WP (Crl) 1009/2007 Page 1 of 19 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(CRL) 1009/2007 & CRL.MAs 8813/2007, 4862/2008 Date of order: May 1, 2008 HARPAL SINGH ARORA & ORS ..... Petitioners Through Mr. Tarun Sharma with Mr. Ali Afsar, Advocates versus STATE AND ANR ..... Respondents Throu gh Mr. Mukta Gupta, Sr. Standing Counsel and Mr. Pawan Behl, APP Ms. Indrani Ghosh with Mr. S.K. Bhaduri, Advocate for R-2. CORAM: HON'BLE DR. JUSTICE S.MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported Yes in Digest? [JUDGMENT] Dr. S.Muralidhar, J (open court) 1. The facts leading to the filing of this petition and the issues that arise for determination are set out in a detailed order passed by this Court on 24th April 2008 the following order which reads as under: “1. The challenge in the instant case is to an order dated 3rd August 2007 passed by the learned Metropolitan Magistrate („MM‟), New Delhi directing registration of the FIR and investigation into the allegations made in the complaint filed by the Respondent No.2 wife complaining of harassment and demand for of dowry by the Petitioner No.1 husband and his relatives. WP (Crl) 1009/2007 Page 2 of 19 2. The marriage of the Respondent No.2 with the Petitioner No.1 took place on 19th September 2004. She filed a complaint on 24th April 2006 with the police which was taken up by the Crime Against Women („CAW‟) Cell on 24th April 2006. The CAW cell examined the matter, looked into the evidence produced by the parties and on 5th December 2006 a report was prepared by the Sub Inspector („SI‟) that the case was not related to dowry harassment. The SI then forwarded the matter to the Assistant Commissioner of Police („ACP‟) who concurred with the findings on 8th January 2008. 3. Conscious of the fact that the CAW cell had decided to close the matter, the Respondent No.2 filed a complaint on 15th December 2006 in the court of the learned Additional Chief Metropolitan Magistrate („ACMM‟) Delhi. The complaint is captioned as “Complaint under Section 200 CrPC read with 156 (3) CrPC for summoning the above named accused person and for registration of FIR against the above named accused persons.” The prayer in the complaint is for the Court to “direct the concerned police authorities to register an FIR against all the aforesaid accused persons and to investigate and to take legal action against all the accused as per law, in the interest of justice.” 4. Initially, on 2nd January 2007 the learned MM passed an order acknowledging the receipt of the complaint and directing it to be checked and registered. Thereafter, it was assigned to the Mahila Court. On 4th January 2007 while registering the complaint and hearing the submissions of learned counsel for the complainant, the learned MM noted that the “the complaint is pending with the CAW Cell, Amar Colony for the past about eight months, yet no concrete step is alleged to have been taken. Notice be issued to the Incharge CAW Cell, Amar Colony to appear and file status report on 5th February, 2007.” 5. On 4th April 2007 a status report dated 6th March 2007 was filed where, inter alia, the Enquiry Officer („EO‟) of the CAW cell stated that “there are substantial evidence in the file against the allegations made by the complainant hence it is under consideration.” On 6th June 2007 another status report was also filed. On 4th April 2007 the learned MM was informed by the EO that “there is evidence in support of the allegations made.” WP (Crl) 1009/2007 Page 3 of 19 6. On 3rd August, 2007 the learned MM was provided with the status report which indicated that the complaint of Respondent No.2 had been closed at the CAW Cell. The learned MM then passed the impugned order which reads as under: “3.8.2007 Present: Complainant with counsel Sh. Amit Khanna. SI Kusum Lata, EO, who has filed the status report. As per which the complaint of the complainant has been closed at the CAW Cell. As per directions, she has produced the original file. The same be taken on record. Heard. Ld. counsel for complainant prays that the directions for registering the FIR be issued to the SHO, PS, Lajpat Nagar. SHO, PS Lajpat Nagar is directed to register the FIR and get the same investigated, in view of the allegations made. Matter be listed for filing of status report on 18.9.2007.” 7. Mr. Tarun Sharma, learned counsel for the Petitioner urges that the impugned order could not have been passed in the teeth of the report of the CAW Cell deciding to close the case and that the learned MM erred in law directing registration of the FIR by exercising the powers under Section 156 (3) CrPC. He submits that the judgment in Rajinder Singh Katoch v. Chandigarh Administration VIII (2007) SLT 584 support his submissions. 