Bombay High Court
Farook Mohammed Kasim Mapkar vs The Commissioner Of Police on 18 December, 2008
Bench: F.I. Rebello, R.S. Mohite
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1437 OF 2007
Farook Mohammed Kasim Mapkar,
Age 41 years, Occ. Service,
having address at Room No.3,
Arab Building, First floor, Sewree,
Mumbai-400 015.
..Petitioner.
Vs.
1. The Commissioner of Police,
for Greater Mumbai,
Near Crawford Market,
Mumbai 400 001.
2. The Dy. Commissioner of Police,
Zome-IV, Matunga, Mumbai-400019.
3. The Sr. Inspector of Police,
R.A.K. Marg Police Station,
Sewree, ig Mumbai-400 015.
4. State of Maharashtra.
5. Nikhil Kapse,
Sub Inspector of Police,
at present posted with the
Economic Offence Wing,
Commissioner of Police,
Crawford market, Mumbai.
6. Union of India,
(through Central Bureau of Investigation)
Aayakar Bhavan, Marine Lines,
Mumbai-400 020.
....Respondents.
Mr. Vijay Pradhan, Sr. Advocate with Mr. Yusuf
Muchhala, Sr. Advocate with Mr.Sagheer Ahmed Javed
Patel, Shaikh Ahmed, Farooq Ahmed Choudhary along with
Omar K. Shaikh for the Petitioners.
Mr. S.R. Borulkar, Public Prosecutor along with
Mrs.S.D. Shinde , APP. for the State.
Mr. R.B. Raghuwanshi,Addl. Solicitor General with
J.C. Satpute and Afrox Shah for the Respondent No.6
Union of India.
CORAM : F.I. REBELLO & R.S. MOHITE, JJ.
DATE : 18th December, 2008.
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ORAL JUDGMENT :
1. This writ petition is filed by one F.M. Kasim (hereinafter referred to as the "petitioner"). By the said petition, the petitioner seeks a writ of mandamus or any other writ or direction requiring or ordering the respondent No.6 i.e. Union of India through C.B.I. to register an offence under Section 302 of the I.P.C. or any other provision of law which the court may deem fit and proper against Sub Inspector Mr. Nikhil Kapse and such other persons whose action may be revealed in the course of investigation of the offence so registered.
2. The brief facts of the case are as under.
a) On 6.12.1992 Babri Masjid came to be demolished and this was followed by communal riots between Hindu and Muslim communities in various parts of the country including Mumbai city. In the city of Mumbai the police officers, S.R.P. and other forces were deputed on fixed point and bandobast duty.
b) According to the petitioner and as stated in his complaint dated 28.8.2006 addressed to Sr. Inspector of Police, Rafi Ahmed Kidvai Marg Police Station, on 10.1.1990 while the city was in the midst of communal frenzy, the petitioner at about 12.30 in the noon went to Masjid known as Hari Masjid for performing his namaz.::: Downloaded on - 09/06/2013 14:09:30 ::: :3:
While he was within the premises of the masjid, 4-5 police personnel entered the premises of the masjid and commenced indiscriminate firing. The persons who were performing namaz started running helter and skelter and took refuge in various rooms in the masjid. They closed all the windows except one. Through this open window, a police officer by name Nikhil Kapse started firing inside the premises and two persons lost their lives in this firing. One bullet hit the petitioner on his back.
The persons in the room could also hear the firing in the court yard . They also heard the police personnel giving communal ig abuses. After some time the police officers asked the persons who had locked themselves to open the door and threatened that if the doors were not opened they would be broken down. The persons who had locked themselves in, therefore, opened the doors. They were asked to come out with hands held high . One person by name Namazi Shamsuddin had sustained a bullet injury on his leg. While he was attending to his injury PSI. Nikhil Kapse fired on his chest killing him on the spot. In all six Muslim persons lost their lives and seven were injured. The police rounded up several persons and took them to Kidvai Marg Police Station in s Police Van and while the van was on the way to the police station, one police officer informed the police station on wireless that firing was going on in the Masjid premises. When the Police van reached the police station, several persons from Shivsena gathered there ::: Downloaded on - 09/06/2013 14:09:30 ::: :4: and they were shouting slogan that those who want Pakistan will be sent to Kabarsthan. Some of these persons attempted to assault the Muslim persons in the police van and the Muslim persons ran into the police station. At the police station, the persons who were brought in the van were assaulted by the police party.
