V. Joseph Thomas, I. P. S. v. Sabu George — 1997 DIGILAW 477 (KER)

Judgment :- SANKARASUBBAN, J. This writ appeal is filed against the judgment in O.P. No. 10412/1995. The appellant was not a party to the above Original Petition. He filed this Writ Appeal after obtaining leave from the Court. The Original Petition was filed by one Sabu George who is the first respondent in the appeal, for a direction to the third respondent viz., the Circle Inspector of Police, Fort Police Station, Trivandrum to register Ext. P5 complaint made by the original petitioner under S. 154 of the Code of Criminal Procedure and for directing investigation of the crime. The original petitioner in the Original Petition was charge sheeted by the additional Sub-Inspector of Police, Fort, Trivandrum for an offence punishable u/S. 394 of the Indian Penal Code. The allegation was that on 20-1-1993 at 3 am the original petitioner assaulted one Retnakaran near Padmanabha Theatre, Trivandrum and committed robbery of Rs. 2,000/-, a gold chain worth Rupees 3,000/- and a wrist watch worth Rs. 100/- out of the possession of said Retnakaran. Retnakaran sustained injuries as a result of the assault committed by the petitioner. After investigation the complaint was taken to file as C.C. 92/93. Subsequently the Deputy Superintendent of Police, Crime Branch CID filed a report for re-investigation of the case under Section 173(8) of the Code of Criminal Procedure. After obtaining permission from the Court the Police conducted investigation and a report was filed stating that the entire case was false. Copy of the report was served on the said Retnakaran. On the basis of the report. C.C. 92/93 filed against the petitioner was closed. But the protest filed by Mr. Retnakaran was allowed to be proceeded according to law and action as may be taken up. 2. The case of the original petitioner is that the Criminal proceedings taken against him were false and were at the instance of the present appellant and other Police Officers at his behest. According to him at the instance of the appellant he was brought to Trivandrum with Police officials and he was kept in custody illegally. He was also physically assaulted. But to camouflage the entire thing a false case was registered against him. Hence the petitioner filed a complaint which is produced as Ext. P5 before the third respondent alleging offences committed by the appellant and others and to investigate the same. Ext. P5 is dated 2-2-1995. He was also physically assaulted. But to camouflage the entire thing a false case was registered against him. Hence the petitioner filed a complaint which is produced as Ext. P5 before the third respondent alleging offences committed by the appellant and others and to investigate the same. Ext. P5 is dated 2-2-1995. This was done after the Calendar Case 92/93 taken against the petitioner was closed. Thereafter the petitioner sent reminders, Ext. P6 before the D.I.G. of Police and Ext. P6(a) before the City Police Commissioner, Trivandrum. Since no action was taken the present Original Petitioner was filed. In the Original Petition a statement was filed on behalf of the third respondent wherein he contended that action was not taken because C.C. 92/93 was pending. The learned Single Judge disposed of the matter by judgment dated 11th December, 1995. The learned Judge held that the existence of the protest complaint filed against the de facto complainant was not a ground not to record Ext. P5 statement filed by the petitioner. Hence a direction was given to the respondents to record the information contained in Ext. P5 and register a crime on its basis and to investigate the same as contemplated under Chapter XII of the Code of Criminal Procedure. 3. It is against the above judgment the present Writ Appeal has been filed by the appellant. On the basis of the said judgment the third respondent has registered Ext. P5 complaint as Crime No. 32/96. The case is accused No. 1 to others jointly conspired and intimidated the complainant on 9-1-1993, 10-2-1993 and 15-2-1993 at 5.30 a.m. and forcibly took the complainant from his house at Idamattam to the house of the second respondent at Palai. Subsequently he was taken to Thiruvalla Police Station and from there to Thiruvananthapuran Police Station. He was manhandled and kept under illegal custody. But any further proceedings on the basis of the FIR were not proceeded as they were stayed by this Honourable Court in the Writ Appeal. 4. Learned Counsel for the appellant submitted that the impugned judgment should not have been passed without impleading the appellant. The complaint is not true to facts and is made only to harass the appellant who occupies a very high position in the Police force in Kerala. It was further submitted that before Ext. P5 the petitioner had filed Ext. 4. Learned Counsel for the appellant submitted that the impugned judgment should not have been passed without impleading the appellant. The complaint is not true to facts and is made only to harass the appellant who occupies a very high position in the Police force in Kerala. It was further submitted that before Ext. P5 the petitioner had filed Ext. P2 complaint before the City Police Commissioner. Trivandrum. The City Police Commissioner verified through the Circle Inspector of Police. Fort Trivandrum. The Circle Inspector of Police had reported that the entire allegations were false. Another submission was that since the protest complaint against the petitioner was pending, the learned Single Judge was not correct in directing the Police to stay the investigation against Ext. P. 5. We heard Sri Mathai M. Paikedai, counsel for the original petitioner, Sri T. P. K. Nambiar, counsel for the appellant and the Advocate General for the Police Officials. 