M. K. Velayudhan v. State of Kerala — 1998 DIGILAW 22 (KER)

Judgment :- This Original Petition is filed by a person who alleges that he was sought to be poisoned. According to the petitioner he filed a complaint in that regard before the Sub Inspector of Police. Irinjalakkuda, respondent No. 1 herein. According to the Petitioner since the information given by him was regarding a cognisable offence he bona fide expected that his complaint would be proceeded with in terms of the relevant provisions of the Code of Criminal Procedure. But to his dismay, the petitioner found that the first respondent did not make any enquiry as contemplated. The petitioner therefore filed a petition before the Superintendent of Police. Though the receipt thereof was acknowledged with the information that the same was being forwarded to the Circle Inspector of Police, the petitioner finds that no proper investigation is being taken up or conducted. The petitioner therefore seeks the issue of a writ of mandamus directing the third respondent to conduct an investigation into the allegations made by him in his statement before the first respondent and the third respondent by a senior officer of the Crime Branch, Central Range, Trichur or any other officer nominated in that behalf by the Additional Director General of Police (Crimes), Trivandrum. 2. In the statement filed by the first respondent he submits that when he received the information in writing from the petitioner he registered the same as petition No. 102/97. Apart from that another complaint filed before the Circle Inspector of Police was registered as petition No. 7/AP/PTN/CIH/97. An enquiry was conducted into the above complaint. The first respondent has set out the information he has gathered as a result of his enquiry. According to the first respondent it was crystal clear from the complaint itself that the petitioner had not consumed poison along with the liquor which he had taken either on 3-5-1997 or on 4-5-1997 as claimed by him. The first respondent has also set out that during the enquiry he had come to know that the petitioner had given some amounts to one Unnikrishnan as a loan and was collecting exorbitant interest. Since no evidence was revealed during the enquiry conducted on the complaint, no further action was required and accordingly the complaint was closed. The first respondent has also set out that during the enquiry he had come to know that the petitioner had given some amounts to one Unnikrishnan as a loan and was collecting exorbitant interest. Since no evidence was revealed during the enquiry conducted on the complaint, no further action was required and accordingly the complaint was closed. It is further submitted that if the petitioner still wanted to proceed against any person, the petitioner can straightway file a complaint before the concerned Court and thereby pursue his remedy. 3. Learned Counsel for the petitioner submitted that when a police officer received information relating to the commission of a cognizable offence it was the duty of that officer to take it down in writing if the information is given orally or to receive the written information and immediately enter the substance of that information in the book to be kept by such officer in the form prescribed by the Government in that behalf. Counsel also points out that on recording such information the officer concerned was also bound to give the informant a copy of the statement recorded free of cost. According to counsel for the petitioner this is the scheme of Section 153 of the Code of Criminal Procedure and it is not open to the officer to whom the information as contemplated by Section 154 of the Code is given to treat it as a petition and consign it to the petitions register. Counsel for the petitioner further submitted that after entering such information in the petitions register or if given in writing simply including it in the petitioners register normally no proper investigation is made into the information furnished and quite often the investigation turns out to be one not about the complaint but about the complainant himself. Counsel for the petitioner further submitted that after entering such information in the petitions register or if given in writing simply including it in the petitioners register normally no proper investigation is made into the information furnished and quite often the investigation turns out to be one not about the complaint but about the complainant himself. The learned Government Pleader appearing on behalf of the Government submits that even if information which would come within S. 154(1) of the Code is given the officer concerned has a discretion to investigate further on the basis of that information or not to investigate and there is nothing in Section 154 of the Code curtailing such a discretion the learned Government Pleader tried to argue that even if information was given which fell within Section 154(1) of the Code of Criminal Procedure the Officer was not bound to take it down in writing if the information is given orally or to enter the same into the book to be kept in terms of that provision. He could do so or not do so at his discretion. The learned Government Pleader relied on the observations of the Supreme Court in, Binay Kumar Singh v. State of Bihar, (1996) 10 JT (SC) 79 : (1997 Cri LJ 362) with particular reference to paragraph 9 thereof. 4. Sections 154 to 158 clearly delineate the procedure to be followed by an officer to whom information relating to the commission of a cognizable offence is given. Section 154(1) of the Code does not confer any discretion on the officer concerned regarding the reduction into writing of a complaint orally made and from entering the substance thereof in the book kept by such officer. Similarly if he receives information in writing, there is no discretion in him not to enter the substance of that writing in the book kept for that purpose. Under Section 154(2) the officer is bound to give a copy of the information as recorded by him under Sub-section (1) of Section 154 of the Code to the informant free of cost. There again there is no scope for any discretion in the Police Officer who is receiving the information. Under Section 154(2) the officer is bound to give a copy of the information as recorded by him under Sub-section (1) of Section 154 of the Code to the informant free of cost. There again there is no scope for any discretion in the Police Officer who is receiving the information. Under Section 156 of the Code the police officer is empowered to investigate any congnizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into. Under Section 156(2) of the Code no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Section 157 of the Code lays down the procedure for investigation. Proviso (a) to Section 157(1) provides that when information, as to the commission of any cognisable offence is given against any person by name and the case is not of a serious nature the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot. Under proviso (b) to Section 157(1) if it appears to the officer in charge of a Police Station that there is no sufficient ground for entering on an investigation he shall not investigate the case. Under Sub section (2) of Section 157 he is bound to state in his report his reasons for not fully complying with the requirements of Sub-section (1) of Section 157 and in a case mentioned in Clause (b) of the said proviso the officer shall also forthwith notify to the informant the fact that he will not investigate the case or cause it to be investigated. Thus on