AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2297 OF 2006 Shayamsunder R. Agarwal, adult, 41 years, Occ. Business, Residing at Own Hosue, Ram Mandir Road, Bhayandar (W), Tal. & Dist. Thane. ) ) ) ) ... Petitioner Versus 1. State of Maharashtra ) 2. The Superintendent of Police, Thane Rural. ) ) 3. Shri Ashok Vastrad, Police Inspector, Bhayandar Police Station, Bhayandar (W). ) ) ) ... Respondents Mr. M.S. Mohite with Mr. Sandesh D. Patil for the petitioner. Mr. S.R. Borulkar, Public Prosecutor for the respondent-State. Mr. M.K. Kocharekar for respondent 3. CORAM : SMT. RANJANA DESAI, & ANOOP V. MOHTA, JJ. DATE ON WHICH THE JUDGMENT RESERVED : 9TH MARCH, 2007. DATE ON WHICH THE JUDGMENT PRONOUNCED : 30TH APRIL, 2007. AJN 2 JUDGMENT:- (Smt. Ranjana Desai, J.) 1. In this petition, following questions arise. 1. Whether once an information relating to commission of a cognizable offence is received by a police officer in charge of a police station, he is duty bound to register a FIR under section 154 of the Code of Criminal Procedure (for short, “the Code”). 2. Whether it is open to the police officer to make a preliminary inquiry to find out whether information received by him discloses cognizable offence or not. 3. Whether remedy of filing a writ petition under Article 226 of the Constitution of India or a petition under section 482 of the Code is open to a person aggrieved by the refusal of the police officer to register a FIR when alternative remedy of filing a private complaint is open to him. 2. The learned counsel appearing for the petitioner and the respondents AJN 3 have addressed us on the above questions. Since the above questions of law have arisen in some other petitions also, the learned counsel Ms. Anjali Iyer and Mr. J.S. Kini have requested us to give them a hearing. We have accordingly heard them. 3. The facts of the present petition will have to be shortly stated. The petitioner claims to be a businessman. He carries on business in Mira Bhayandar area. He is carrying on business of real estate. According to him, he had received threatening calls from the members of underworld and hence the police had given him protection. According to the petitioner in the year 2004, he had applied for a revolver licence. At that time, respondent 3, PI Vastrad attached to Bhyandar Police Station (West), had given him a certificate that no criminal cases were pending against him. The said certificate is dated 20/2/2006. 4. The petitioner' s case is that thereafter he had applied for issuance of passport. The passport authorities wanted a certificate about the background of the petitioner. The petitioner approached respondent 3 for the certificate. Respondent 3 started demanding bribe from the petitioner. According to the petitioner, respondent 3 threatened the petitioner that if the petitioner does not yield to his demand, he would not give a positive report against him. AJN 4 According to the petitioner, respondent 3 gave a false report that C.R. No.13 of 2003 was pending against him though the petitioner was acquitted therein. The petitioner' s case is that the earlier report dated 20/2/2006 is contrary to the report sent by respondent 3 to the passport authorities and this is not a mistake, but it is done deliberately because the petitioner did not pay money to respondent 3. 5. According to the petitioner, he approached the Superintendent of Police, Thane Rural, respondent 2. Vide letter dated 28/4/2006, respondent 3 was directed to give a fresh report. Due to false information given by respondent 3, the petitioner was required to pay a fine of Rs.5,000/-. The petitioner, therefore, sent a complaint to Deputy Superintendent of Police, vide letter dated 7/9/2006 and requested him to take action against respondent 3. The petitioner also filed a complaint on 14/9/2006 with the Superintendent of Police and requested him to register an offence against respondent 3. It was stated in this complaint that the lower authorities were not registering complaint against respondent 3 despite the fact that the complaint shows commission of a cognizable offence. 6. According to the petitioner, on two occasions, he was called by the police in connection with his complaint. Once he was called by Deputy Superintendent of Police, Vasai and on another occasion, he was called by AJN 5 Sub-Divisional Police Officer. But on both the occasions, no one was present to attend to the petitioner. The petitioner has, therefore, approached this court praying, inter alia, for a direction to the police to register a complaint / First Information Report (for short, “the FIR”) against respondent 3. 7. We have heard Mr. Mohite, the learned counsel appearing for the petitioner. Mr. Mohite took us to the relevant provisions of the Code. He submitted that section 154 of the Code refers to every information relating to a cognizable offence. The word “information” is unqualified as to the truth or veracity of the said information. The said section requires that the information should relate to commission of a cognizable offence. It does not say that the information should disclose commission of a cognizable offence. According to Mr. Mohite, section 154 of the Code does not give any discretion to the officer in charge of a police station to make any inquiry to satisfy himself that a cognizable offence has been committed or has been disclosed when he receives an information which relates to commission of a cognizable offence. Mr. Mohite submitted that even if the information does not disclose a cognizable offence but relates to commission of a cognizable offence, he is bound to record the said information. 