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2012 DIGILAW 25 (AP)

Jidhav Seshu Rao Patel v. Station House Officer, Police Station Bhainsa, Adilabad District

2012-01-06

VILAS V.AFZULPURKAR

body2012
ORDER In this batch of writ petitions, the complaints of the petitioners are of following categories: 1. The complaints filed by the petitioners before the concerned police stations have not been entertained by the Station House Officers; 2. Even if complaints are entertained and FIR's are registered, there is no progress in the investigation; 3. Though the complaints and FIR's are registered, the investigation is conducted in a wholly improper manner without taking any care and thereby some of the petitioners request to entrust the investigation to some other investigating agency. 2. Learned counsel for the petitioners, on the one hand, relied upon Lalita Kumari v. Government of Uttar Pradesh (1) 2009 (2) SCJ 296 = (2008) 7 SCC 164 and Lalita Kumari v. Government of Uttar Pradesh (2) (2001) 11 SCC 331 and contended that on failure of the police officers to act on the complaints, the petitioners have no other alternative remedy except to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 3. Ms. Rachna Waddepalli, learned Assistant Government Pleader for Home, on the other hand, placed reliance upon Sakiri Vasu v. State of U.P. (3) (2008) 2 SCC 409 = AIR 2008 SC 907 and contended that invocation of extraordinary jurisdiction of this Court by the petitioners is wholly uncalled for and that the petitioners should be relegated to avail the remedies under Code of Criminal Procedure, 1973. learned Assistant Government Pleader, in fairness, has also placed before the Court a decision of the learned single Judge of this Court in Sammeta Laxman v. Government of A.P. (4) 2010 (3) ALT (Crl.) 93 (A.P.) = 2010 (3) APLJ 283 = 2011 Crl.L.J. 1884 (WP.Nos.9210 of 2007 and 27524 of 2009 dated 23.02.2010) as well as an order passed by another learned single Judge in V. Yakub Reddy v. Government of Andhra Pradesh in WP.No.26773 of 2011 dated 14.11.2011. 4. In Sammetra Laxman's case (4 supra) the question was whether the police officer had any discretion not to register the case when the contents of the complaint disclose commission of cognizable offence(s). 4. In Sammetra Laxman's case (4 supra) the question was whether the police officer had any discretion not to register the case when the contents of the complaint disclose commission of cognizable offence(s). Learned single Judge of this Court considered the provisions of Cr.P.C elaborately and also noticed ratio in Sakiri Vasu's case (3 supra) and examined the facts of that case to find out whether the police have followed procedure envisaged under Cr.P.C. On facts of that case, on finding that, during hearing of the writ petition, FIR was, in fact, registered, learned single Judge observed that no formal relief need be granted except directing the police to hold dispassionate investigation and file appropriate report before jurisdictional Magistrate and in the overwhelming public interest various directions were given to all Station House Officers and all Superintendents of Police to ensure strict compliance of Section 154 (1) Cr.P.C. 5. In V. Yakub Reddy's case (supra), another learned single Judge of this Court was of the opinion that the decision in Sammeta Laxman's case (4 supra) was contrary to the ratio in Sakiri Vasu's case (3 supra) and in that view felt it desirable that there be an authoritative pronouncement by a Division Bench and referred the writ petition to the Division Bench. 6. When this batch of writ petitions was heard by me, I have examined the decisions of the Supreme Court in Lalitha Kumari's case (1 and 2 supra) as well as Sakiri Vasu's case (3 supra). I have also noticed the latest decision of the Supreme Court in T.C. Thangaraj v. V. Engammal and others (5) 2011 (8) SCALE 120 wherein the Supreme Court reiterated the ratio of Sakiri Vasu's case (3 supra) and while setting aside the order of the High court gave directions to the Superintendent of Police by following the ratio of Sakiri Vasu's case (3 supra). I am, therefore, of the opinion that in view of the two decisions of the Supreme Court in Sakiri Vasu's case (3 supra) and T.C. Thangaraj's case (5 supra), these writ petitions can be disposed of with the directions as noted in the last part of this order. 7. I am, therefore, of the opinion that in view of the two decisions of the Supreme Court in Sakiri Vasu's case (3 supra) and T.C. Thangaraj's case (5 supra), these writ petitions can be disposed of with the directions as noted in the last part of this order. 