Court on its own motion v. Chief Secretary to the Government of Himachal Pradesh
2018-03-06
AJAY MOHAN GOEL, SANJAY KAROL
body2018
DigiLaw.ai
JUDGMENT : Sanjay Karol, J. On the basis of a Letter Petition dated 30.10.2017, so addressed by Krishni Devi, resident of village Uvah, P.O. Sianji, Tehsil Sundernagar, District Mandi, Himachal Pradesh, this Court, taking suo moto cognizance, issued notice. 2. Letter petitioner alleged that on 15.10.2017 at about 8.40 a.m., her son Gopal Sharma @ Vicky received a phone call and after informing that he would return in ten minutes, left on his motorcycle towards Mahadev (District Mandi). Since her son did not return and his whereabouts were not known, she went to Police Station, BSL Colony (Sundernagar) to lodge missing report. There, police advised her to wait for two days, suggesting that perhaps he would come back. On 20.10.2017, again she went to lodge the report, when again they asked her to wait and search for him. Again on 23.10.2017, when she went to the Police Station, she was informed that location of the person, on whose call her son had left, was traced to a place somewhere near Manali (District Kullu) and when an endeavour was made to search such person, the mobile phone was found to be switched off. On 26.10.2017, she arranged money and went towards Manali to trace her son. After seeing the footage of the video recorded at various points, she learnt that her son had been to Manali. Lateron, police officials informed that a dead body, which was found near Beas Kund at Rohtang, was cremated on 21.10.2017. Through photographs the body was identified to be that of her son. 3. Significantly, only after much delay, FIR was registered at the concerned Police Station. What is crucial is that allegedly police officials at Police Stations, Sundernagar and Manali refused to register the FIR, purely on the basis of jurisdictional issue. 4. The Superintendent of Police, District Kullu, Himachal Pradesh, filed his affidavit dated 20.11.2017, stating that on 17.10.2017, Police Post Marhi, under Police Station Manali, received an information about an unidentified dead body. Immediately, inquest report was prepared and necessary action taken, after completion of formalities, including conduct of postmortem of the dead body and keeping the same in the mortuary at the Hospital at Manali, information was sent to all concerned. The dead body was handed over to Municipal Council, Manali for cremation, which was, pursuant to orders passed by the Sub Divisional Magistrate, Manali. This was on 21.10.2017. 5.
The dead body was handed over to Municipal Council, Manali for cremation, which was, pursuant to orders passed by the Sub Divisional Magistrate, Manali. This was on 21.10.2017. 5. Further, on 26.10.2017, relatives of the deceased reached Police Station, Manali and identified the person, whose dead body was found, to be Gopal Sharma alias Vickky son of Kamlesh Sharma, resident of Vilalge Uvah, P.O. Sianji, Tehsil Sundernagar, District Mandi, Himachal Pradesh. 6. Also, on 27.10.2017, Smt. Krishni Devi, mother of the deceased, got recorded her statement that her son stood kidnapped by Pankaj Sharma alias Panku and Vineet Kumar alias Vikky. Resultantly, FIR No. 130/17, dated 27.10.2017, stood registered against such persons at Police Station, Sundernagar. Arrests were made and action taken, in accordance with law. 7. On 20.11.2017, the Superintendent of Police, Mandi, District Mandi, Himachal Pradesh has filed his affidavit, informing the Court that investigation revealed complicity of another person, namely Jeewan Kumar, who was also arrested. 8. On 1.1.2018, the Deputy Inspector General of Police, Southern Range, Shimla, filed his affidavit, highlighting the steps taken by the Police officials in effectively and efficiently carrying out the investigation. We may observe that prior thereto, on 18.12.2017, this Court had passed the following interim order: “Having heard learned Counsel for the parties, at this stage, we are of the considered view that interest of justice would be met if some senior level Officers other than Districts Mandi and Kullu were to examine the matter. Learned Amicus states that if at this stage Court is not inclined to have the matter investigated through Central Bureau of Investigation, at least, the State CID can be asked to inquire the same. Keeping in view the overall attending circumstances and independent of the SIT, which already stands constituted, and without reflecting on their conduct, we feel that interest of justice would be served if senior level Officer, i.e. Inspector General of Police, Shimla (South Zone) is to just examine the issue and submit his report, examining the grievance of the letter petitioner and the issue highlighted by the learned Amicus Curiae in his suggestions/report, within two weeks. List on 02.01.2018.” (Emphasis supplied) It is pursuant thereto that the aforesaid affidavit came to be filed. 9. Yet another affidavit of compliance, dated 8.1.2018, stands filed by the Deputy Inspector General of Police, Southern Range, Shimla.
