WP/35368/2013 of A.V. Santosh kumar Vs Mr.Saijid Hussain, on 30 December 2013

ORDER:

This Writ Petition is filed for a mandamus to declarethe inaction of the police in registering a F.I.R. on the reportgiven by the petitioner on 16.11.2013, as illegal andarbitrary.

I have heard the learned Counsel for the petitioner andthe learned Assistant Government Pleader for Home.

The petitioner averred that he joined as a shareholderin Delta Cabs Company, by depositing Rs.1,00,000/- videState Bank of India cheque No.247491 towards his sharecapital, that respondents 1 and 2 are the partners of the saidDelta Cabs Company and they have entered into anagreement with the petitioner on 06.05.2012. Asrespondents 1 and 2 allegedly absconded with thecompany funds and are not paying interest on the petitioner’s capital amount or profit in the business, thepetitioner has lodged a report on 11.11.2013 and also on16.11.2013 against respondents 1 and 2 for offences underSections 420, 120-B, 406 and 409 I.P.C. As F.I.R. has notbeen registered even after expiry of more than one month,the petitioner filed this writ petition.

This Court has ordered notice to the officialrespondents through the learned Assistant GovernmentPleader for Home. The case underwent two adjournments. Today, at the hearing, the learned Assistant GovernmentPleader for Home, on instructions, submitted thatrespondent No.6 has registered the F.I.R. on 13.12.2013i.e., after the case was last adjourned on 11.12.2013.

To the Court’s query made during the hearing on18.12.2013, on the inordinate delay in registering the F.I.R.,the learned Assistant Government Pleader, based on thewritten instructions, submitted that the reason for the delayin respondent No.6 registering the F.I.R. is that he hasconducted preliminary enquiry into the correctness orotherwise of the allegations made by the petitioner in hisreport. Indeed, this procedure adopted by respondent No.6is not only contrary to the procedure laid down underSection 154 of the Code of Criminal Procedure, 1973 (forshort “the Code”) and also by a catena of judgments of theApex Court as well as this Court. The case was thereforeadjourned for filing counter-affidavit by respondent No.6.

Respondent No.6 has accordingly filed a counter affidavit on 19.12.2013 wherein he has inter alia stated asunder:

“It is respectfully submitted that it is a fact that thepetitioner herein has sent a complaint dated16.11.2013 to the Station House Officer,Narayanaguda Police Station, Hyderabad throughpost stating that Mr. Sajid Hussain and Mr. AhmedHussain who are the partners of DELTA CABS Pvt.Ltd., are absconding with company funds and notpaying the interest of the capital amount and profit ofthe business as per the terms and conditions of theagreement dated 2.6.2012.

It is respectfully submitted that although sincereefforts were being made to trace out the originalcomplaint dated 16.11.2013 sent by the petitionerherein by post, the same could not be traced andhence this respondent did not initiate any action uponit immediately, for which I sincerely tender myunconditional apology to this Hon’ble Court.”

The petitioner filed rejoinder wherein he has pleaded that he has sent the report to respondent No.6 on11.11.2013 and 16.11.2013 by Speed Post and that afterseeing the counter affidavit, the petitioner’s counselsubmitted a representation to the Chief Post Master,General Post Office, Hyderabad, on 19.12.2013 forfurnishing delivery particulars of the Speed Post and that theinformation furnished by the Chief Post Master, GeneralPost Office, Hyderabad, showed that the postal cover wasdelivered to the address of respondent No.6 on 12.11.2013. The petitioner filed a copy of the said communication issuedby the office of the Chief Post Master, General Post Office,Hyderabad on 21.12.2013. From the abovementioned letter addressed by the Chief Post Master, it is establishedbeyond any cavil of doubt that Narayanaguda PoliceStation, of which respondent No.6 is the Sub-Inspector ofPolice, has received the petitioner’s first report dated11.11.2013 on 12.11.2013 itself.

As noted by this Court, on 18.12.2013, the learnedAssistant Government Pleader has reported to the Court oninstructions that the reason for the delay in registering theF.I.R. by respondent No.6 was the holding of preliminaryenquiry. When this Court has expressed its strong views onthe said procedure stated to have been followed byrespondent No.6 contrary to the well settled legal position,respondent No.4 has changed the stand in the counteraffidavit by vaguely pleading that the report stated to havebeen sent by the petitioner was misplaced. However,unwittingly, respondent No.6 has admitted in paragraphNo.3 that the petitioner has sent a complaint dated16.11.2013. From these severe contradictions in the standof respondent No.6, it is evident that he is trying to cover uphis conduct of keeping the report pending without registeringthe crime though its contents disclosed commission ofcognizable offence. From the letter addressed by the officeof the Chief Post Master, General Post Office, Hyderabad, tothe Counsel for the petitioner, referred to above, I have noreason to doubt that respondent No.6 has received thereport as far back as 12.11.2013.