7. In Lalita Kumari's case (1 supra), the Supreme Court took note of the fact of similar defaults on the part of the police officers in discharge of their duties and hence, proposed directions to the Governments' of all States and Union Territories besides their Director Generals of Police/Commissioners of Police to the effect that if steps are nut taken for registration of FIRs immediately and copies thereof are not made over to the complainants, they may move the Magistrates concerned for filing of complaint petitions for giving directions to the police to register the case immediately upon receipt/production of copy of the orders and make over a copy of the FIR to the complainants within 24 hours of receipt/production of copy of such order. Further directions were also proposed to be issued to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons or the property, which are subject matter of offence and in case the FIRs are not registered within the aforementioned time and/or aforementioned steps are not taken by the police, the Magistrate concerned would be justified in initiating contempt proceedings against such delinquent officers and punish them for violation of its orders, if no sufficient cause is shown and awarding stringent punishment including initiation of departmental proceedings and suspending them in contemplation of the same. 8. The aforesaid proposed directions were reiterated in Lalita Kumari's case (2 supra) to treat them as interim directions to be communicated by the Superintendents of Police to the police officers, posted in every police station in the country, who should act in accordance with the •orders, referred to above and in case of any violation on the part of any police officer, the authority concerned shall take immediate action against that officer. 9. The issue was also considered by the Supreme Court in Sakiri Vasu’s case (3 supra) by interpreting Sections 154(3) and 156(3) Cr.P.C. For the sake of convenience, Sections 154 and 156 Cr.P.C. are extracted hereunder: 154. 9. The issue was also considered by the Supreme Court in Sakiri Vasu’s case (3 supra) by interpreting Sections 154(3) and 156(3) Cr.P.C. For the sake of convenience, Sections 154 and 156 Cr.P.C. are extracted hereunder: 154. Information in cognizable cases:- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 156. Police officer's power to investigate cognizable cases: (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case $hall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned. It would also be useful to extract relevant paragraphs of the judgment of the Supreme Court from Sakiri Vasu's case (3 supra) as under: 17. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned. It would also be useful to extract relevant paragraphs of the judgment of the Supreme Court from Sakiri Vasu's case (3 supra) as under: 17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3). 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? 27. 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C. 10. In T.C. Thangaraj's case (5 supra), a complaint was filed against a police officer, which was registered as FIR at the instance of Superintendent of Police but according to the complainant there was no progress in the investigation whereupon the complainant moved the High Court under Section 482 Cr.P.C. with a prayer to entrust the case to Central Bureau of Investigation for proper investigation. The High Court, however, found that the matter was before a Judicial Magistrate and directed the complainant to appear before the Judicial Magistrate and file protest petition with a further direction to the Judicial Magistrate to consider the protest petition. Complainant thereafter filed another application under Section 482 Cr.P.C. reiterating his prayer for entrusting the investigation to CBI. The High Court was of the opinion that the investigating agency had not done its duty properly and granted the relief by directing entrustment of investigation to CBI and correctness thereof was questioned before the Supreme Court. While accepting the appeal and setting aside the order of the High Court, the Supreme Court recorded its findings that it was not one of the exceptional situations calling for extraordinary power of the High Court to direct investigation by CBI. While accepting the appeal and setting aside the order of the High Court, the Supreme Court recorded its findings that it was not one of the exceptional situations calling for extraordinary power of the High Court to direct investigation by CBI. But noticing that the investigation was not satisfactorily done, it was of the opinion that the High Court should have directed the Superintendent of Police to entrust the investigation to a superior Police Officer under Section 154(3) Cr.P.C., which, in any case, was subject to check by the Magistrate under Section 156(3) Cr.P.C, as held in Sakiri Vasu's case (3 supra) and consequently, the Superintendent of Police was issued directions to entrust the investigation to a superior Police Officer. 11. In addition to the above, the following relevant extracts from the earlier decisions of the Supreme Court are consistent with the view in Sakiri Vasu's case (3 supra). The Supreme Court in All India Institute of Medical Sciences Employees' Union (Regd.) through its President v. Union of India (UOI) (6) (1996) 11 SCC 582 = 1996 (4) ALT 42 (D.N.) observed at paras 4 and 5 as under: 4. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complain/evidence recorded prima facie discloses offence, he is empowered to take cognizance of the offence and would issue process to the accused. 5. In this case, the petitioner had not adopted either of the procedure provided under the Code. In case he finds that the complain/evidence recorded prima facie discloses offence, he is empowered to take cognizance of the offence and would issue process to the accused. 