Within a short time another police van containing 20 to 25 persons arrived there. A person by name Ismail who was grievously injured was brought in this police van and was repeatedly asking for water. The police did not give him water and ultimately this person Ismail died in the police station ig itself. The police recorded the names and addresses of all the persons who were brought in the van and sent the injured persons to K.E.M. Hospital for treatment. In the hospital also some Shivsena persons assaulted the persons brought to the hospital. At the hospital, the petitioner was told that there was no bullet in his body. He decided to get his medical treatment done else where and he informed about his decision to a police officer by name Chavan. The petitioner was then brought back to the Kidvai Marg Police Station and on the next day he was sent to the lock up at Bhoiwada Police Station. No food was given to the petitioner for three days. The police filed cases against about 100 persons under Section 151 of the Cr.P.C. Various other cases were filed by the police against the Muslim persons at Bhoiwada Police Station.
One lady had come with a photograph which was identified ::: Downloaded on - 09/06/2013 14:09:30 ::: :5: by the inmates as Adam Shaikh who was shot in the masjid and whose body has been taken into custody by the police officer Nitin Kapse. In due course the petitioner was released on bail. After his release he took out a x-ray and found that a bullet was still lodged his body. He got himself operated in the Blue Cross Nursing Home and was treated by Dr. Harshad Khan. The said doctor, after giving prior information to the Sr. Police Inspector of Rafi Ahmed Kidvai Marg Police Station, removed the bullet from his body.
c) The record indicates that on the same day i.e. on 10.1.1993 the Sr. Inspector of R.A.K. Marg Police Station registered a crime under C.R.No.17/1993 against about 50 Muslim arrested persons for alleged offence under Section 302, 307, 143, 144, 147, 148, 149 of the I.P.C.
3) It may be stated here that in due course this case was committed to the court of Sessions and numbered as Sessions Case No.1560 of 1994. Out of the 54 persons shown as accused in this case, some persons died during the trial, the prosecution of some of the other accused were separated for various reasons and ultimately out of the 22 persons against whom the trial proceeded, all the accused came to be acquitted by the Sessions Judge vide his judgment and order dated 4.2.2006. The present petitioner was accused No.35 in this case and the trial ::: Downloaded on - 09/06/2013 14:09:30 ::: :6: against him was separated.
4) In the mean while, by a Gazette notification dated 25.1.1993 the State of Maharashtra appointed a Commission headed by Justice B.N. Srikrishana to enquire into the riots and various incidents which occurred during the riots. . The report of Commission was published on 16.12.1998 and taken up for consideration before the Legislative Assembly on 6.8.1998. As per the requirement of the commission of the enquiry the act of State of Maharashtra submitted an action taken ig report in respect of the finding of the Srikrishana Commission. As regards the aforesaid Hari Masjid incident and the role of P.S.I. Nikhil Kapse, who is respondent No.5 in the present petition, the finding of the commission was recorded in Para 24.23 to 24.25 and was as follows:
24.23 : Upon a review of the material on record of C.R.No.17 of 1993 the Commission is inclined to think that the version of police is wholly unbelievable and has been fabricated to support the unjustified firing of large number of rounds which result in killing of six Muslims. Though during the said incident there was a clash between Hindus and Muslims, the police deliberately suppressed the presence of Hindu mob of two thousand to three thousand in order ::: Downloaded on - 09/06/2013 14:09:30 ::: :7: to justify their unjustifiable conduct. The Commission's view is that the role of Sub Inspector, Kapse in the entire incident is condemnable. He not only suppressed the presence of Hindu mob, but also misled the Senior Police Inspector on this count. He also fabricated the record to indicate that all the firing took place outside the Masjid premises.