8. Mr. Mohite further submitted that it is pertinent to note that even in respect of non-cognizable offence, a mandatory duty has been cast upon the AJN 6 officer to enter substance of the information relating to the commission of the non-cognizable offence in the prescribed book. 9. Referring to section 156 of the Code, Mr. Mohite contended that this section provides unbridled power to the police officer to investigate a cognizable offence. The Magistrate cannot stop an investigation or sanction commencement of an investigation of a cognizable offence. Mr. Mohite pointed out that power is given to the Magistrate under section 156(3) of the Code to order an investigation and such power would naturally be exercised only in case the police officer refuses to investigate the matter. Mr. Mohite submitted that the refusal of the investigation is, therefore, controlled by the Magistrate and, hence, under the scheme of Chapter XII, the Magistrate is required to be kept informed at all stages starting from section 154. In case the police officer refuses to register the information under section 154 of the Code, the entire supervisory power to be exercised by the Magistrate under Chapter XII will become ineffective. 10. Mr. Mohite pointed out that section 157 of the Code, for the first time, gives discretion to the police officer to investigate the information. The only qualification is that he should have reason to suspect the commission of an offence. If he has no reason to suspect that an offence is committed or that AJN 7 he is satisfied that no offence is committed he has complete discretion to decide not to investigate the case. Mr. Mohite pointed out that whether the police officer decides to investigate or not, he has to send a report to the Magistrate about this fact. The discretion to investigate or not to investigate can only be exercised under section 157(1)(b) of the Code and not under section 154. If the police officer decides not to investigate then under section 157(2), he has to make a report stating reasons for not fully complying with the requirements of that sub-section. He has also to inform the complainant that he will not investigate the case. 11. Mr. Mohite then referred to section 158 of the Code and submitted that under this section report to the Magistrate has to be submitted through the superior officer appointed by the State Government. This section gives supervisory power to the superior officer over the report and actions which are taken by the police station officer. Mr. Mohite contended that if section 154 of the Code is held not to be mandatory then sections 157 and 158 would be rendered nugatory. 12. Drawing our attention to section 159, Mr. Mohite contended that this section gives supervisory power to the Magistrate over investigation into any complaint if the police refuse to investigate. If the police refuse to investigate, the Magistrate is empowered to direct an investigation under section 156 (3) AJN 8 or himself investigate the case. If section 154 is not held to be mandatory then even section 159 would be rendered totally nugatory as the information and the decision of the police not to investigate the case and the reasons to be given by the officer for not investigating the case could never reach the Magistrate. 13. Mr. Mohite submitted that at the stage of section 154, no discretion vests in the police station officer. He submitted that since the law prescribes the manner in which the police should investigate or decide not to investigate any information, any other mode introduced would be contrary to the law as set out in Chapter XII of the Code. According to Mr. Mohite, even frivolous complaints or false complaints or exaggerated complaints are required to be registered. Such complaints need not be investigated after registering the information. Even if the report is sent to this effect to the learned Magistrate, the learned Magistrate can satisfy himself that the decision taken by the police officer is correct. The informant is also informed that the police will not investigate the case so that he can take further steps according to law. Mr. Mohite submitted that the procedure provided by the court secures ends of justice and any view other than the one which is canvassed by him would defeat the ends of justice. In support of his submission Mr. Mohite placed heavy reliance on the judgment of the Supreme Court in State of Haryana & Ors. v. Bhajanlal & Ors., AIR 1992 SC 604. Mr. Mohite also relied on the AJN 9 judgments of the Supreme Court in State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221, Lallan Chaudhary & Ors. v. State of Bihar & Anr., 2006 SAR (Cri.) 934 and the judgment of this court in Dnyandeo Krishna Chaudhary & Anr. v. State of Maharashtra & Ors. (1999) 2 Mh.LJ 154. 