5. In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. The High Court, therefore, though for different reasons, was justified in refusing to grant the relief as sought for. The Supreme Court in Gangadhar Janardan Mhatre v. State of Maharashtra (7) (2004) 7 SCC 768 = 2005 (1) ALT 27.3 (ON SC) held at paras 13 and 14 as under: 13. When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg,) v. Union of India (1996) 11 SCC 582 : 1997 SCC (Crl.) 303. It was specifically observed that a writ petition in such cases is not to be entertained. 14. The inevitable conclusion is that the High Court's order does not suffer from any infirmity. The writ application was not the proper remedy, and without availing the remedy available under the Code, the appellant could not have approached the High Court by filing a writ application. 14. The inevitable conclusion is that the High Court's order does not suffer from any infirmity. The writ application was not the proper remedy, and without availing the remedy available under the Code, the appellant could not have approached the High Court by filing a writ application. The aforesaid view also taken by the Supreme Court in Minu Kumari v. The State of Bihar (8) 2006 (3) ALT (Crl.) 256 (SC) = 2006 (7) SCJ 867 = (2006) 4 SCC 359 was reiterated in Hari Singh v. The State of U.P. (9) 2006 (3) ALT (Crl.) 185 (SC) = 2006 (7) SCJ 419 = (2006) 5 SCC 733 at para 4 as under: 4. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) v. Union of India: (1996) 11 SCC 582 . It was specifically observed that a writ petition in such cases is not to be entertained. The above position was again highlighted recently in Gangadhar Janardan Mhatre v. State of Maharashtra (2004) 7 SCC 768 : 2004 CriLJ 4623 and in Minu Kumari v. State of Bihar (2006) 4 SCC 359 : 2006 CriLJ 2468. 12. In the present batch of cases also any of the three grievances of the complainants, referred to above, can be effectively and completely redressed by applying the provisions of' Sections 154(3) and 156(3) Cr.P.C. as held in Sakiri Vasu's case (3 supra). 12. In the present batch of cases also any of the three grievances of the complainants, referred to above, can be effectively and completely redressed by applying the provisions of' Sections 154(3) and 156(3) Cr.P.C. as held in Sakiri Vasu's case (3 supra). The complainants, if dissatisfied with the response of the Station House Officer, either in registration of the crime or in investigation thereof, can approach the Superintendent of Police concerned under Section 154(3) Cr.P.C., who is empowered to issue appropriate directions regarding registration of the crime as well as investigation. Even if the complainants are dissatisfied with the progress thereof also, they have a remedy to approach the concerned jurisdictional Magistrate for appropriate direction under Section 156(3) Cr.P.C. 13. The Andhra Pradesh Police Manual approved by the Government under G.O.Ms.No.201 Home (Pol.C) Department dated 08.09.2001 contains various guidelines, and procedures in accordance with the provisions of various Laws, Acts and Rules for all the Police' Officers. Chapter 21 of Volume II thereof deals with FIRs to the police stations and the manner in which action is required to betaken thereon, which is extracted hereunder: THE FIRST INFORMATION REPORT (F.I.R.) TO THE POLICE STATION: 409-1. Offences are classified as:- A. Cognizable, and B. Non-Cognizable The Table - I attached to Schedule - I of Cr.P.C. shows the nature of offences in IPC as cognizable or non-cognizable. Table - II specifies the cognizable or non-cognizable nature relating to offences under special and local laws, if there is no specific mention in those acts. 2. Section 154 Cr.P.C. lays down that when an officer incharge of a police station receives information relating to commission of cognizable offence he shall record it verbatim and enter the same in a printed form. If the information is given orally, it should be reduced into writing by him or by his subordinate under his direction and secure the signature or thumb impression of the informant. The information so reduced shall be read over to the informant. After entering the information in the printed form it shall be registered First Information Report (FIR) under appropriate sections of law. A copy of the F.I.R. after registration shall be furnished to the informant free of cost. Refusal to register the information about a cognizable offence is punishable under Section 217 IPC. After entering the information in the printed form it shall be registered First Information Report (FIR) under appropriate sections of law. A copy of the F.I.R. after registration shall be furnished to the informant free of cost. Refusal to register the information about a cognizable offence is punishable under Section 217 IPC. The informant can send the information even by post to the SP of the District who shall register the same as an FIR himself or get it registered if he is satisfied that the contents show a cognizable offence and investigate or direct any subordinate to investigate. The SP also may cause an enquiry against the office who refused to register and take appropriate action. The brief contents of the F.I.R. shall be entered in the General Diary (GD). 