Since he did not care to offer any explanation despite service of a notice under Section 8B, the Commission has no reason not to accept the testimony ig of public witnesses and conclude that Sub Inspector, Kapse is not only guilty of unjustified firing but also of injuman and brutal behaviour during the incident.
24.24 : The attempt of the Deputy Commissioner of Police Bishnoi to give a clean chit to Sub Inspector Kapse by going to the extent of taking the responsibility of the firing at Hari Masjid on himself, may be bravery beyond the call of duty but does not inspite confidence. When confronted with the statements of police personnel Gajanan Shivram Bhor, Bhikaji Sidhy Bugad, Sham Kashinath Dalvi, Ramchandra Krishna Zanjurde and his own Gunner Bhalchandra Kamble, who all uniformly state that the firing was done by Sub Inspector, Kapse on his own before the ::: Downloaded on - 09/06/2013 14:09:30 ::: :8: arrival of Deputy Commissioner of Police Bishnoi, Bishnoi maintained that all of them must have been mistaken, Bishnoi maintained that all the sixty five rounds fired at Hari Masjid were fired in his presence under his orders, that he ordered the firing and that Sub Inspector Kapse obeyed his orders and directed his mean to open fire. Loyalty to one's subordinates is undoubtedly an excellent trait.
Bishnoi needs to be commanded for asserting his loyalty to Sub Inspector Kapse in the face of contrary ig testimony. The Commission, however, is not willing to accept his uncorroborated testimony against the testimony of all the others, who are themselves police personnel, including his own Gunner Kamble.The clinching piece of evidence is the Control Room Message at 12.53 hours on 10th January 1993 in which message from RAK-I-Mobile to the Control Room is, "on the spot, there is trouble going on between Hindus and Muslims. At Hari Masjid, firing is going on". The glib explanation of Bishnoi about this message is that the wireless operator might not have seen what exactly was going on and might have given incorrect report without verifying the true facts. In other words, according to Bishnoi, only he is true and every one else, was wrong because only he knew ::: Downloaded on - 09/06/2013 14:09:30 ::: :9: the facts correctly. A tall order, even for a Deputy Commissioner of Police.
24.25 : This Police Station has the dubious distinction of having seen four grisly incidents of victims being hacked and their bodies being burnt or attempted to be burnt."
5) The aforesaid finding of the commission were based upon the evidence taken by the commission. The petitioner was also one of the eye witness to the incident which ig occurred at Hari Masjid and as regards the incident he had filed an affidavit affirmed on 12.4.1993 in lieu of his examination in chief.
6) A copy of the aforesaid affidavit has been placed on record and we find that the statement on oath made by the petitioner therein relate to some of the facts as stated by the petitioner in his complaint to the police dated 28.8.2006.
7) That when Srikrishna Commission report was published, there was an all around clamour for the acceptance of the said report by the State Govt. and for the implementation of the recommendations made.
Many NGO.s took up the issue and since their grievances were not redressed to petitions came to be filed in the Hon'ble Supreme Court inter alia praying that the State ::: Downloaded on - 09/06/2013 14:09:30 ::: :10: of Maharashtra should register the cases against the culprits. We are informed that the said petitions are still pending.