5. Provisions contained in Section 154 of the Code of Criminal Procedure clearly shows that it is the duty of the police authorities to record a statement filed under Section 154(1). Section 154 of the Code of Criminal Procedure is as follows : "Information in cognisable cases - (1) Every information relating to the commission of a cognisable 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. (2) A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost, to the informant. (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 cognisable 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." If any information regarding commission of a cognisable offence is laid before an Officer in charge of a Police Station satisfying the requirements of Section 154(1), then the Police Officer has no other option but to enter a substance thereof in the prescribed form and register the case on the basis of such information. The Honourable Supreme Court in, State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527), has observed as follows (Paras 31, 32) : "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. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer-in-Charge of a police station satisfying the requirement of Section 154(1) the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information." In this case Ext. P5 complaint has been filed by the petitioner regarding the commission of certain cognisable offence. It is the duty of the police to record the complaint and to register the crime. That duty cannot be waived or avoided. In the above view of the matter we do not see anything wrong in the direction given by the learned Single Judge in directing the police authorities to register Ext. P5 complaint. As a matter of fact, FIR had already been registered subsequent to the judgment of the learned Single Judge. 6. That duty cannot be waived or avoided. In the above view of the matter we do not see anything wrong in the direction given by the learned Single Judge in directing the police authorities to register Ext. P5 complaint. As a matter of fact, FIR had already been registered subsequent to the judgment of the learned Single Judge. 6. Now the next question is regarding the investigation by the police. Investigation has not been proceeded with because of the stay order granted by this Court. The question is can this Court at this stage stay the investigation or direct the investigation to be done in a particular way. The power of investigation is with the police and not with the Court. Regarding the power of the Court to investigate we are reminded of the observations of the Privy Council in Emperor v. Khwaja Nasir Ahmad, AIR 1945 PC 18 : (1945 (46) Cri LJ 413). "............ so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Cr.P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it had not until then." Regarding the power of the police authorities to investigate the Supreme Court decision in State of Haryana v. Ch. In such a case as the present, however, the Court's functions begin when a charge is preferred before it had not until then." Regarding the power of the police authorities to investigate the Supreme Court decision in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527) states as follows (para 54) : "the commencement of investigation by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by S. 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under clause (b) of the proviso to S. 157(1) of the Code". 7. Learned counsel for the appellant submitted that earlier on the basis of Annexure A2 an investigation was made by an Officer and it was found that the allegations were not true. We directed the learned Advocate General to produce the records. On verification, we find that Ext. A2 is only a report of the Circle Inspector against whom also the original petitioner had made the complaint. In Ext. A2 the C.I. of Police has given a clean chit to the appellant. But, as a matter of fact, Ext. A2 was not on the basis of any statement recorded as per S. 154(1). The person who made Ext. A2 report is himself an accused in the complaint. Learned counsel for the appellant further submitted that since the protest complaint is pending, it will not be proper to go on with the investigation of Ext. P5 complaint. We do not think we can enter into that. In State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527) the Supreme Court said (para 62) : "The investigation of a cognizable offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of Constitution." In the above view of the matter we see no reason to interfere with the judgment of the learned single Judge. We direct that investigation into the complaint may be done as expeditiously as possible, at least within a period of three months from the date of receipt of a copy of this judgment. The writ appeal is disposed of as above. Order accordingly.