List on 02.01.2018.” (Emphasis supplied) It is pursuant thereto that the aforesaid affidavit came to be filed. 9. Yet another affidavit of compliance, dated 8.1.2018, stands filed by the Deputy Inspector General of Police, Southern Range, Shimla. We are satisfied about the manner in which now the investigation stands conducted. It cannot be said that there is any misdirection, delay or that views of the complainant have not been taken note of. The alleged perpetrators of crime stand identified and arrests made. 10. As such we are of the considered view that no other and further orders are required to be passed in the present proceedings, save and except that on a vital issue and that being with regard to non-registration of the FIR at the first instance, best highlighted by the Deputy Inspector General of Police, Southern Range, in his affidavit dated 8.1.2018, referred to supra, in the following terms: “That as per the statement of Inspector Anil Kumar, SHO PS Manali, Sh Shiv Kumar, the brother-in-law of Gopal Sharma, made a verbal request for registration of an FIR in a matter. However, HHC Sh Khem Raj no. 375 of PS BSL Colony, Sunder Nagar, who was present with the relatives of Sh Gopal Sharma on the spot said that a missing report was registered at PS BSL Colony, Sunder Nagar and it was a continuous offence, therefore, FIR would be registered at PS BSL Colony, Sunder Nagar. As per the statement of Inspector Anil Kumar, SHO PS Manali, Sh Shiv Kumar asked the SHO of PS Manali where should the FIR in the matter be registered. The SHO informed him that the missing report of the deceased was registered at PS BSL Colony, Sunder Nagar and hence an FIR in the matter should be registered there, as the offence of abduction and murder started from the jurisdiction of PS BSL Colony and it continued further towards Manali. On this, the relatives of Sh Gopal Sharma returned from the Police Station. As per the statement of Sh Khem Raj HHC of PS BSL Colony, SHO of Police Station Manali, Sh Anil Kumar told Sh Shiv Kumar that he would be able to register a case after taking an opinion in this matter from District Attorney.
On this, the relatives of Sh Gopal Sharma returned from the Police Station. As per the statement of Sh Khem Raj HHC of PS BSL Colony, SHO of Police Station Manali, Sh Anil Kumar told Sh Shiv Kumar that he would be able to register a case after taking an opinion in this matter from District Attorney. If he says a case is not made out in the jurisdiction of his Police Station, an FIR would not be registered at Police Station Manali and they would have to go to Police Station BSL Colony, Sunder Nagar for registration of a case.” (Emphasis supplied) 11. Law on the question of jurisdiction vis-à-vis registration of FIR is now well settled. Police can register an FIR on commission of a cognizable crime and if on scrutiny or investigation, it is found that the crime was not conducted within the jurisdiction of that Police Station, it can transfer the same to the concerned Police Station. 12. In Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728 , the Apex Court has considered the question of registration of FIR at length and taking note of different Sections of Cr.P.C. observed that the territorial jurisdiction was prescribed under sub-section (1) of Section 156 Cr.P.C. to the extent that a Police Officer can investigate any cognizable case, which a Court having jurisdiction over the local area within the limits of said Police Station would have power to enquire into or try under the provisions of Chapter XIII. However, sub-section (2) of Section 156 Cr.P.C. makes it clear that proceedings of Police Officer in any case cannot be called in question on the ground that the case was one which such Officer was not empowered to investigate. The Supreme Court further observed that Section 170 Cr.P.C. specifically provides that if, upon investigation, it appears to the Officers In-charge of the Police Station that crime was not committed within the territorial jurisdiction of Police Station, that FIR can be forwarded to the Police Station having jurisdiction over the area in which crime is committed. 13.