8. Ms. Indrani Ghosh, learned counsel appearing on behalf of the Respondent No.2 seeks to rely upon the judgment of the Supreme Court in H.S. Bains, Director, Small Savings-cum-Deputy Secretary Finance, Punjab v. State (Union Territory of Chandigarh) 1980 (4) SCC 631 wherein it has been held that the Magistrate is not bound to accept the closure report that may be submitted by the police under Section 173 CrPC. He may take cognizance of the offence on the basis of the original complaint and proceed to examine upon oath the complainant and the witnesses under Section 200 CrPC. While doing so the learned MM may hold or direct an inquiry under Section 202 if he thinks fit. WP (Crl) 1009/2007 Page 4 of 19 9. Ms. Mukta Gupta, learned Senior standing counsel appearing on behalf of the State seeks to rely upon the judgment in Suresh Chand Jain v. State of Madhya Pradsh AIR 2001 SC 571. She submits that even before taking cognizance of the offence, the Magistrate can direct registration of the FIR under Section 156 (3) CrPC and investigation by the police into the allegations. 10. It is clear that none of the judgments cited by the counsel on either side deals with the situation faced in the present case where an exhaustive enquiry has been conducted by the CAW Cell of the police into the allegations made by the Respondent No.2 and it has come to the conclusion the complaint must be closed. No additional facts have come on record and on the same set of allegations a complaint has been filed in the court under Section 200 CrPC. A prayer is also made for registration of the FIR under Section 156 (3) CrPC and investigation by the police. 11. The question that arises is as to what is the nature of the report of the CAW cell in such a case. Can it be treated as a report of the investigation by the police, and is the learned MM then bound to deal with the said report before proceeding with the complaint under Section 200 CrPC and making an order under Section 156(3) CrPC? 12. Learned counsel for the parties wish to examine this question further and address arguments. 13. List on 1st May, 2008. 14. Interim order to continue. 15. A copy of order be given dasti to learned counsel for the parties.” (emphasis supplied) 2. Counsel for the parties addressed arguments today on the question highlighted in the above order dated 28th April 2008. Mr. Tarun Sharma, learned counsel appearing on behalf of the Petitioner refers to a judgment of the Division Bench of Punjab & Haryana High Court in Ganesh Dass v. State of Kerala 1996 Crl LJ 612 to contend that the investigation by the WP (Crl) 1009/2007 Page 5 of 19 police after registering an FIR was entirely in the realm of Section 154 CrPC and that the Magistrate has no power to direct registering of an FIR. Mr. Sharma further submits that the report of enquiry by the CAW Cell in the instant case should be considered to be a report of investigation by the police in terms of Section 173 CrPC and that the learned Magistrate ought not to have ignored the said report and proceeded to direct investigation under Section 156 (3) CrPC. He nevertheless does not contest the proposition that in terms of the judgment of the Supreme Court in H.S. Bains v. State (Union Territory of Chandigarh) 1980 (4) SCC 631 it was open to the learned Magistrate to reject the closure report and proceed with the complaint in terms of Section 200 CrPC i.e. by recording the statement of complainant and taking further steps thereafter in accordance with law. 3. Ms. Gupta, learned Senior standing counsel appearing on behalf of the State submits that the CAW Cell was set up only to provide, at the pre- litigation stage, a facility for exploring the possibility of settling their disputes through mediation with the help of the police. She informs the Court that the CAW cell has now been notified as a police station. She submits that although there are no specific provisions in CrPC which contemplate a preliminary enquiry by the police on a complaint by a person aggrieved by the commission of a cognizable offence, certain observations of the Supreme Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 implicitly recognize this practice by the police. Ms. Gupta is categorical in her submission that report of the CAW cell, prepared after the WP (Crl) 1009/2007 Page 6 of 19 completion of an enquiry, is not a report of investigation within the meaning of Section 173 CrPC. She nevertheless submits that in a case like the present one where a detailed report of enquiry by the CAW Cell was available and taken on record by the learned Magistrate, the latter ought not to issue a direction to the police to investigate a case under Section 156 (3) CrPC. He should apply his mind to the report of the CAW cell and set out even briefly the reasons why he still thinks it necessary to issue a direction for investigation. If after considering he report of the CAW cell the Magistrate is not inclined to order the investigation under Section 156 (3) CrPC he may still