8) In this background, on 28.8.2006 the petitioner addressed a complaint to the Sr. Inspector of Police R.A.K. Marg Police Station. After stating all the facts as already mentioned hereinabove the petitioner made a request that this complaint should be treated as an F.I.R. and that the crime should be registered against the Police Inspector Nikhil Kapse and others for offences under ig Section 302 and 307 of the I.P.C. as well as for initiating false cases against the petitioner. Since no action was taken on his complaint, on 14.9.2006 a reminder was sent through an advocate and this reminder stated that if the crime was not registered then proceedings will have to be initiated before the higher court. On 4.10.2006, the petitioner sent a notice addressed to the Commissioner of Police, D.C.P. Zone-4 and the Sr. Inspector of Police, once again calling upon them to register the F.I.R. against the Police Inspector Nikhil Kapse and others in terms of Section-154 of the Cr.P.C. Since no action was taken on the complaint and the remainders, ultimately the petitioner filed the present petition on 15.8.2007.
9) By way of a reply, the State of Maharashtra filed an affidavit affirmed by the Dy. Commissioner of ::: Downloaded on - 09/06/2013 14:09:30 ::: :11: Police Shri. D.T. Shinde, Detection-I, Crime Branch, on 18.9.2007. It was contended therein that after the Srikrishana Commission report two writ petitions came to be filed in the Supreme Court. Both were filed by N.G.O.s. Writ Petition No.527 of 1998 was filed by Action Taken Committee for implementation of Srikrishna Commission Report. The second Writ Petition No.542 of 1999 was filed by the Human Rights Union of Supreme Court's Lawyers. That the prayers in both these writ petitions were for implementation of the report of the commission and for other reliefs including action to be taken against ig the police officers found prima facie to be guilty by the said commission. Both these petitions were pending. That, in these petitions, a statement was made on 7.1.2000 on behalf of the State of Maharashtra that the State of Maharashtra shall refer the said report and conclusions of the said Commission to the Crime Branch, CID, Mumbai for further investigation and action in accordance with law. It was further clarified that the investigation and action to be taken would be uninfluenced by the Action Taken Report submitted by the concerned committee. Accordingly, the Govt. of Maharashtra vide its resolution dated 312.8.2000 constituted a Special Task force for further investigation and action in accordance with law with regard to possible offences concluded by the said Commission report. That thereafter, the Special Task Force scrutinized the entire material available with ::: Downloaded on - 09/06/2013 14:09:30 ::: :12: them and also came to the conclusion that no criminal case could be registered against the respondent No.5.
It was concluded that the respondent No.5 and its staff had carried out the firing in Hari Masjid while performing their duty. We are informed that these conclusions were contained in a report of the Additional Commissioner of Police Special Task Force dated 11.1.2001 and accordingly on 25.5.2001 an affidavit came to be filed in the Supreme Court of India placing these findings before the Apex Court. It was contended that a departmental enquiry was also initiated against respondent No.5 ig and after hearing the parties, the Commissioner of Police Mumbai concluded that the assertions and the allegations were not proved and therefore, respondent No.5 was exonerated in the departmental enquiry. It is submitted that the issue involved in the present petition was already subjudice before the Supreme Court where the aforesaid two writ petitions were pending for final hearing. It was therefore, contended that the present petition be dismissed in limine. It may be mentioned here that the affidavit filed by Mr.K.P.Raghuwanshi, who was a part of the task force is annexed to this affidavit. This affidavit encloses a chart disclosing the steps taken by the State Govt. against 31 police officers. As regards PSI Kapse we find that only statement made in this affidavit is that "after scrutiny of all the record and the case papers we find no criminal case can be ::: Downloaded on - 09/06/2013 14:09:30 ::: :13: registered against him. However, for his certain lapses departmental enquiry has been initiated before the competent authority which is under progress".
10) During arguments a pointed question made to the learned prosecutor as to whether the Special Task Force had recorded the statements of any of the several injured eye witnesses to the Hari Masjid incident, we were informed that no such statements of eye witnesses were recorded. It appears to be common ground that these injured witnesses were sent for medical examination and igthe concerned doctor had treated all the said injured witnesses. The learned Public Prosecutor submitted that the Special Task Force only proceeded on the basis of the version given by the police witnesses.