The Supreme Court further observed that Section 170 Cr.P.C. specifically provides that if, upon investigation, it appears to the Officers In-charge of the Police Station that crime was not committed within the territorial jurisdiction of Police Station, that FIR can be forwarded to the Police Station having jurisdiction over the area in which crime is committed. 13. The Apex Court in Naresh Kavarchand Khatri v. State of Gujarat and another, (2008) 8 SCC 300 , reiterating its earlier view taken in Asit Bhattacharjee v. Hanuman Prasad Ojha, (2007) 5 SCC 786 , held that only in the event an investigating officer, having regard to the provisions contained in Sections 154, 162, 177 and 178 of the Code of Criminal Procedure, arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could he forward the first information report to the police having jurisdiction in the matter. 14. Further, in Rasiklal Dalpatram Thakkar v. State of Gujarat and others, (2010) 1 SCC 1 , the Court observed that without conducting investigation, it would be improper on the part of the Investigating Agency to forward its report with the observation that since entire cause of action, in relation to the alleged offence, had taken place at another place, the investigation be transferred to the Police Station having jurisdiction. The Court was dealing with a case where part of the cause of action had taken place at Ahmedabad, yet the Investigating Agency had submitted its report, stating that since the transaction had taken place in Mumbai, the matter stood transferred to that place. Under these circumstances, the Court observed as under: “31. Section 156(3) Cr.P.C. contemplates a stage where the learned Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad.
It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so. 32. On the materials before him the learned Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. As mentioned hereinbefore, Section 181(4) Cr.P.C. deals with the Court's powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court.” 15. Coming to the instant facts, it has come on record that the complainant (mother of the deceased), had visited the concerned Police Station at Sundernagar, pointing out that her son was missing. It is in this backdrop, officials of the said Police Station were duty bound to have registered the case at the first instance. Rather than asking the complainant to search for her son and come back to the Police Station, forcing her to return for the very same purpose on more than three occasions. The police officials of Police Station, Sundernagar, in our considered view, were negligent to this extent. 16. Under these circumstances, we dispose of the present petition, in the following terms: (a) Investigation of the FIR, in terms of affidavit, dated 1.1.2018, filed by the Deputy Inspector General of Police, Suthern Range, Shimla, be got completed, expeditiously, in accordance with law and the matter taken to its logical end. (b) The Director General of Police, Himchal Pradesh, shall issue directions to all the Station House Officers, within the State of Himachal Pradesh, asking them to take appropriate action for registering the complaint, in accordance with law. The police officials cannot ignore the fact that in rural areas the complainants are not only illiterate but are also not familiar or well versed with the procedures of law.
The police officials cannot ignore the fact that in rural areas the complainants are not only illiterate but are also not familiar or well versed with the procedures of law. (c) Special courses for training the police officials, posted in the Police Stations, be got conducted on periodical basis, with special emphasis on dealing with the complaints of the nature with which we are concerned, more so in the light of observations made by the Apex Court in Satvinder Kaur (supra), Naresh Kavarchand Khatri (supra) and Rasiklal Dalpatram Thakkar (supra). 17. We place on record our appreciation for the assistance rendered by Mr. Rajnish Maniktala, learned Amicus, who, on the instructions of this Court, contacted the letter petitioner and obtained necessary feedback. In view of the above we close the present proceedings. Pending applications, if any, also stand disposed of.