decide to proceed under Section 200 CrPC by recording the statement of the complainant and thereafter if necessary direct a limited investigation under Section 202 CrPC. 4. Ms. Indrani Ghosh, learned counsel appearing on behalf of the Respondent No.2 submits that if this Court were to hold that the learned Magistrate has to discuss the reasons why he is not accepting the report of the enquiry by the CAW Cell then the matter should be remanded back to the learned Magistrate at the stage of considering the application under Section 156 (3) CrPC and a direction given for a time bound disposal of the application in accordance with law. 5. The questions that arise for determination, as formulated in the previous order of this Court are: (a) What is the nature of the report of enquiry of the CAW WP (Crl) 1009/2007 Page 7 of 19 cell? Is it a report of the investigation by the police in terms of Section 173 CrPC? (b) Is a Magistrate, when approached thereafter by a complainant with a complaint under Section 190 read with Section 200 CrPC along with an application under Section 156 (3) CrPC seeking a direction for investigation by the police, bound to deal with the said report before disposing of the application under Section 156 (3) CrPC and proceeding with the complaint under Section 200 CrPC? 6. This Court has to first consider the nature of the proceedings before the CAW Cell, which has now been notified as a police station. There is no dispute that the complaint, at the stage at which it is referred to the CAW Cell by the police, has not been registered as an FIR in terms of Section 154 (1) CrPC. The CAW cell, manned entirely by the police, is indeed a kind of pre-litigative alternate dispute resolution mechanism that might help in resolving a dispute before the criminal justice process is set in motion by registering an FIR. This may not be a statutorily recognised device. Nevertheless given the nature of matrimonial disputes, straightway registering an FIR, which triggers the criminal justice process, can place the parties in an inflexible position and thereafter less inclined to reconcile their differences. The offences under Section 498 A and 406 IPC being cognizable and non-bailable, the process of anticipatory bail, arrest, regular bail, filing of charge sheet, if any, have to follow the registration of an FIR. The reference of the complaint to the CAW cell has the effect of postponing WP (Crl) 1009/2007 Page 8 of 19 the activation of the criminal justice process by facilitating dialogue between the parties with the help of the police. Of course, while not all attempts at settlement may be successful, going by the official statistics, there is a reasonable measure of success at such efforts by the CAW Cell in Delhi. The enquiry by the CAW Cell is at the pre-FIR stage and is therefore only a preliminary enquiry. Even if, as in the instant case, it takes eighteen months to conclude, the report of the CAW Cell would only be that of a preliminary enquiry and nothing more. The question whether any legal sanctity is to be attached to such a report of preliminary enquiry requires to be addressed next. 7. The Supreme Court has in some of its decisions recognised the practice of the police conducting a preliminary enquiry before registering an FIR. In P.Sirajudin v. State of Madras (1970) 1 SCC 597 in the context of a criminal complaint against a public servant, it was observed in the judgment of Mitter, J. (SCC, p.601): “Before a public servant, whatever his status, is publicly charged with acts of dishonesty which amount to serious misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Earlier in State of Uttar Pradesh v. Bhagwant Kishore Joshi (1964) 3 SCR 71 in the concurring opinion of Mudholkar J., it was expressly stated: (SCR pp. 86-87) “In the absence of any prohibition in the Code, express or implied, I am of the opinion that it is open to a police officer to make preliminary enquiries before registering an offence and WP (Crl) 1009/2007 Page 9 of 19 making a full scale investigation into it.” 8. In Bhajan Lal, in para 79 of the judgment, the Supreme Court expressed its agreement with the above “views” in P.Sirajuddin and Bhagwant Kishore Joshi. Therefore the practice adopted by the police of conducting a preliminary enquiry by the police even before registering an FIR has received the judicial imprimatur and therefore its legality cannot be questioned. 