This, to us indicates a completely one sided investigation by the Special Task Force. It is difficult to countenance an investigation where the statement of none of the injured eye witnesses are recorded and which is confined to reaching a conclusion on the basis of the statements of the police officers who were present at the time of incident when the commission had prima facie indicted some of these officers of having committed serious offences.
11) The learned P.P. brought to our notice that in order to show their bonafides and an unpartisan view, the State of Maharashtra had issued a notification under ::: Downloaded on - 09/06/2013 14:09:30 ::: :14: Section 6 of the Delhi Special Police Establishment Act 1946, on 17.2.2008, according their consent under Section 6 of the said Act for an enquiry/investigation by the C.B.I., into the entire incident as dealt with by the Srikrishna Commission Report Vol.II in Para-24.23 to 24.25 relating to Hari Masjid incident or in relation to the attempts, abatement and conspiracy in relation to or action in connection with the offence of the said case or any other offence committed in the said transaction or arising out the said facts. It is was contended by the learned P.P. Mr. Borulkatr that in view of the said consent, ig the State of Maharashtra was willing to handover the complaint of the petitioner filed on 28.8.2006 and other related papers to the C.B.I. It was contended that it was open to the C.B.I. to register the offence and to investigate into the matters in respect which consent was given.
12) However, on behalf of the C.B.I. an affidavit dated 9.8.2008 affirmed by Mr. R.S. Panwar, Additional S.P. C.B.I. came to be filed. Surprisingly the stand taken by the C.B.I. that it was not in a position to take up the investigation of this case because it was already over burdened with the investigation of other cases and due to acute shortage of man power resources.
That it had a limited number of Investigating Officers
who are already occupied with investigation of other
cases. It was further contended that the matter is more
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than 15 years old and involves simple
investigation.That, as per the information supplied by
the State Govt., Case No.17 of 1993 registered in
respect of the incident of rioting at Hari Masjid has
already been investigated by the local police and the
accused have also been charge sheeted. In that case,
the present petitioner has also been named as an accused
and was being tried in the competent court It was
contended that the State of Maharashtra has got
specialised agencies like ATS, STF, State CID and Crime
Branch which are competent and are resourceful enough to
investigate this ig case. It was contended that the
petitioner has not made out any reason as to why the
investigation of the said case should not be entrusted
to any of the aforesaid special agencies of the State of
Maharashtra. It was contended that merely because
consent was accorded by the State of Maharashtra under
Section 6 of the Delhi Special Police Establishment Act,
it does not become a mandatory statutory duty of C.B.I.
to carry out the investigation in the said case. It was
contended that there was considerable delay for lodging of the complaint in question.
13) It may be stated at this stage that by an order passed by this court in this writ petition on 17.6.2008 the counsel for the petitioner were asked to meet four legal issues as framed by this court. The counsel for the C.B.I. as well as P.P. however, conceded that ::: Downloaded on - 09/06/2013 14:09:30 ::: :16: since there was notification issued under Section 3 of the DSPE Act empowering the C.B.I. to investigate the case under Section 302 of the I.P.C. and since there also existed notification extending the jurisdiction of the C.B.I. to State of Maharashtra and a consent notification issued by the State of Maharashttra under Section 6, it was not necessary to answer these issues specifically. It was also fairly conceded by all counsel that in several cases both the High Courts and the Supreme Court had issued directions to the C.B.I. to take over investigation. Our attention was brought to several casesig in which such directions were granted by this court in exercise of powers under Section 226 and to the fact that in pursuance of which directions C.B.I. had taken up such investigation without any special sanction /approval from the Union of India and had concluded such investigations and filed charge sheets. This position was also supported by the counsel for the petitioner and hence we find that there is no necessity to decide these preliminary legal issues.
14) It is true that merely because the State of Maharahstra has issued a notification under Section 6 of the DSPE Act,1946, it would not be necessarily be mandatory on the C.B.I. to take up the investigation of the case. However, in the present case the C.B.I. has given specific reasons as to why it cannot take up the investigation notwithstanding the consent granted by the ::: Downloaded on - 09/06/2013 14:09:30 ::: :17: State of Maharashtra. We do not find substance in any of the reasons given by the C.B.I. in this regard. We find this to be a case which involves public interest.
