.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1782 OF 2005 Shri Razak Patel, Age : about 60 years, Occ.At present Nil, Residing at Hirji Govindji, Block B/8, 3rd Floor, Dinesh Compound, Sofia Zubar Marg, Nagpada, Mumbai - 400 008. ..Applicant. [Orig.Accused No.1] -Versus- 1. The State of Maharashtra & 2. Shri Virpal Jaimal Valmiki, Age : about 48 years, Occ.Social Worker, Resident of Korba Mithagar, 21/1-3, Rammata Wadi, Opp.Wadala police station, Mumbai-400 037. ..Respondents. [Respondent No.2 - orig.Complainant] .... Mr.S.G.Kudle, Adv. a/w. A.R.Metkar, adv. for the applicant. Mr.Laxman P. Kanal, Adv. for orig.complainant. Ms.A.A.Mane, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATE OF RESERVING DATE OF RESERVING DATE OF RESERVING THE ORDER : 16TH DECEMBER, 2008. THE ORDER : 16TH DECEMBER, 2008. THE ORDER : 16TH DECEMBER, 2008. DATE OF PRONOUNCING DATE OF PRONOUNCING DATE OF PRONOUNCING THE ORDER : 14TH JANUARY,2009 THE ORDER : 14TH JANUARY,2009 THE ORDER : 14TH JANUARY,2009 ORAL ORDER : ORAL ORDER : ORAL ORDER : 1. Heard the learned Advocate for the applicant - orig.accused No.1, the learned Advocate for respondent No.2-orig.complainant and the learned APP for the State. .(2). 2. The applicant is seeking discharge from Special Case No.7 of 2002 which is pending before the learned Special Judge, Greater Mumbai. The said case has been initiated on a private complaint filed by the respondent No.2. 3. The case of the complainant is that he is a social worker and he belongs to Sweeper Community. On 22.10.2000 at about 10:00 a.m. to 10:30 a.m. the complainant along with his son was standing by the road near Wadala police station. At that time, he heard some stranger hurling abuses. The complainant asked the person to whom he was giving abuses. Thereupon the person abused the complainant. The complainant told his son to call the police. When the person heard about the police, he started running. At that time, the complainant saw some police men coming out of Wadala police station, they were PSI Dilip Patki and PI Arvind Sawant. Before the complainant could tell them anything, PSI Patki caught hold of the complainant by his collar and started fisting him. PI Sawant started assaulting Subhash i.e. son of the complainant. Son of the complainant and his brother who were standing nearby were also .(3). assaulted by PSI Patki and PI Sawant and other police staff. It is the case of the complainant that PSI Patki told him that he is Brahmin by caste and he would teach a lesson to the complainant who is a Bhangi. They were taken to the police station where the complainant and his relatives, including his wife, son, brother, and others came to be assaulted. After about half and hour, ACP Shri Pandit i.e. orig.accused No.3 came to Wadala police station. At that time Senior PI Mr.Razzak Patel i.e. applicant tried to pacify PI Sawant and PSI Patki saying good words about the complainant, however, PSI Patki and PI Sawant defied Senior PI Razzak Patel and did not heed his advice. The complainant and others were directed to go to hospital for medical examination. They went to KEM hospital. After they were examined, they came back from KEM Hospital to the police station. At that time, ACP Pandit - orig.accused No.3 and the orig.accused No.2 were at the police station. The complainant asked ACP Pandit and the DCP to record his FIR. The complainant wrote a small complaint and handed over the same to Wadala police station. ACP Pandit started recording the statements of witnesses. However, the case of the complainant is that no case came to be registered .(4). and hence he lodged this private complaint against the applicant, who was then Senior PI, the ACP Mr.Pandit and the DCP. 4. The said complaint came to be lodged on 1.12.2000 before the Additional C.M.M., 5th Court, Dadar, Mumbai. It was numbered as Criminal Case No.2780/Miscellaneous/2000. This complaint was only under Section 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [ for the sake of brevity, hereinafter called as "the SC ST Act"] read with 114 & 34 of Indian Penal Code. The case of the complainant is that the applicant then being the Sr.P.I. at the police station and as such a public servant has willfully neglected his duty required to be performed by him i.e. of registering a complaint given by the complainant against PSI Patki and PI Sawant, hence, the offence under Section 4 of the SC ST Act 5. In the above case, process came to be issued only under Section 4 of the SC ST Act against the applicant and other two co-accused i.e. ACP Pandit and DCP Shinde. Thereafter the case was renumbered as Criminal Case .