Sikndra Nawaz Khan son of Md. Uzair Khan v. State of Jharkhand
2017-02-17
RONGON MUKHOPADHYAY
body2017
DigiLaw.ai
ORDER : Heard Mr. H. K. Shikarwar, learned counsel for the petitioner and Mr. Binod Singh, learned S.C. (L & C) for the State. 2. In this writ application, the petitioner has prayed for a direction upon the respondent no. 6 to immediately and forthwith register an FIR as a written report was made to the Officer In-charge of Chouparan Police Station (Respondent No. 6) relating to the commission of cognizable offence. 3. It appears that the petitioner had received some call in his mobiles in which an threating was given to the petitioner of committing his murder. The petitioner seems to have given a written report to the respondent no. 6 and has also provided voice recording of the calls to the respondent authority through Whatsapp. Since no FIR was instituted, the petitioner had filed several representations before the concerned authorities, but in stead of registering an FIR to redress the grievance of the petitioner, a non-FIR was registered and a proceeding was ordered to be initiated under Section 107 of the Cr.P.C. in which the petitioner was made a first party and one Azhar Khan was made second party. Being aggrieved by the non-action on the part of the respondent authority in instituting an FIR, the petitioner has preferred the present writ application. 4. It has been submitted by the learned counsel for the petitioner that along with the written report, sufficient proof was provided to the respondent authorities including the respondent no. 6 about the abusive language and threating given to him over his mobile and since a cognizable case was made out, the police was bound to register an FIR without making a preliminary inquiry. Learned counsel submits that a preliminary inquiry could have been conducted if the allegation made by the petitioner discloses a non-cognizable offence, but since the offence itself is a cognizable offence, the police was bound to register an FIR. In support of his contention, learned counsel for the petitioner has referred to the judgment of the Hon'ble Supreme Court in the case of “Lalita Kumari Versus Government of Uttar Pradesh and others” reported in (2014) 2 SCC 1 . 5. Mr.
In support of his contention, learned counsel for the petitioner has referred to the judgment of the Hon'ble Supreme Court in the case of “Lalita Kumari Versus Government of Uttar Pradesh and others” reported in (2014) 2 SCC 1 . 5. Mr. Binod Singh, learned S.C. (L & C), on the other hand has stated that since the assertion made by the petitioner did not constitute a cognizable offence non-FIR was registered and a proceeding under Section 107 of Cr.P.C. was recommended to be initiated. It has also been stated that a formal investigation was conducted wherein it was disclosed that because of some previous enmity, the petitioner had concocted the allegations and therefore, such circumstances do not entitle registration of an FIR. Submission has been advanced that if the petitioner had any grievance with respect to non-registration of the FIR, the petitioner can very well approach the competent court by filing a complaint petition and if the same is sent to the police under Section 156(3) of Cr.P.C., the police is bound to investigate such offence. 6. The only question for consideration in this writ application is whether if a written report discloses a cognizable offence, is the police bound to institute an FIR or whether a preliminary inquiry can be conducted and thereafter if necessity arises or if such inquiry discloses existence of a cognizable offence, an FIR can be instituted. The question formulated aforesaid has already been laid to rest in view of the judgment in the case of “Lalita Kumari” (supra), wherein it was held as follows: 93. “The object sought to be achieved by registering the earliest information as FIR is inter alia twofold: one, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment, etc. later. 94. Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police, etc. are provided to be written and documented.
later. 94. Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police, etc. are provided to be written and documented. For example, in case of arrest under Section 41(1)(b) of the Code, the arrest memo along with the grounds has to be in writing mandatorily; under Section 55 of the Code, if an officer is deputed to make an arrest, then the superior officer has to write down and record the offence, etc. for which the person is to be arrested; under Section 91 of the Code, a written order has to be passed by the officer concerned to seek documents; under Section 160 of the Code, a written notice has to be issued to the witness so that he can be called for recording of his/her statement, seizure memo/panchnama has to be drawn for every article seized, etc. 95. The police is required to maintain several records including case diary as provided under Section 172 of the Code, General Diary as provided under Section 44 of the Police Act, etc. which helps in documenting every information collected, spot visited and all the actions of the police officers so that their activities can be documented. Moreover, every information received relating to commission of a non-cognizable offence also has to be registered under Section 155 of the Code. : 96. The underpinnings of compulsory registration of FIR is not only to ensure transparency in the criminal justice-delivery system but also to ensure “judicial oversight”. Section 157(1) deploys the word “forthwith”. Thus, any information received under Section 154(1) or otherwise has to be duly informed in the form of a report to the Magistrate. Thus, the commission of a cognizable offence is not only brought to the knowledge of the investigating agency but also to the subordinate judiciary. 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. 102.
