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2014 DIGILAW 1181 (BOM)

Priya Gunaji Gaokar v. State of Maharashtra

2014-05-09

ABHAY M.THIPSAY, NARESH H.PATIL

body2014
JUDGMENT : A. M. THIPSAY, J. :- The petitioner is employed in Bhabha Atomic Research Center (for short "BARC") at Trombay. She used to travel from her place of residence to the place of work in the staff bus made available for her and some other employees by the BARC. According to the petitioner, the other employees of BARC who used to travel by the same staff bus used to harass her in a number of ways. That, some of them used to taunt her and used to make various comments which would cause embarrassment to her. The petitioner, therefore, wrote to the Dy. Commissioner of Police, Zone IV complaining about the alleged incidents, and requesting to register a case against the persons named by her. Pursuant to the communication sent by the petitioner to the Dy. Commissioner of Police Zone IV, inquiries were made. The statement of the petitioner was recorded by an Assistant Inspector of Police attached to Trombay Police Station. In the course of the inquiry, statements of all the persons who were named by the petitioner as the culprits and of some others, came to be recorded. Ultimately, the Dy. Commissioner of Police, Zone-IV passed an order relying upon the statements recorded in the course of the inquiry and the opinions expressed by the Sub-Inspector of Police and Inspector of Police of the Trombay Police Station, that the complaint made by the petitioner against the persons named in it was without any substance; and that it had been made by the petitioner mischievously and with the object of harassing the persons mentioned as culprits. However, the petitioner was not informed of this decision taken by the police authorities. Consequently, she was not aware of any such decision. The petitioner sought the relevant information under the provisions of Right to Information Act, and was provided with the relevant information, where after she became aware of the fact that the police authorities had decided not to take any action in the matter. 2. The petitioner has now approached this Court invoking its jurisdiction under Article 226 of the Constitution of India praying for a number of reliefs. 3. 2. The petitioner has now approached this Court invoking its jurisdiction under Article 226 of the Constitution of India praying for a number of reliefs. 3. Considering the nature of challenge and the relief sought for; and the fact that an affidavit in reply had already been filed on behalf of the respondent, by consent, it was decided that the petition should be heard finally at the admission stage itself. Accordingly, Rule was issued, was made returnable forthwith by consent, and petition was heard finally by consent. 4. We have heard Mr. Uday Warunjikar, learned counsel for the petitioner and Mrs. V.V.Pai, leamed Appellant for the State. We have gone through the petition, the annexures thereto as also the counter affidavit filed by Lakhmi Gautam, Dy. Commissioner of Police, Zone VI, Bombay. We have also gone through the affidavit in rejoinder filed by the petitioner. 5. The first prayer of the petitioner {prayer (a)} is that the Registry of this Court be directed not to upload the name and address of the petitioner on the official website of this Court. In the facts and circumstances of the case, we are not inclined to grant any relief as prayed for, vide prayer clause (a). 6. Mr. Warunjikar submitted that the police authorities have acted contrary to law. According to him, the petitioner's communication dated 18th May 2013 addressed to the Dy. Commissioner of Police, Zone IV, clearly disclosed information relating to the offences punishable under section 354 and 354A of the Indian Penal Code (for short "IPC"). He submitted that these offences being cognizable, it was incumbent on the concerned police authorities to have treated the communication as the First Information Report and to have registered a case in respect of cognizable offences on that basis. He submitted that once the ingredients of a cognizable offence were disclosed in the communication made by the petitioner, it was not open for the police authorities not to register a case and hold an inquiry into the matter. 7. The learned APP submitted that extensive inquiries were carried out pursuant to the petitioner's letter dated 18th May 2013 addressed to the Dy. Commissioner of Police. It is submitted that the statement of the petitioner was recorded in the course of the inquiry, and that statements of 19 other persons were also recorded in the course thereof. 