(5). No.4032/S/2001 and it was committed to the Special Court, Greater Mumbai. It is numbered as Special Case No.7 of 2002. The applicant preferred an application for discharge in the said case, which came to be rejected. Hence, the present Revision. 6. It may be stated here that a private complaint also came to be filed by the complainant against PSI Patki and PI Sawant before the learned Additional C.M.M., 5th Court, Dadar, Mumbai. The said case was numbered as Criminal Case No.2781/Misc./2000. It was under Section 323, 324 read with 34 of IPC and under Section 3(1)(x),(xi) and Section 3(2)(vii) of the SC ST Act. The case came to be committed to the Court of Special Judge and it was numbered as SC ST Special Case No.6 of 2002. In the said case, charge came to be framed against both the accused persons i.e. PSI Patki and PI Sawant under Section 324 read with 34, 3(1)(x), 3(1)(xi) read with 3(2)(vii) of the SC ST Act. After the evidence was led in the said case, by judgment and order dated 31.7.2008 the learned Special Judge acquitted both the accused therein i.e. PSI Patki and PI Sawant of all the offences. 7. From the record, it is seen that on .(6). 22.10.2000 C.R. No.115 of 2000 came to be lodged at Wadala police station against the present complainant and his associates by one Lal Mohammed Khan. The said case is under Section 323, 147, 148, 149, 504 and 506 of IPC. This incident had occurred just in front of Wadala police station. On seeing the incident, two officers of Wadala police station intervened in the free fight between the complainant Mr.Valmiki and his relations on one side and Lal Mohammed Khan on the other side. At that time, PSI Patki caught the complainant and started taking him to the police station. The complainant gave a written complaint against PSI Patki and PI Sawant alleging that they have needlessly assaulted him and his family members. It was also alleged that these two officers have committed offence under the SC ST Act. The complainant is aggrieved that this complaint was not immediately registered. 8. As far as the applicant is concerned, it is not the case of the complainant that he was present at the time of the incident of assault and giving of abuses by PI Sawant and PSI Patki. It is not the case of the complainant that the applicant was involved in any way in this incident .(7). i.e. it is not his case that the applicant assaulted the complainant or any of his relatives or that the applicant abused him or any of his relatives at any point of time. The case of the complainant, as far as the applicant is concerned, is that his complaint was not registered and thus there is dereliction of duty on the part of the applicant in as much as the applicant had willfully neglected his duty to register the complaint. 9. In the present case, three issues arise : the first is that whether the applicant has willfully neglected to carry out his duty of registering FIR on receipt of the complaint of the complainant. The second issue is whether at that point of time it was absolutely necessary that the applicant should have immediately registered the FIR of the complainant and not doing the same would amount to wilful neglect to carry out his duty; and the third issue is that as no sanction has been granted as envisaged under Section 197 of Cr.P.C. whether in absence of sanction the case can proceed in respect of the applicant. 10. As far as the first aspect is concerned, it .(8). is seen that the applicant, was the then Sr.P.I.. From perusal of the complaint, it is clear that the complainant had at no time approached the present applicant for lodging his FIR. On the other hand in the complaint he has categorically stated that he insisted to orig.accused No.2 DCP Shinde and orig.accused No.3 ACP Pandit to record his complaint. In his complaint at no point of time he stated that he requested the present applicant that his FIR be recorded. The request that FIR be recorded was made to ACP Pandit & DCP Shinde not immediately but after the complainant came back from the hospital after his medical checkup. In this case the DCP directed the ACP orig.accused No.3 in the present case) to enquire into the complaint of the complainant and to submit his report. Pursuant to the said directions, ACP Shri Pandit made enquiries into the matter and he submitted his report to the DCP. The said report is dated 14.11.2000. ACP Pandit submitted his report after going through the statements of 22 persons which had been recorded. Thereafter the DCP went through the report submitted by ACP Shri Pandit. After going through the report, statements and the other material, the DCP submitted his own report on 16.11.2000 to .