduct a verification or preliminary inquiry to ascertain whether such offence is disclosed or not.
(iii) If such preliminary inquiry or verification discloses the commission of an offence under the Act, he shall register the FIR. If not, he can close the complaint and supply copy of the entry of such closure to the complainant giving reasons for closing the complaint and for not proceeding further.
(iv) Only if FIR is registered, investigation under Rule 7 should be done by a police officer not below the rank of Dy.Superintendent of police.
50. In our opinion, the 2nd respondent, on receipt of complaint dt.03-01-2009 of 1st respondent admittedly made entry in the General Dairy for causing inquiry. So Rule 5 was complied with.
51. We hold that the stage for investigation under Rule 7 by a police officer (not lesser in rank than Dy. Superintendent of Police) arises only after registration of the FIR. Where complaint did not disclose commission of an offence attracting the penal provisions of the Act and consequently FIR was not registered, it is not open to 1st respondent to contend that what was done by 2nd respondent amounts to investigation under Rule 7. When the information contained in the complaint did not disclose the commission of an offence under the Act and it was found to be insufficient to attract the penal provisions of the Act, and no FIR has been registered on the said ground, the question of investigation under Rule 7 of the said Rules does not arise for that Rule comes into play only when an FIR is registered on a complaint which discloses commission of an offence under the Act.
52. So we agree with the contention of the counsel for the appellant and reject the contention of counsel for 1st respondent.
53. We are of the opinion that the grievance of the 1st respondent in relation to his postings, which is a service dispute, normally adjudicated before the Central Administrative Tribunal, has been given the colour of an atrocity under the Act. There is force in the contention of the appellants counsel that the filing of the complaint by the 1st respondent against the appellant is an abuse of process of law and that the complaint of the 1st respondent against the appellant, in the facts and circumstances of the case, is not bona fide.
54. Since the learned Single Judge has solely relied on the concession of the learned Addl. Advocate General (Telangana) for allowing the Writ petition and since we have held, after considering the submissions of the parties and the facts and applicable law, that the said concession was not in conformity with the law laid down in Lalita Kumari (3 supra), the order of the learned Single Judge cannot be sustained. In this view of the matter, the Writ Appeal is allowed and the order dt.30-12-2014 in W.P.No.5245 of 2009 is set aside.
55. In the result, W.A.M.P.No.8 of 2015 and W.A.S.R.No.1269 of 2015 are allowed. No costs.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO ___________________ JUSTICE S.V.BHATT Date: 19-01-2015