Under Section 154(1) of the Code, every information relating to the commission of a cognizable offence, if givenorally to an officer in charge of a police station, shall bereduced to writing by him or under his direction, and be readover to the informant; and every such information, whethergiven in writing or reduced to writing as aforesaid, shall besigned by the person giving it, and the substance thereofshall be entered in a book to be kept by such officer in suchform as the State Government may prescribe in this behalf. Under sub-section (2), a copy of the information as recordedunder sub-section (1) shall be given forthwith, free of cost, tothe informant.

In State of Haryana v. Bhajanlal[[1]],the Apex Court in

unequivocal terms held that it is the duty and obligation ofthe officer-in-charge of a police station to register the F.I.R.,if the contents of the information reveal commission of acognizable offence. It is further held that it is not part of theduty of to the police to hold an enquiry, preliminary orotherwise, in order to ascertain the veracity of the truth orotherwise of the contents of the information. It is instructiveto reproduce the relevant part of the judgment, at paras 32and 33, hereunder :

“ …. An overall reading of the codes makes itclear that the condition which is sine qua non forrecording a first information report is that there mustbe an information and that information must disclosea cognizable offence.

It is, therefore, manifestly clear that if anyinformation disclosing a cognizable offence is laidbefore an officer in charge of a police stationsatisfying the requirements of Section 154(1) of the Code, the said police officer has no other optionexcept to enter the substance thereof in theprescribed form, that is to say, to register a case onthe basis of such information.”

Dealing with a similar situation, in Sammeta Lakshman Vs. Government of Andhra Pradesh[[2]],whilerepelling the plea advanced on behalf of the State that thePolice cannot straightaway register an FIR without making apreliminary enquiry into the truth or otherwise of theallegations, I made a thorough analysis of the provisions ofSection 154 Cr.P.C. with reference to the law laid down bythe Supreme Court in Bhajan Lal (1-supra) and held asunder :

“From the discussion undertaken above, theinescapable conclusions that emerge are that Section-154(1) mandates the police officer incharge of apolice station to register FIR, if he receivesinformation relating to commission of a cognizableoffence. He is not vested with any discretion whetherto register or not to register a case.Prior enquiry forregistration of FIR is a concept alien to the procedureadumbrated under the Code. The police officercannot hold such an enquiry to ascertain the truth,credibility or otherwise of the allegations contained inthe information. After registering the case, the policeofficer is bound to follow the procedure prescribedunder Section 157. As prescribed in the Manual,refusal to register a case pertaining to commission ofa cognizable offence constitutes an offence underSection 217 IPC(Public servant disobeying directionof law with intent to save person from punishment orproperty from forfeiture).

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… It requires no reiteration that in a society weddedto the constitutionalism and democratic principles ofgovernance, the legitimate grievances of a commonman shall not be allowed to remain a cry in thewilderness. While the executive does not need to bereminded of their basic duties, even when it is doneso by the Constitutional Courts when situationsimpelled them, the former does not appear to betaking the wake up calls, leading to a situation wherethey are repeating the same illegalities again andagain. A trend of late is clearly noticeable that theprecedential value of the Courts’ verdicts rendered inpublic law field are treated as confined to the cases inparticular in which they are given. Are observationsmade and findings rendered while disposing of thecases involving issues of general public importanceintended to be mere incantations? Certainly not. Thehigher administrative echelons need to show fargreater degree of sensitivity to the views of theConstitutional Courts to prevent repetition ofillegalities. They would also do well to realize that theirduty does not end with issuing executive instructionsor administrative circulars, but extends to ensuringtheir implementation in letter and spirit.

Whatever Section 154 of the Code envisages isreflected in the Manual referred to above. Whattroubles the mind of this Court is when the position isso clearly stated in the Manual, where is the room forthe police personnel at the ground level to continue todefy the law; that how the superior officers arecondoning the faults committed and repeated by theirsubordinates time and again? Are the higher officialsyielding to the temptation of protecting their erringsubordinates instead of showing absolute loyalty tothe Constitution, the suprema LEX and the Lawsoperating under its fold? Did no unit head ever findone instance of the Station House Officer failing toregister a case and, if so, whether any Station HouseOfficer was prosecuted for the offence under Section217 IPC? (Emphasis added)

in Lalitha Kumari Vs.

Very recently, the Apex Court,

Government of Uttar Pradesh[[3]],once again reiterated thelegal position.

While dealing with a case similar to the one on hand,in T.V.G. Chandrasekhar Vs. State of Andhra Pradesh,represented by its Principal Secretary, HomeDepartment, Secretariat, Hyderabad[[4]],I have held asunder :

“As recent as 12-11-2013, the Apex Court inLalitha Kumari (2-supra) has reiterated the legalposition in no uncertain terms and gave the followingdirections :

(i) Registration of FIR is mandatory under Section154 of the Code, if the information disclosescommission of a cognizable offence and nopreliminary enquiry is permissible in such asituation.154 of the Code, if the information disclosescommission of a cognizable offence and nopreliminary enquiry is permissible in such asituation.