(9). Additional Commissioner of Police, South Region, Mumbai. Both these reports are a matter of record. Infact, in both these reports it was recommended that action should be taken against the erring officer mentioned therein. After the DCP submitted his report to the Additional Commissioner of Police South Region a reply was awaited by him in respect of his report. However, in the meanwhile on 1.12.2000 the present complaint came to be filed by the complainant. On perusal of the record, it is seen that as preliminary enquiry was directed to be conducted in the incident by superior officers, hence it would not have been proper for the applicant to register FIR. In any event at no point of time the complainant approached the applicant with a request to register his FIR but the request was made to the officers superior to the applicant and these officers had decided to conduct an enquiry in the incident. In such case, it cannot be said that there was any wilful negligence on his part in carrying out any duty or in performing any duty. In such case, Section 4 of the SC ST Act would not be attracted. 11. Mr.Kanal the learned Advocate for the .(10). orig.complainant submitted that refusal to register the FIR immediately inspite of disclosure of cognizable offence amounts to dereliction of duty by police. In view of this submission, it becomes necessary to examine whether at that point of time it was necessary for the applicant to see that the FIR was immediately registered against PSI Patki & PI Sawant. 12. In the case of P.Sirajuddin Etc. Vs. P.Sirajuddin Etc. Vs. P.Sirajuddin Etc. Vs. State of Madras Etc. 1970 (1) SCC 595 State of Madras Etc. 1970 (1) SCC 595 State of Madras Etc. 1970 (1) SCC 595, the Supreme Court observed that before a public servant, whatever be his status is publicly charged with acts of dishonesty which amounts to serious misconduct and a first information is lodged against him, there must be some suitable enquiry into the allegations by a responsible officer, because lodging of such a report against persons holding top positions may do incalculable harm to such officers. It is clear, therefore, that the Supreme Court accepted that there can be a preliminary enquiry into the allegations before the FIR is lodged especially where the matter involves an officer who is a public servant. In the present case both PSI Patki and PI Sawant are police officers. .(11). 13. In the case of State of Haryana Vs. State of Haryana Vs. State of Haryana Vs. Bhajanlal, AIR 1992 SC 604 Bhajanlal, AIR 1992 SC 604 Bhajanlal, AIR 1992 SC 604, the Supreme Court referred to the observations in Sirajuddin’s case and expressed that it was in agreement with those observations. The said observations are as under : Before a public servant, whatever be his status is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and first information is lodged against him, there must be some suitable there must be some suitable there must be some suitable preliminary enquiry into the preliminary enquiry into the preliminary enquiry into the allegations by a responsible officer. allegations by a responsible officer. allegations by a responsible officer. The lodging of such a report against a person specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general...." [Emphasis supplied] .(12). 