7. The learned APP submitted that extensive inquiries were carried out pursuant to the petitioner's letter dated 18th May 2013 addressed to the Dy. Commissioner of Police. It is submitted that the statement of the petitioner was recorded in the course of the inquiry, and that statements of 19 other persons were also recorded in the course thereof. In the counter affidavit filed on behalf of the respondent, it is submitted that the police had held 'preliminary inquiry' in the matter as the petitioner had already made an application to the Women's Cell, Maharashtra State Women's Commission. It is submitted that on making inquiries, the deponent i.e. Dy. Commissioner of Police Lakhmi Gautam concluded that the allegations made by the petitioner were without any substance, and that the petitioner had filed the complaint 'due to anger'. It is also submitted that the decision of not registering the FIR was orally communicated to the petitioner and further, that the petitioner had obtained information under the Right to Information Act. It is suggested in the counter affidavit that since the petitioner was well aware of the decision not to register the FIR on the basis of her communication dated 18th May 2013, it was not necessary to inform her about it in writing. 8. Mr. Warunjikar submitted that the action taken by the police authorities is clearly contrary to law. He submits that the directions given by the Supreme Court oflndia in the case of Lalita Kumari Vs. Govt. of Uttar Pradesh and others, (2014) 2 SCC 1 : [2014 ALL SCR 1893] have been disregarded and violated by the police. 9. We have perused the letter/ communication dated 18th May 2013. Wc find that the petitioner has aI!eged therein that the persons named by her were resorting to various wrongs. The petitioner has alleged in the said letter that certain persons (named by her) used to commcnt on the dress and ornaments worn by her. That. one of the persons would deliberately and in an inappropriate manner touch her hand, kick on her legs etc. That, one of them had gone to her residence and had told many objectionable things about the petitioner to the petitioncr's son. That, one of them use to make obscene gestures. That, one used to deliberately push her while getting down from the bus and/or would pull her 'odhni' from behind. That, one of them had gone to her residence and had told many objectionable things about the petitioner to the petitioncr's son. That, one of them use to make obscene gestures. That, one used to deliberately push her while getting down from the bus and/or would pull her 'odhni' from behind. That, one of them would sing obscene songs by coming near her seat, etc. 10. In our opinion, if these allegations are taken as true, it cannot be said that they do not disclose the ingredients of an offence punishable under section 354 and/or 354A of the IPC. In fact, that is not the stand of the respondent State also. The stand of the respondent State is that these allegations were extensively inquired into, and are found to be false. The stand of the respondent State is that they have held what is termed as a 'preliminary inquiry' and after making extensive inquiries, they have concluded that there was no substance in the allegations levelled by the petitioner and have therefore, declined to register any case. 11. The question is whether the course adopted by the police is proper and legal. 12. The question as to "whether a police officer is bound to register the FIR upon receiving any information relation to the commission of a cognizable offence punishable under section 154 of the IPC or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same" arose for the consideration of Their Lordships of the Supreme Court of India in the aforesaid case of Lalita Kumari, [2014 ALL SCR 1893] (supra). A two Judge Bench of the Supreme Court of India had noticed that the view in this regard, as reflected from various pronouncements of the Supreme Court of India, was not uniform and that. therefore, had requested the Hon'ble the Chief Justice of India to refer the matters involving the said question to a constitution bench of atleast five Judges for an authoritative pronouncement. The Constitution Bench, after referring to several previous judgments of the Supreme Court of India dealing with this issue, concluded that if the information given to the police discloses commission of a cognizable offence, there is no other option but to register an FIR forthwith. The Constitution Bench, after referring to several previous judgments of the Supreme Court of India dealing with this issue, concluded that if the information given to the police discloses commission of a cognizable offence, there is no other option but to register an FIR forthwith. Their Lordships observed : "Other considerations are not relevant at the stage of registration of the FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information exfacie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR" (Para 119 ofthe reported judgment) 13. The conclusions arrived at by their Lordships and the directions given by them have been recorded in paragraph no.120 of the reported judgment. It would be appropriate to reproduce here the relevant Conclusions/ Directions : 120.1 The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3 If the inquiry discloses the commission of a cognizable offence, the First Information Report must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4 (Omitted) 120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6 (Omitted) 120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 14. 