3. Information relating to all the cognizable offences should be registered even if they are presented in a police station not having jurisdiction and such registration should not be refused on the point of jurisdiction. After registration it should be transferred to the concerned police station. This type of prompt action will save not only delay in the registration of F.I.R. but also prevent inconvenience to the informant. In addition, the police station where F.I.R. is registered, to begin with, can initiate action without loss of time. 4. The refusal to sign or to put the thumb impression as the case may be on the F.I.R. is an offence under Section 180 IPC. 5. In case of oral complaint, care should be taken to ensure that the FIR contains all the essential facts to avoid contradictions by way of omission when the informant is examined in the court. In view of this when the SHO records the oral statement of the informant, he should put questions and elicit required information from the informant. 6. When ever a report relating to commission of non-cognizable offence is presented in a police station the SHO shall enter the substance in the G.D. and advise the informant to go to court and present it there as he is not competent to register and investigate such cases. But if one of the offences among the contents of the report is of cognizable nature it becomes a cognizable case and he must register and investigate the case. 7. Some times informants directly go to courts and present event cognizable report. But if one of the offences among the contents of the report is of cognizable nature it becomes a cognizable case and he must register and investigate the case. 7. Some times informants directly go to courts and present event cognizable report. If the court endorses such reports or endorses a non-cognizable report when presented to the court such reports on endorsement shall be registered by the SHO and investigated. But when a non-cognizable report is endorsed by the court, the SHO shall not arrest the accused without the orders of the court. 8. Complaints made by telegrams or telephones need not be recorded immediately as F.I.R. unless authenticity is verified or statement has been recorded or a written report obtained from the sender. The factum of receipt of telegram or telephonic information has to be noted in the station general diary (GD). 9. A vague rumour should be distinguished from an oral report and should not be reduced into writing but entered in the G.D. When the information is well founded after immediate enquiry by the SHO about its authenticity, the report should be obtained and the case registered. 10. The SHO can register a cognizable offence on his own information also and need not wait till some body gives report. 14. It is apparent that all these guidelines have been confined only to the Manual and not implemented in letter and spirit leading to such grievances repeatedly corning before this Court either under Article 226 of the Constitution of India or under Section 482 Cr.P.C. In order to obviate the recurrence of such grievances, it is just and necessary to issue directions to reiterate the similar directions given by the Supreme Court in Lalitha Kumari's case (1 supra) and to ensure compliance therewith by the police authorities as under: 1. While declining the Mandamus sought for, the petitioners are granted liberty to approach the Superintendent of Police concerned with regard to any grievance either for non-registration of complaint or for deficiencies in the investigation thereof under Section 154(3) Cr.P.C. and on such complaint, the Superintendent of Police concerned must act forthwith and take necessary remedial measures by issuing appropriate directions to the concerned Police Officer or any other officer. 2. 2. Petitioners shall also have liberty to move the concerned jurisdictional Magistrate, if they are dissatisfied with the acts/ omissions of the police officers in complying with the directions of Superintendent(s) of Police, as referred to above, for necessary effective directions to redress such individual grievance(s) of petitioners/ complainants. 3. After exhausting the remedies, as above, if the petitioners are still aggrieved they can invoke the jurisdiction of the superior Court. 4. The Director General of Police, Andhra Pradesh/Commissioners of Police, as the case may be, shall forthwith issue circular instructions for scrupulous implementation of the directions given by the Honourable Supreme Court in the decisions, referred to above, as well as the directions herein contained read with the extract of the A.P. Police Manual, as above, to sensitize all the Superintendents of Police, and Station House Officers throughout the State to scrupulously follow the directions to ensure redressal of the grievances of the complainants. 5. The Director General of Police shall file a compliance report of direction No.4 above before this Court within one month from the date of receipt of a copy of this order. 6. The Registrar (Judicial) is directed to place the compliance report before the Court as soon as it is received in the Registry. The writ petitions are accordingly disposed of. There shall be no order as to costs.