14. Learned counsel Ms. Anjali Iyer adopted all the arguments of Mr. Mohite. In addition to that, she submitted that non-registration of crime will not serve the purpose of anybody. If the informant has given false information, after registration of the crime, the police can take proper action against him as per law for giving false information. Ms. Iyer submitted that even those persons against whom false allegations are made in the information given, can also take proper action against the informant for giving false information. But whether the information given is false or true can be established only after proper investigation of the crime registered on the basis of the information given by the informant. 15. Ms. Iyer submitted that it is true that the complainant can file a private complaint. But availability of an alternative remedy is no substitute for registration of FIR. According to Ms. Iyer refusal to register a FIR in spite of disclosure of cognizable offence amounts to dereliction of duty by police AJN 10 officer. Ms. Iyer submitted that if it is held that if the police do not register FIR, the complainant has to file a private complaint, the police will use it as a handle to drive some people to the Magistrate. It will also encourage discrimination at the hands of the police. In support of her submissions Ms. Iyer relied on the judgment of the Supreme Court in Ramesh Kumari v. State of Delhi & Ors., AIR 2006 SC 3376, Lallan Choudhary's case (supra), the judgment of this court in Dnyandeo's case (supra), the judgment of the Punjab and Haryana High Court in Gurjant Singh v. State of Punjab, 1998 Cri. L.J. 588 and the judgment of the Karnataka High Court in M.S. Saini v. Secretary, Department of Home, Bangalore & Ors., 2004 Cr.L.J. 553. 16. Learned counsel Mr. Kini adopted all the submissions of Mr. Mohite and Ms. Iyer. He placed reliance on the judgment of the Supreme Court in Bhajanlal' s case (supra) and Ramesh Kumari' s case (supra). He also relied on Mohindro v. State of Punjab, 2002 SCC Cri. 1087, Superintendent of Police, CBI v. Tapan Kumar Singh, 2003 SCC Cri. 1305 and Shakila Abdul Gafar Khan v. Vasant R. Dhoble, 2003 SCC Cri 1918. 17. Mr. Borulkar, the learned Public Prosecutor contended that after the judgment of the Supreme Court in Bhajanlal' s case (supra), there can be no doubt that if an officer in charge of a police station receives any information AJN 11 relating to the commission of a cognizable offence, he has no option but to reduce it in writing and register an offence. According to Mr. Borulkar, however, in certain cases, it is necessary to ascertain the truthfulness or otherwise of the allegations made in the complaint. He submitted that the modalities of ascertaining the truthfulness or otherwise would depend upon the nature of the allegations and the nature of the offence alleged. Mr. Borulkar contended that in case of criminal breach of trust or cheating, it may be necessary to ask the complainant to disclose cogent materials regarding the ingredients of such offence. Mr. Borulkar submitted that in an exceptional case, it is possible that no such exercise is necessary. According to Mr. Borulkar, whether a complaint discloses a cognizable offence or not is to be primarily decided on the basis of the contents of the complaint and the material in support thereof or as a result of discreet enquiry conducted by the police officer. Mr. Borulkar further submitted that in Shashikant v. Central Bureau of Investigation & Ors., JT 2006 (9) SCC 603, the Supreme Court has discussed the provisions of the CBI Manual which provides the procedure for preliminary enquiry and held that to carry out the preliminary enquiry even under the Code is not unknown. Mr. Borulkar then submitted that Rule 113(2) of the Police Manual provides for an enquiry before registration of FIR. He submitted that the provisions of the Police Manual and the provisions of CBI Manual have the same object and, therefore, the observations of the Supreme Court made while appreciating the procedure prescribed by CBI Manual AJN 12 would be equally applicable to the provisions of Rule 113(2) of the Police Manual. In support of his submissions, Mr. Borulkar relied on the judgments of the Supreme Court in Bhagwat Joshi's case (supra) and P. Sirajuddin Etc. v. State of Madars, Etc., 1970 (1) SCC 595 and the judgment of this court in Kotak Mahindra Bank Limited v. Nobiletto Finlease & Investment Pvt. Ltd. & Anr., 2005 (3) Mh.L.J. 512. Mr. Borulkar pointed out that the requirement of preliminary enquiry as contemplated in paragraphs 80 and 81 of Bhajanlal' s case (supra) is also held to be necessary in case of medical practitioners by the Supreme Court in Jacob Mathew v. State of Punjab & Anr. 2005 (6) SCC 1. Mr. Borulkar submitted that requirement of preliminary inquiry cannot be restricted to public servants or to doctors. Whether it is necessary or not will depend on facts and circumstances of each case. Mr. Borulkar further pointed out that alternative remedy of filing a private complaint is always open to a person who is aggrieved by the refusal of the police officer to register an offence. In this connection, he relied on Minu Kumari' s case (supra). He submitted that since alternative remedy of filing a private complaint is available, writ jurisdiction of this court should not be invoked in such cases. In this connection, he relied on Hari Singh v. State of U.P. (2006) 5 SCC 733. Mr. Borulkar contended