14. In Jacob Mathew Vs. State of Punjab, (2005) 6 Jacob Mathew Vs. State of Punjab, (2005) 6 Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1 SCC 1 SCC 1, the appellant doctor along with another doctor was charged under section 304-A read with section 34 of the IPC. On a reference, the Supreme Court was considering the concept of negligence in particular professional negligence and as to when and how it gives rise to an action under the criminal law. The Supreme Court noted that the cases of doctors being subjected to criminal prosecution are on an increase. The Supreme Court emphasised the need to protect doctors from frivolous and unjust prosecutions. The Supreme Court observed that many a complainant prefer recourse to criminal process as a tool for pressuring the medical professional for extracting uncalled for or unjust compensation and expressed that such malicious proceedings have to be guarded against. The Supreme Court observed that the investigating officer should before proceeding against the doctor accused of rash and negligence act or omission obtain an independent and competent medical opinion preferably from a doctor. Therefore, the Supreme Court recognized the need to make some preliminary inquiry before a case is registered against a doctor on the basis of complaint alleging cognizable offence. .(13). 15. In the case of Shashikant Vs. Central Bureau Shashikant Vs. Central Bureau Shashikant Vs. Central Bureau of Investigation & Ors., (2007) 1 SCC 630 = JT of Investigation & Ors., (2007) 1 SCC 630 = JT of Investigation & Ors., (2007) 1 SCC 630 = JT 2006(9) SCC 603 2006(9) SCC 603 2006(9) SCC 603 the appellant had made an anonymous complaint to the CBI alleging corrupt practices and financial irregularities on the part of some officers of Railways. On the basis of a source information, a preliminary inquiry was conducted in which the statements of various officers were recorded. The investigating officer was of the opinion that it was not necessary to register a FIR. He recommended holding of departmental proceedings. The recommendation found favour with the higher officers. Departmental proceedings were initiated. Penalties were imposed on the said officers and the cases were closed against them. In the meanwhile the appellant was transferred. He challenged his transfer before the Central Administrative Tribunal. His application was rejected. He then filed a writ petition, inter alia, praying for reopening of the preliminary inquiry and for a direction to the CBI to register offence against the said officers. The High Court dismissed the said writ petition holding that the grievance of the appellant that the CBI was not doing its duty was not well founded. The appellant .(14). challenged the said order in the Supreme Court. It was argued before the Supreme Court that procedure prescribed in the Code was not followed. The Supreme Court referred to the provisions of the Delhi Special Police Establishment Act, 1946 under which the CBI is constituted. The Supreme Court observed that this Act applies in regard to charges of corruption made against the employees of Union of India and CBI Manual was made by the Central Government providing for detailed procedure as regards the mode and manner in which complaint against police servants are dealt with. The Supreme Court then quoted extensively from its judgment in Vineet Narain & Ors. Vs. Union of Vineet Narain & Ors. Vs. Union of Vineet Narain & Ors. Vs. Union of India & Anr., JT 1997 (10) SC 247 India & Anr., JT 1997 (10) SC 247 India & Anr., JT 1997 (10) SC 247, where the Supreme Court has referred to CBI Manual which provides for a preliminary inquiry. The Supreme Court observed that a distinction has been made between a preliminary inquiry and a regular case. A preliminary inquiry may be converted into a regular case as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. The Supreme Court then observed that although ordinarily in terms of section 154 of the Code, when a report is received relating to the cognizable offence, FIR .(15). should be lodged, to carry out a preliminary inquiry even under the Code, is not unknown. The Supreme Court further observed that when an anonymous complaint is received, no investigating officer would initiate investigative process immediately thereupon. It may for good reasons carry out a preliminary enquiry to find out the truth or otherwise of the allegations contained therein. This judgment clearly indicates that preliminary enquiry can be held in cases relating to public servants. Admittedly PI Sawant and PSI Patki are public servants. Therefore, a preliminary enquiry could be held and it was not imperative that the FIR should have been immediately registered. 