120.6 (Omitted) 120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 14. It is not the case of the State/ police authorities that in this case, the information given by the petitioner did not disclose the commission of any cognizable offence. The case is, that the information given was verified by holding a preliminary inquiry and that the information was found to be false. It is clear from the conclusions arrived at by Their Lordships in the case of Lalita Kumari that the police were not entitled to do so. The veracity of the information received could be verified only in the course of investigation and not during any inquiry termed as 'preliminary inquiry'. The extensive inquiries carried out by the police were designed to find out whether there was truth in the allegations levelled by the petitioner, and obviously such a course was not permissible. Moreover, the preliminary inquiry was not concluded within a period of7 days as laid down by Their Lordships in the aforesaid case of Lalita Kumari. 15. Undoubtedly, the police have carried out a detailed inquiry and the concerned officers have come to a conclusion that the allegations levelled by the petitioner are false. However, in our view, such preliminary inquiry, even if extensive, cannot take place of investigation as contemplated in Chapter XII of the Code of Criminal Procedure. There is a marked difference between such inquiries by the police officers and the investigation contemplated by Chapter XII. If the scheme of the provisions in the Code with respect to investigation is seen, it-becomes clear that every investigation which has commenced must conclude by a final report which the officer investigating into the matter is required to submit to a Magistrate. It is well settled that the conclusion arrived at by the Investigating Officer is not binding on the Magistrate and that ultimately, it is the Magistrate who decides as to what action should be taken pursuant to a police report filed on completion of the investigation. It is well settled that the conclusion arrived at by the Investigating Officer is not binding on the Magistrate and that ultimately, it is the Magistrate who decides as to what action should be taken pursuant to a police report filed on completion of the investigation. Even if the police have reported that commission of an offence is disclosed, the Magistrate may not agree with them and would be entitled to pass appropriate orders dropping the prosecution. Similarly, even if the police report (final report) would disclose that no cognizable offence had been committed, it would be open for the Magistrate to disagree with the opinion of the police and take cognizance of the offences which it may appear to him, to have been committed. Thus, in the scheme of the relevant provisions, the ultimate conclusion as to whether any offence is disclosed and whether anyone should be prosecuted for having committed the offence, is to be arrived at by the Magistrate to whom the police are required to submit their report on a conclusion of the investigation. By the method adopted by the police of holding a detailed' inquiry', in place of and instead of 'investigation', the scrutiny of the action taken by the police in the course of investigation and the correctness of their conclusion is prevented from being examined by a judicial officer. Such a course, in our opinion, is therefore, clearly contrary to law. 16. It may not be out of place to refer to section 166A of the IPC which has been brought in force with effect from 3rd February 2013. Clause (c) thereof indicates that the legislature wanted to treat the failure to record the information with respect to certain offences more seriously, and an offence punishable under section 354 of the IPC is one of them. That the information is likely to be false can be no ground for not registering the offence as the police have enough powers and discretion to defer the arrest or not to effect any arrest at all, in cases where the allegations levelled in the FIR are believed to be false. 17. That the information is likely to be false can be no ground for not registering the offence as the police have enough powers and discretion to defer the arrest or not to effect any arrest at all, in cases where the allegations levelled in the FIR are believed to be false. 17. Since the police authorities have acted contrary to the relevant legal provisions and contrary to the law laid down by the Supreme Court of India in the aforesaid case of Lalita Kumari, [2014 ALL SCR 1893] (supra), we think it necessary to exercise the constitutional jurisdiction of this Court to set things right. We wish to make it clear that we have not expressed any opinion on the truth, or otherwise of the allegations levelled by the n petitioner in her communication dated 18th May 2013. Rather, we hold that the conclusion in that regard is to be initially arrived at by the Investigating Agency after carrying out an investigation as contemplated under Chapter XII of the Code and later by the Magistrate to whom the police report i.e. a charge-sheet or final report, would be submitted by the Investigating Officer. 18. In the result, we allow the petition and direct the police to treat the letter dated 18th May 2013 as the First Information Report, and carry out further investigation into the matter in accordance with the provisions contained in Chapter XII of the Code of Criminal Procedure. 19. Petition is allowed in the aforesaid terms and to .the aforesaid extent. Petition allowed.