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2016 DIGILAW 1660 (HP)

Dropti Devi v. State of Himachal Pradesh

2016-08-10

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. 1. The present petition under Section 482 CrPC has been filed by the petitioner seeking direction to the Police to register an FIR under Section 302 IPC against the accused. 2. "Key facts" necessary for the adjudication of the present petition are that deceased Sandeep Kumar was the grandson of the petitioner. He was aged about 18 years. He was student of plus two class in Government Senior Secondary School, Amarpur, District Bilaspur, Himachal Pradesh. On 7.7.2015, he was taken by one Shyam Singh son of Besar Singh resident of village and Post Office Amarpur to Baddi on the pretext that his luggage was lying at Baddi. Petitioner being grandmother of Sandeep Kumar resisted but Shyam Singh managed to take Sandeep Kumar to Baddi in a Truck. On 8.7.2015, at about 5.30 PM, petitioner received an information that her grandson Sandeep Kumar had been murdered at Baddi, District Solan, Himachal Pradesh. Dev Raj, father of Sandeep Kumar, had also died in 2003. Sandeep Kumar is survived by his mother and younger sister Punam Devi. Dead body of Sandeep Kumar was brought from Nalagarh Hospital to Amarpur on 9.7.2015. Cremation was done on 9.7.2015. 3. It is evident from the inquest report that Sandeep Kumar had received injury on his head besides injury on lips. According to the report of the FSL Junga, quantity of ethyl alcohol in the blood was found 120.41 mg%. Cause of death of Sandeep Kumar, as per post-mortem report, was, ‘cardiorespiratory arrest’. Statements of Shri Ram Pal son of Prem Lal, Shyam Kumar son of Besar Singh, Sanjay Kumar son of Sita Ram and Shyam Pal son of Krishan Lal have been recorded. Petitioner made a representation to the Deputy Commissioner, Bilaspur, to look into the matter, vide annexure P-2. 4. Reply has been filed by the State. According to the averments made in the reply, on 8.7.2015, at 5.30 PM, an information was received in Police Station Baddi, that a dead body of some person was brought to CHC Baddi. Rapat No. 56 was entered in the General Diary of Police Station Baddi and Head Constable Neel Kamal No. 06 and Constable Hem Raj No. 806 were immediately sent to CHC Baddi to inquire into the matter. On reaching CHC Baddi, Head Constable Neel Kumar informed PS Baddi that the person brought to CHC Baddi had died. Rapat No. 56 was entered in the General Diary of Police Station Baddi and Head Constable Neel Kamal No. 06 and Constable Hem Raj No. 806 were immediately sent to CHC Baddi to inquire into the matter. On reaching CHC Baddi, Head Constable Neel Kumar informed PS Baddi that the person brought to CHC Baddi had died. SI Rakesh Roy was immediately sent to CHC Baddi and Rapat No. 61 dated 8.7.2015 was entered at PS Baddi in this regard. Thereafter, SI Rakesh Roy after inquiring into the matter, returned to the Police Station Baddi and Rapat No. 79 of arrival was entered at PS Baddi on 8.7.2015. During inquiry conducted by Rakesh Roy, case did not appear to be of murder. On examination of body of deceased a cut wound on his lips was noticed and black coloured substance was found sticking on the hands of the deceased. 5. It has come in the inquest report that deceased had also received head injury. It has come in the reply of the State that on 8.7.2015, after reaching Baljit’s room, after having food, Sandeep (deceased), Shyam Kumar and Ram Pal consumed Charas. Thereafter, Sandeep (deceased) Shyam Kumar and Ram Pal went to Sandholi Nallah to extract Charas from cannabis plants. Later on at 1.30 PM, Shyam Kumar and Ram Pal came back to the room. They again went to Sandholi Nallah and found dead body of Sandeep. 6. Court has gone through the material placed on record and is of the considered view that the SHO of Police Station Baddi, on the basis of material, as discussed herein above, should have registered an FIR under Section 302 IPC. The record reveals that a cognizable offence has been committed. Sandeep Kumar has gone to Baddi and his body was found in a Nallah. He was last seen in the company of Ram Pal and Shyam Kumar. Ram Pal and Shyam Kumar had gone to Sandholi Nallah. They came back to the room and again went to the Nallah when they noticed the body of Sandeep Kumar in the Nallah. 7. Their Lordships of the Hon'ble Supreme Court in Lalita Kumari v. Govt. He was last seen in the company of Ram Pal and Shyam Kumar. Ram Pal and Shyam Kumar had gone to Sandholi Nallah. They came back to the room and again went to the Nallah when they noticed the body of Sandeep Kumar in the Nallah. 7. Their Lordships of the Hon'ble Supreme Court in Lalita Kumari v. Govt. of U.P. reported in (2014) 2 SCC 1 , have held that the provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. Their lordships have also held that action be taken against erring officials who do not register FIR despite disclosure of commission of cognizable offence in the complaint/report. Their lordships have held as under: “47. The language of Section 154(1), therefore, admits of no other construction but the literal construction. 48. The legislative intent of Section 154 is vividly elaborated in Bhajan Lal (supra) which is as under:- “30. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable offence" (as defined Under Section 2(c) of the Code) if given orally (in which case it is to be reduced into writing) or in writing to "an officer in-charge of a police station" (within the meaning of Section 2(o) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Information Report" and which act of entering the information in the said form is known as registration of a crime or a case. 31. 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 concerned police officer cannot embark upon an inquiry 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. 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 to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in 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 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. 32. 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, ‘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 employ only the word “information” without qualifying the said word. 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 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 information and that information must disclose a cognizable offence. 33. 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. 