16. In the case of State of U.P. Vs. Bhagwant State of U.P. Vs. Bhagwant State of U.P. Vs. Bhagwant Kishore Joshi, AIR 1964 SC 221 Kishore Joshi, AIR 1964 SC 221 Kishore Joshi, AIR 1964 SC 221, Hon’ble Justice Mudholkar referred to the Supreme Court Judgement in H.N.Rishbud & Anr. Vs. State of Delhi, AIR H.N.Rishbud & Anr. Vs. State of Delhi, AIR H.N.Rishbud & Anr. Vs. State of Delhi, AIR 1955 SC 196 1955 SC 196 1955 SC 196 wherein it is held that under the Code, investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to .(16). the Commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b)the search of places or seizure of things considered necessary for the investigation and to be produced at the trial and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under section 173. Justice Mudholkar then observed that the Supreme Court has however not said that if a police officer takes merely one or two steps indicated by it, what he has done must necessarily be regarded as investigation. Justice Mudholkar further observed that in the absence of any prohibition in the Code, express or implied, he was of opinion that it is it is it is open to a police officer to make preliminary open to a police officer to make preliminary open to a police officer to make preliminary enquiries before registering an offence enquiries before registering an offence enquiries before registering an offence and making a full scale investigation into it. In Bhajanlal’s Bhajanlal’s Bhajanlal’s case case case (supra), the Supreme Court quoted with approval justice Mudholkar’s observations made in this case that merely making some preliminary enquiries upon receipt of information from any anonymous source or a source of doubtful .(17). reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. Thus, the Supreme Court endorsed the opinion expressed by Justice Mudholkar that there can be a preliminary inquiry before a cognizable offence is registered. It is pertinent to note that in Shashikant’s case Shashikant’s case Shashikant’s case (supra) also, the Supreme Court has quoted Justice Mudholkar’s observations with approval. 17. In Kotak Mahindra Bank Ltd. Vs. Nobiletto Kotak Mahindra Bank Ltd. Vs. Nobiletto Kotak Mahindra Bank Ltd. Vs. Nobiletto Finlease Investment Pvt. Ltd. & Anr., 2005(3) Finlease Investment Pvt. Ltd. & Anr., 2005(3) Finlease Investment Pvt. Ltd. & Anr., 2005(3) Mh.L.J. 512 Mh.L.J. 512 Mh.L.J. 512 this Court held that preliminary enquiry may be necessary in a given case and may not be held as a general rule. Whether it is necessary or not would depend on facts and circumstances of each case. It was further observed that in cases where the accusations made in the complaint are doubtful the police can certainly enquire as to whether the accusations prima facie appear to disclose a cognizable offence. 18. In a recent decision of the Supreme Court in the case of Rajender Singh Katoch Vs. Chandigarh Rajender Singh Katoch Vs. Chandigarh Rajender Singh Katoch Vs. Chandigarh .(18). Administration & Ors. Administration & Ors. Administration & Ors. reported in (2007) 10 SCC 69 (2007) 10 SCC 69 (2007) 10 SCC 69 , it was observed as under :- " Although the officer in charge of a police station is legally bound to register a first information report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not. .." . After considering the decision in the case of Ramesh Kumari vs. State (NCT of Delhi) & others, Ramesh Kumari vs. State (NCT of Delhi) & others, Ramesh Kumari vs. State (NCT of Delhi) & others, (2006) 2 SCC 677 = AIR 2006 SC 3376 (2006) 2 SCC 677 = AIR 2006 SC 3376 (2006) 2 SCC 677 = AIR 2006 SC 3376, it was further observed that :- "We are not oblivious to the decision .(19). of this Court in Ramesh Kumari V. State (NCT of Delhi) & Ors. [(2006) 2 SCC 677] wherein such a statutory duty has been found in the Police Officer. But, as indicated hereinabove, in an appropriate case, the Police Officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not." . Thereafter reference was made to Shashikant’s Shashikant’s Shashikant’s case case case (supra) wherein it is observed that evidently it was within the province of the police to commence a preliminary inquiry. . In my opinion this decision and the earlier decisions sets at rest all doubts that indeed a preliminary inquiry can be conducted by a police officer before registering an FIR. 19. This Court in the case of Kalpana Kutty vs. Kalpana Kutty vs. Kalpana Kutty vs. The State of Maharashtra The State of Maharashtra The State of Maharashtra reported in 2008(1) Bom CR 2008(1) Bom CR 2008(1) Bom CR (Cri) 10 (Cri) 10 (Cri) 10 has also held that depending on the facts