this scheme it appears to me that the discretion in the officer is regarding the decision whether he should enter on an investigation on the information received and not about the receipt of the information and acting in accordance with Section 154(1) of the Code on the receipt of that information. In other words, the officer is obliged to comply with Section 154(1) and (2) of the Code on receipt of an information relating the commission of a congnizable offence. In other words, the officer is obliged to comply with Section 154(1) and (2) of the Code on receipt of an information relating the commission of a congnizable offence. But if after looking into it on objective assessment, and not on a subjective assessment the officer finds that no investigation into it is needed, he could certainly act in terms of Section 157 of the Code. There again he has the obligation to state in his report his reasons for not making an investigation or complying with the requirements of Section 157(1) of the Code. On the scheme of these provisions, I am satisfied that when an information regarding cognisable offence is lodged with a police officer, he is obliged to take the same down in writing if it is made orally or receive the complaint in writing and straightway proceed to enter the substance of it in the book kept for that purpose in terms of Section. 154(1) of the Code and also to furnish the informant with a copy of such statement. 5. In, State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 Cri LJ 527), the Supreme Court has clearly indicated the legal position thus. "Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonablness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. In other words, 'reasonablness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that every complaint or information preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be 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 requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information." In the decision in, Binay Kumar Singh's case, (1997 Cri LJ 362) relied on by the learned Government Pleader the Supreme Court has observed as follows : "Under Section 154 of the Code the information must unmistakably relate to the commission of a cognizable offence and it shall be reudced to writing (if given orally) and shall be signed by its maker. The next requirement is that the substance thereof shall be entered in a book kept in the police station in such form as the State Government has prescribed. The next requirement is that the substance thereof shall be entered in a book kept in the police station in such form as the State Government has prescribed. First Information Report (FIR) has to be prepared and it shall be forwarded to the magistrate who is empowered to take cognizance of such offence upon such report. The officer incharge of police station is not obliged to prepare FIR on any nebulous information received from somebody who does not disclose any authentic knowledge about commission of the cognizable offence. It is open to the officer in charge to collect more information containing details about the occurrence, if available, so that he can consider whether a cognizable offence has been committed warranting investigation thereto." In my view this does not in any manner indicate that the officer has the discretion not to take down the complaint in writing (if made orally) or to enter the substance of the complaint in the book kept for that purpose in the police station. After so recording the statements in terms of Section 154 of the Code, the Officer has the discretion to prepare FIR or not to prepare a FIR. Obviously on the scheme of things Section 157 itself provides for this latter contingency. With respect to the learned Government Pleader the observations of the Supreme Court quoted above clearly do not relate to the stage of receiving information but it relates only to the stage of sending up a report or carrying on an investigation on the basis of the information received in terms of Section 154(1) and entered in the book kept in the police station. There is nothing in, Binay Kumar Singh's case, (1997 Cri LJ 362), which runs counter to the observations in, State of Haryana v. Bhajan La], 1992 Supp (1) SCC 333 : (1992 Cri LJ 527), so as to warrant the acceptance of the contention of the learned Government Pleader that the officer concerned has a discretion to decide whether he should take down the information and enter it into the book kept for that purpose or not. 6. 6. I am therefore satisfied that when an information relating to the commission of a cognizable offence is given to an officer, he is bound to act in terms of Section 154(1) and (2) of the Code and he has no discretion in the matter of complying with the requirements of Section 154(1) and (2) of the Code. It is therefore clear that in the present case the first respondent was clearly in error in not receiving the complaint filed by the petitioner and in not entering the substance of it in the book kept for that purpose before taking a decision either to investigate or not to investigate the crime. 7. Learned counsel for the petitioner submitted that there is no strict compliance with the requirements of Section 154 of the Code in various police stations and what is sought to be done is to enter the complaints in the petitions register and occasionally to bring all sorts of pressures on the informant or complainant either to settle the dispute or to withdraw the complaint or information. If this submission be correct, it clearly is a disturbing feature. The way to combat this happening is to insist on strict compliance with Section 154(1) and (2) of the Code. Once such information is recorded, it will necessarily lead to the officer taking a decision on whether he should investigate the crime or not and in proceeding further in accordance with the procedure prescribed by the Code. I think that it is necessary for respondents 3 and 4 to give strict instructions in this regard to the various police officers who are authorised to strictly comply with Section 154(1) and (2) of the Code when an information within the meaning of Section 154(1) of the Code is received by them. I think that it is necessary for respondents 3 and 4 to give strict instructions in this regard to the various police officers who are authorised to strictly comply with Section 154(1) and (2) of the Code when an information within the meaning of Section 154(1) of the Code is received by them. Since I find that this is not an isolated instance of a grievance that Section 154 of the Code is not being complied with and a number of cases come up before this Court complaining that information given is not taken on file and no investigation is conducted or no proper investigation is conducted, I think it appropriate to direct the fourth respondent and also the Director General of Police, Trivandrum to issue an appropriate circular compelling the officers concerned to strictly adhere to the procedure prescribed by Section 154(1) and (2) of the Code, as and when they receive information coming within the scope of Section 154(1) of the Code. 8. Coming back to the case on band, I direct the third respondent to look into the complaint of the petitioner that no proper steps were taken on the information lodged by him and take whatever steps that he may deem necessary in that regard. The Original Petition is disposed of with the above directions. Communicate a copy of this order to the fourth respondent and to the Director General of Police, Trivandrum for compliance. Order accordingly.