9. This Court would like to observe that since an enquiry by the CAW Cell might take some time. If at the end of such enquiry, the police decides not to register an FIR, the complainant cannot be without a remedy. There would be little purpose for the complainant to approach the Superintendent of Police (SP) under Section 154 (3) CrPC since the report of the CAW Cell, at least in Delhi as is evident from the records of the instant case, is reviewed up to the level of the Deputy Commissioner of Police (DCP), an officer of an equivalent rank. The complainant can file a complaint before the learned MM under Section 190 read with Section 200 CrPC along with an application under Section 156 (3) CrPC asking for a direction to the police to investigate the case. For this limited aspect the observations of the Supreme Court in para 16 of Minu Kumari v. State of Bihar (2006) 4 SCC 359 are relevant, which reads as under: (SCC page 365) “16. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having WP (Crl) 1009/2007 Page 10 of 19 jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused.” Any delay by the learned MM in taking cognizance of the offence in such event can be condoned by exercising power under Section 473 CrPC. 10. The decision of the Division Bench of the Punjab and Haryana High Court in Ganesh Dass, which was relied upon by the learned counsel for the petitioner is no longer good law as is evident from two decisions of the Supreme Court. The first is Madhu Bala v. Suresh Kumar 1997 JCC 532 (SC) where the Supreme Court held (JCC, p.534): “10. From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a `complaint‟ the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking, the police to 'register a case' makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the Police to investigate into a cognizable 'case' and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same. The WP (Crl) 1009/2007 Page 11 of 19 provisions of the Code, therefore, does not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the Police would be 'to register a case‟ at the police station treating the complaint as the First Information Report and investigate into the same.” 11. In Suresh Chand v. State of Madhya Pradesh AIR 2001 SC 571 the Supreme Court reiterated the above position and observed: “For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so.” 12. The procedure that is to adopted by the learned Magistrate is determined by the collective reading of Section 200 and 190 CrPC. Before taking cognizance the learned Magistrate wishes to have a investigation done by the police then he can pass necessary direction to that effect under Section 156 (3) CrPC. The following passage in Madhu Bala explains the position (JCC, p.534): “8. From a combined reading of the above provisions it is abundantly clear that when a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under Section 190(1)(a) of the Code and proceed with the same in accordance with the provisions of Chapter XV. The other option available to the Magistrate in such a case is to send the complaint to the appropriate Police Station under Section 156(3) for investigation. Once such a direction is given under Sub-section (3) of Section 156 the police is required to investigate into that complaint under Sub- section (1) thereof and on completion of investigation to submit a 'police report' in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 190(1)(b) - but WP (Crl) 1009/2007 Page 12 of 19 not under 190(1)(a). Since a complaint filed before a Magistrate cannot be a `police report‟ in view of the definition of `complaint‟ referred to earlier and since the investigation of a 'cognizable case' by the police under Section 156(1) has to culminate in a `police report‟ the `complaint‟ - as soon as an order under Section 156(3) is passed thereon - transforms itself to a report given in writing within the meaning of Section 154 of the Code, which is known as the First Information Report (FIR). As under Section 156(1), the police can only investigate a cognizable 'case', it has to formally register a case on that report.” 13. This Court agrees with the submission of Ms. Gupta, learned Senior Standing counsel for the State that the report prepared by the police, in the CAW Cell, partakes the character of a report of preliminary enquiry and not that of a report of investigation as contemplated under Section 173 CrPC. It is clear from reading of the various provisions of Chapter XII CrPC that the report of investigation by the police is consequent upon the registration of the FIR as contemplated by Section 154 (1) CrPC. The proceedings before the CAW Cell are anterior to the stage of registration of FIR. If after registration of the FIR the report of investigation by the police indicates that no cognizable offence is made out, then such a report is termed a closure/ cancellation report. After a closure report is filed by the police, there are three courses of action open to the Magistrate as explained by the Supreme Court in H.S. Bains. Paras 6 and 7 of the said decision are instructive and read as under: “6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present WP (Crl) 1009/2007 Page 13 of 19 under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). Oft receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by