that if the investigation officer considers it necessary to conduct preliminary enquiry before recording FIR, such officer shall record the information in the station diary before proceeding to enquire into the matter even for the purpose of ascertaining the AJN 13 truthfulness of the accusation. According to Mr. Borulkar, the station diary should disclose the steps taken towards preliminary enquiry by the police officer pursuant to the complaint lodged by any person. The preliminary enquiry should be completed by the police officer expeditiously and the officer who conducts it, must apprise the superior officer about the outcome of the preliminary enquiry and communicate the same to the complainant in the event he decides not to register the FIR based on his finding in the preliminary enquiry. If any officer refuses to register an offence, mala fide, though an offence is disclosed, the State Government can proceed against him departmentally. Mr. Borulkar urged that this court should hold that preliminary inquiry is legal because such a view will be in tune with the Supreme Court's judgments and the judgment of this court in Kotak Mahindra' s case (supra). 18. In reply, Mr. Mohite, the learned counsel for the petitioners contended that reliance placed by Mr. Borulkar on the above judgments is misplaced. He submitted that in Bhagwant Joshi' s case (supra), P. Sirajuddin' s case (supra) and in Shashikant' s case (supra), the Supreme Court was dealing with cases arising out of Prevention of Corruption Act. Requirement of preliminary enquiry in such cases assuming it is there, cannot be read into other cases. Ratio of those judgments is not applicable to the present case. Mr. Mohite submitted that in Shashikant' s case (supra), the Supreme Court has made a reference to Vineet Narain' s case (supra). In Vineet Narain' s case (supra), AJN 14 the Supreme Court has observed that the CBI Manual based on statutory provisions of the Code provides essential guidelines for CBI' s functioning. Referring to CBI Manual in Shashikant' s case (supra), the Supreme Court has held that it provides for a preliminary inquiry which in terms of paragraph 9.1 of the CBI Manual 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. Mr. Mohite contended that in Shashikant' s case (supra), the CBI had received an anonymous complaint. The question was whether it was obligatory on the part of respondent 1 to lodge a FIR and carry out a full-fledged investigation about the allegations made in the complaint. Mr. Mohite contended that on the basis of CBI Manual, the Supreme Court observed that a preliminary enquiry may be carried out to find out the truth or otherwise of the allegations contained in the complaint. Mr. Mohite contended that CBI Manual cannot be equated with Police Manual. Mr. Mohite submitted that the judgments cited by Mr. Borulkar refer to a totally different fact-situation. Mr. Mohite further submitted that the Supreme Court has not made a departure from its view in Bhajanlal' s case (supra) and that must prevail. 19. Before we proceed to deal with the arguments advanced by the learned counsel, it is necessary to reproduce section 154 of the Code. It reads thus : AJN 15 “154. Information in cognizable cases. - (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person given it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the information. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.” 20. We shall now refer to the various judgments on which reliance is placed by the learned counsel appearing for the parties. In our opinion, the judgment of the Supreme Court in Bhajanlal' s case (supra) sets at rest all doubts. We must begin with it. 21. In Bhajanlal' s case (supra), while dealing with the scope of powers of the High Court under Article 226 of the Constitution of India and under Section 482 of the Code in relation to quashing of the FIR, the Supreme Court AJN 16 laid down categories in which the said powers could be exercised. The Supreme Court also dealt with the legal principles governing the registration of a cognizable offence and the investigation arising therefrom. It is necessary to refer to the observations of the Supreme Court in the said judgment. 22. The Supreme Court has observed in that case that "the legal mandate enshrined in Section 154 (1) is that every information relating to the commission of a ' cognizable offence' , if given orally or in writing to an officer in charge of a police station and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as ' First Information Report' and which act of entering the information in the said form is known as registration of a crime or a case". 23. The Supreme Court further observed that "at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is AJN 17 statutorily obliged to register a case and then to proceed with the investigation, if he has reason to support the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157". 24. The Supreme Court further went on to say that "in case an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence, reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who, if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code". 25. The Supreme Court further observed that "in Section 154(1) of the Code, the legislature in its collective wisdom