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. 102. The Committee on Reforms of Criminal Justice System headed by Dr Justice V.S. Malimath also noticed the plight faced by several people due to non-registration of FIRs and recommended that action should be taken against police officers who refuse to register such information. The Committee observed: “7.19.1. According to Section 154 of the Code of Criminal Procedure, the officer in charge of a police station is mandated to register every information oral or written relating to the commission of a cognizable offence. Non-registration of cases is a serious complaint against the police. The National Police Commission in its 4th Report lamented that the police ‘evade registering cases for taking up investigation where specific complaints are lodged at the police stations’. It referred to a study conducted by the Indian Institute of Public Opinion, New Delhi regarding ‘Image of the Police in India’ which observed that over 50% of the respondents mention non-registration of complaints as a common practice in police stations. 7.19.2. The Committee recommends that all complaints should be registered promptly, failing which appropriate action should be taken. This would necessitate change in the mind-set of the political executive and that of senior officers. *** 7.19.4. There are two more aspects relating to registration. The first is minimization of offences by the police by way of not invoking appropriate sections of law. We disapprove of this tendency. Appropriate sections of law should be invoked in each case unmindful of the gravity of offences involved. The second issue is relating to the registration of written complaints. There is an increasing tendency amongst the police station officers to advise the informants, who come to give oral complaints, to bring written complaints. This is wrong. Registration is delayed resulting in valuable loss of time in launching the investigation and apprehension of criminals. Besides, the complainant gets an opportunity to consult his friends, relatives and, sometimes even lawyers and often tends to -exaggerate the crime and implicate innocent persons. This eventually has adverse effect at the trial.
This is wrong. Registration is delayed resulting in valuable loss of time in launching the investigation and apprehension of criminals. Besides, the complainant gets an opportunity to consult his friends, relatives and, sometimes even lawyers and often tends to -exaggerate the crime and implicate innocent persons. This eventually has adverse effect at the trial. The information should be reduced in writing by the SHO, if given orally, without any loss of time so that the first version of the alleged crime comes on record. *** 7.20.11. It has come to the notice of the Committee that even in cognizable cases quite often the police officers do not entertain the complaint and send the complainant away saying that the offence is not cognizable. Sometimes the police twist facts to bring the case within the cognizable category even though it is non-cognizable, due to political or other pressures or corruption. This menace can be stopped by making it obligatory on the police officer to register every complaint received by him. Breach of this duty should become an offence punishable in law to prevent misuse of the power by the police officer.” 103. It means that the number of FIRs not registered is approximately equivalent to the number of FIRs actually registered. Keeping in view the NCRB figures that show that about 60 lakh cognizable offences were registered in India during the year 2012, the burking of crime may itself be in the range of about 60 lakhs every year. Thus, it is seen that such a large number of FIRs are not registered every year, which is a clear violation of the rights of the victims of such a large number of crimes. 104. Burking of crime leads to dilution of the rule of law in the short run; and also has a very negative impact on the rule of law in the long run since people stop having respect for the rule of law. Thus, non-registration of such a large number of FIRs leads to a definite lawlessness in the society. 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.
Thus, non-registration of such a large number of FIRs leads to a definite lawlessness in the society. 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. 115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. 119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of 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 given ex facie 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.” 7.
At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie 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.” 7. Thus a plain reading reading of the judicial pronouncement as quoted above would reveal that at the stage of the registration of the FIR, information has only to be seen as to whether it discloses any cognizable offence or not. In the present case, a preliminary inquiry has been conducted as has been stated in the counter affidavit and thereafter non-FIR no. 71/107 was registered and recommendation was made for initiating a proceeding under Section 107 of Cr.P.C. There was no occasion for the police to conduct a preliminary inquiry as the offence which has been alleged by the petitioner does discloses a cognizable offence and on the face of such allegation, the respondent no. 6 was bound to register an FIR and proceed with the investigation. In such circumstances, therefore, and in view of the mandate as laid down by the Hon'ble Supreme Court, this writ application is disposed of with a direction to the respondent no. 6 to register and institute an FIR and thereafter to proceed with the investigation in accordance with law. 8. This application stands disposed of with the aforesaid direction.