The background in which this case arose was communal disturbances in the city of Mumbai in which hundreds of people lost their life and property . The complaint alleges action targeted against the Muslim s by particular political parties. It also alleges illegal action on the part of the police force. It is contended that the complaint has been filed by the petitioner after gross delay on 28.8.2006.We however, find that this is a case ig where the delay in filing the complaint has to be viewed in the backdrop of events. We find that the present complainant was a witness before the Srikrishna Commission and had made similar allegations in an affidavit which he filed before the Srikrishna Commission on 12.4.1993. The affidavit made on 12.4.1993 contained some common facts as stated in the complaint dated 28.8.2006. We find that as regards the Hari Masjid incident, in its report dated 16.2.1998 the Srikrishna Commission, on the basis of analysis of evidence which included evidence of several eye witnesses inclusive of certain police officers and others documentary evidence such as wireless messages, concluded that the firing by the police including Sub Inspector Kapse was unjustified and that the said officer was not only guilty of unjustified firing but also inhuman and brutal behaviour during the incident.
::: Downloaded on - 09/06/2013 14:09:30 ::: :18:We find that Special Task Force formulated to re-investigate this matter did not actually fully reinvestigate the matter but confined itself to statements of the police officers. Admittedly, the statements of the injured eye witnesses including the petitioner were not recorded. The said task force has therefore, proceeded to give a clean chit to its police officers without taking into account the independent material which was available in the form of version given by the injured eye witness. It is an admitted position that they were hundreds of persons present in the masjid at ig the relevant time. It is also an incontrovertible factual position that more than fifty such persons were eye witnesses, as such persons were made accused in the case of rioting promptly registered by the police.
15) Since the CBI has given specific reasons as to why they have not taken this case, it is open to this court to test the validity of those reasons. A bald statement that there are short of staff cannot be a reason for an investigating authority to refuse to investigate a serious crime. We are unable to agree with the contention of the CBI that the case cannot be investigated because about 15 years have lapsed since the incident. Admittedly the eye witness to the said incident including the injured witnesses are very much available for interrogation by the Investigating ::: Downloaded on - 09/06/2013 14:09:30 ::: :19: authority. The C.B.I. itself states the investigation is simple one. If the investigation is indeed simple as contended by the C.B.I. then it should not be difficult for them to conclude the investigation in a short period and with utilisation of minimum resources. The argument of the CBI that the case can be taken up by the police agency of Maharashtra also cannot be accepted. It is evident that the local police station was quick in registering the crime against over 50 Muslim persons.
That case led to the acquittal of all persons who were tried .We find from the record that the case against the petitioner was ig separated not because he was absconding but her has raised certain objections about non recording of proper evidence. This is a case where petitioner has been attempting to secure justice. He appeared before the Srikrishna Commission and the Commission itself has opined that the firing by the concerned police officer was unjustified and that his conduct was inhuman and brutal. These findings are of a sitting Judge of the High Court add great weight and credence to the version given by the petitioner in his complaint.
16) We also disagree with the contentions of the C.B.I. that there is no issue of public importance involved in this case. This is a case which involves the reputation of the Bombay Police and its officers in so far as the allegations are made against their ::: Downloaded on - 09/06/2013 14:09:30 ::: :20: conduct. The case also involves allegations against members of a political party and has under flowing communal currents. In our view these are matters of great public interest in so far as it is the mandate of the constitution that the State maintain and ensures its secular fabric. It is a primary duty of the State to ensure that no community should be left with feeling that they have no forum to address their grievance or a feeling that the law is not uniformally applied to all its citizens. We find that the action taken so far or in this case is a matter of concern and requires urgent redressal.