(ii) If the information received does not disclose acognizable offence but indicates the necessityfor an inquiry, a preliminary inquiry may beconducted only to ascertain whether cognizableoffence is disclosed or not.

(iii) If the inquiry discloses the commission of acognizable offence, the FIR must be registered. In cases where preliminary inquiry ends inclosing the complaint, a copy of the entry ofsuch closure must be supplied to the firstinformant forthwith and not later than one week. It must disclose reasons in brief for closing thecomplaint and not proceeding further.

(iv) The police officer cannot avoid his duty ofregistering offence if cognizable offence isdisclosed. Action must be taken against erringofficers who do not register the FIR if informationreceived by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the informationreceived but only to ascertain whether theinformation reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on thefacts and circumstances of each case. Thecategory of cases in which preliminary inquirymay 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/lachesin initiating criminal prosecution, for example,over 3 months delay in reporting the matterwithout satisfactorily explaining the reasonsfor delay.in initiating criminal prosecution, for example,over 3 months delay in reporting the matterwithout satisfactorily explaining the reasonsfor delay.

The aforesaid are only illustrations and notexhaustive of all conditions which may warrantpreliminary inquiry.

(vii) While ensuring and protecting the rights of theaccused and the complainant, a preliminaryinquiry should be made time bound and in anycase is should not exceed 7 days. The fact ofsuch delay and the causes of it must bereflected in the General Diary entry.accused and the complainant, a preliminaryinquiry should be made time bound and in anycase is should not exceed 7 days. The fact ofsuch delay and the causes of it must bereflected in the General Diary entry.

(viii) Since the general Diary/Station Diary/DailyDiary is the record of all information received in apolice station, we direct that all informationrelating to cognizable offences, whetherresulting in registration of FIR or leading to aninquiry, must be mandatorily and meticulouslyreflected in the said Diary and the decision toconduct a preliminary inquiry must also bereflected, as mentioned above.” (Emphasisadded)

I am, indeed, unable to comprehend as to whythe Police in the State have been turning a blind eyeto the above well settled legal position and forcing theinnocent citizens to resort to invoking the extraordinary jurisdiction of this Court under Article226 of the Constitution of India. The experience ofthis Court reveals that on an average, 5 to 10 casesare being filed everyday with the grievance that thePolice have not been registering cases even thoughthe complaints disclose the commission of cognizableoffences. This case on hand is only a smallillustration of the problem of huge magnitude beingfaced by the general public of the State. This Courtwonders as to how many more Judgments areneeded to make the Police force to realise theirstatutory obligation enjoined on them by Section 154Cr.P.C. Each time when they are caught on thewrong foot in the Writ Petitions, they seek apologiesof the Court and request for closing of the WritPetitions by stating that the grievance of thepetitioners is redressed by registering of the cases. The victims are vexed and this Court is disgusted withthis attitude of the Police. It is because of this reasonthat this Court has felt it appropriate to summonrespondent Nos.3 and 4 to the Court and directedthem to explain the reason for their failure to registerthe FIR, though admittedly, the complaint filed by thepetitioner disclosed the commission of a cognizableoffence.”

This Court has given directions to the Director General ofPolice to take stern measures against the Station HouseOfficers for not registering F.I.Rs. where the complaintsdisclosed commission of cognizable offences by issuing aCircular.

As a result of the indifferent approach of the Police tothe law of the land, the victims are faced with the eventualityof approaching this Court by spending huge money as wellas their precious time. The present case is a paradigm ofthe general trend of the Police. The oft-repeated dicta of this

Court in cases of this nature has not been bringing anychange in the mindset of the police. A situation has come toa pass where every report given to the Police has to befollowed by a writ petition under Article 226 of theConstitution of India. This none too happy situation is beingbrought about by the incorrigible attitude of the Police infailure to dischare their statutory obligation cast on themunder Section 154 of the Code. Faced with this situation,this Court finds it proper that respondent No.6 is saddledwith costs for the inordinate delay of 30 days in registeringthe F.I.R., though undoubtedly its contents constituted acognizable offence under Section 420 I.P.C. Accordingly,respondent No.6 shall pay Rs.500/- (Rupees Five Hundredand only) per day to the petitioner from 12-11-2013 till12.12.2013 from his personal funds within two weeks fromthe date of receipt of this order. The payment of these costsshall be entered in the Service Register of respondent No.6.

Subject to the above directions, the Writ Petition isdisposed of.

As a sequel to the disposal of the Writ Petition, WPMPNo.43947/2013 filed for interim relief is disposed of asinfructuous.

Date : 30-12-2013L.R. copiesRRB/AM

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Justice C.V. Nagarjuna Reddy

[1]1992 Supp. (1) SCC 335

[2]2010(3) ALT (Crl) 93 (AP )

[3]Writ Petition (Criminal) No.68/2008, dt. 12-11-2013Writ Petition (Criminal) No.68/2008, dt. 12-11-2013

[4]W.P.No.33917 of 2013, dt. 23-12-2013