49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the 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. If any information disclosing a cognizable offence is led before an officer in charge of the 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. The provision of Section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. ‘Shall’ 50. The use of the word “shall” in Section 154(1) of the Code clearly shows the legislative intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence. 51. In Khub Chand (supra), this Court observed as under: “7… The term “shall” in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations...” 52. It is relevant to mention that the object of using the word “shall” in the context of Section 154(1) of the Code is to ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in accordance with the provisions of law. 53. Investigation of offences and prosecution of offenders are the duties of the State. For “cognizable offences” a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality. 54. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality. 54. Therefore, the context in which the word “shall” appears in Section 154(1) of the Code, the object for which it has been used and the consequences that will follow from the infringement of the direction to register FIRs, all these factors clearly show that the word “shall” used in Section 154(1) needs to be given its ordinary meaning of being of “mandatory” character. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. It is settled position of law that if the provision is unambiguous and the legislative intent is clear, the court need not call into it any other rules of construction. 55. In view of the above, the use of the word ‘shall’ coupled with the Scheme of the Act lead to the conclusion that the legislators intended that if an information relating to commission of a cognizable offence is given, then it would mandatorily be registered by the officer in-charge of the police station. Reading ‘shall’ as ‘may’ as contended by some counsel, would be against the Scheme of the Code. Section 154 of the Code should be strictly construed and the word ‘shall’ should be given its natural meaning. The golden rule of interpretation can be given a go-by only in cases where the language of the section is ambiguous and/or leads to an absurdity. 56. In view of the above, we are satisfied that Section 154(1) of the Code does not have any ambiguity in this regard and is in clear terms. It is relevant to mention that Section 39 of the Code casts a statutory duty on every person to inform about commission of certain offences which includes offences covered by Sections 121 to 126, 302, 64-A, 382, 392 etc., of the IPC. It is relevant to mention that Section 39 of the Code casts a statutory duty on every person to inform about commission of certain offences which includes offences covered by Sections 121 to 126, 302, 64-A, 382, 392 etc., of the IPC. It would be incongruous to suggest that though it is the duty of every citizen to inform about commission of an offence, but it is not obligatory on the officer-in-charge of a Police Station to register the report. The word ‘shall’ occurring in Section 39 of the Code has to be given the same meaning as the word ‘shall’ occurring in Section 154(1) of the Code. Book/Diary 97. The Code contemplates two kinds of FIRs. The duly signed FIR under Section 154(1) is by the informant to the concerned officer at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:- (a) It is the first step to ‘access to justice’ for a victim. (b) It upholds the ‘Rule of Law’ inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State. (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law. (d) It leads to less manipulation in criminal cases and lessens incidents of ‘ante-dates’ FIR or deliberately delayed FIR. 101. According to the Statement of Objects and Reasons, protection of the interests of the poor is clearly one of the main objects of the Code. Making registration of information relating to commission of a cognizable offence mandatory would help the society, especially, the poor in rural and remote areas of the country. 105. Therefore, reading Section 154 in any other form would not only be detrimental to the Scheme of the Code but also to the society as a whole. Making registration of information relating to commission of a cognizable offence mandatory would help the society, especially, the poor in rural and remote areas of the country. 105. Therefore, reading Section 154 in any other form would not only be detrimental to the Scheme of the Code but also to the society as a whole. It is thus seen that this Court has repeatedly held in various decided cases that registration of FIR is mandatory if the information given to the police under Section 154 of the Code discloses the commission of a cognizable offence. Is there a likelihood of misuse of the provision? 120. In view of the aforesaid discussion, we hold:- (i) 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. (ii) 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. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR 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. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) 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. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:- (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The category of cases in which preliminary inquiry may be made are as under:- (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. (vii) 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. (viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above. 8. Registration of FIR is compulsory/mandatory if the information given to the police under Section 154 discloses commission of a cognizable offence. 9. Accordingly, the petition is allowed. The Superintendent of Police, Baddi Police District is directed to register an FIR under Section 302 IPC within three days of the pronouncement of this judgment. Investigation in the matter shall be concluded within eight weeks from today. Thereafter Challan be put up in the Court, in accordance with law. Matter shall be investigated by an officer not below the rank of Sub Inspector. The Superintendent of Police shall personally supervise the investigation. 10. The Superintendent of Police, Baddi Police District is also directed to take action against the SHO concerned, for non-registration of FIR though, as per material, commission of a cognizable offence was disclosed.