17. We may state here that law in regard to registration of an FIR has long been crystalised. The Apex Court in the case of Ramesh Kumari Vs. State (N.C.T. of Delhi) and ors. reported in 2006(1) Crimes 229 (SC) relying upon an earlier judgment of the Apex Court in the case of State of Haryana and ors. Vs. Bhajan Lal and ors reported in 1992 Supp. (1) SCC 335 held that the provision of Section 154 of the Cr.P.C.
was mandatory and the concerned officer was duty bound to register the case on the basis of information which disclosed the commission of a cognizable offence. This position of law has subsequently been reiterated by the Apex Court in the case of Prakash Singh Badal and anr.
Vs. State of Punjab and ors. reported in (2007) 1 S.C.C. 1 where in Para 66 and 67 Apex court observed as ::: Downloaded on - 09/06/2013 14:09:30 ::: :21: under.
"66. 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 police officer concerned cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. ig 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 top investigate, subject to the proviso to Section 157 thereof. In case an officer is 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 ::: Downloaded on - 09/06/2013 14:09:30 ::: :22: 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.
67. It has to be noted that in Section 164(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Sections 412(1)(a) or (g) of the Code wherein the ig expressions "reasonable complaint"and credible information" are used.
Evidently, the non qualification of the word "information" in Section 154(1) unlike in Sections 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 imply only the word ::: Downloaded on - 09/06/2013 14:09:31 ::: :23: "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 1'872_ 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 work "information": was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. 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 an information and that information must disclose a cognizable offence".
18) The learned prosecutor drew our attention to the judgment of the Apex Court in the case of Aleque Padamsee and ors. Vs. Union of India and ors.
reported in (2007) 6 S.C.C. 171 wherein the Apex court held that if a person was aggrieved by the inaction of the police officials in registering the FIR, the ::: Downloaded on - 09/06/2013 14:09:31 ::: :24: modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed. We have no doubt that in most cases the filing of the private complaint may be an adequate alternative but in this case where there is prima facie material to indicate that the investigation carried out so far was one sided, the filing of a private complaint may not be substitute for a fair and proper investigation, duty to conduct which is cast upon the State. We find from the facts of the case that the present petitioner has himself been prosecuted and has been striving for last 15 years to get a full ig fair and proper investigation done into his allegations. We find that he participated in the commission and report of the Commission substantially supports the allegations of the petitioner. Serious offences if alleged cannot be left fully and properly investigated merely because there is a lapse of time.
We further find that the investigation made by the Special Task Force, appears to be one sided, insofar as the Special Task Force has not recorded the statements of the injured eye witnesses or other eye witnesses who are admittedly present and has chosen to rely upon the Police, officers against whom allegations were made.
They have not even recorded the statements of various doctors or collected available medical evidence relating to the injuries suffered by various persons at the spot as the result of the police firing. The allegations of these sort ought to have been treated with utmost ::: Downloaded on - 09/06/2013 14:09:31 ::: :25: seriousness and we find that they have not been so treated. In our view, therefore, this is a fit case where matter should be reinvestigated by an independent investigating agency like the CBI. In the net result, we pass the following order.
ORDER
a) Petition is allowed in terms of prayer clause
(a).
b) The State of Maharashtra is directed to hand over the complaint of the petitioner dated 28.8.2006 to the C.B.I. along with all the relevant papers and on the basis of the complaint, C.B.I. is directed to register an offence and to investigate the same. It is clarified that in its investigation, the C.B.I. will not be influenced by any observations made in this order or in the Srikrishna Commission Report. Since there has been long lapse of time, the investigation should be carried out with promptitude and on its conclusion a report in accordance with law should be filed within a period of 6 months from the date of registration of the crime in the court of competent jurisdiction.
::: Downloaded on - 09/06/2013 14:09:31 ::: :26: c) Rule is made absolute accordingly.
d) Petition stands disposed off.
( R.S. MOHITE, J.) ( F.I. REBELLO, J.)
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