IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 25 OF 2010 SHRI FRANK JULIO FERNANDES ... Petitioner Versus THE STATE LEVEL POLICE COMPLAINTS AUTHORITY THROUGH ITS MEMBER SECRETARY AND 5 ORS., ... Respondents Shri R. Satardekar, Advocate for the Petitioner Shri V. Rodrigues, holding for Shri C.A. Ferreira, Public Prosecutor for Respondent No.7. Shri Arun Bras De Sa, Advocate for the Respondent No. 6. Coram:- N. A. BRITTO, J. Date:- 28th October, 2010 ORDER Heard. 2. This Petition is directed against the order dated 08th February, 2010 of learned SPCA (State Police Complaint Authority) by which the complaint of the Petitioner dated 15th December, 2009 has been dismissed without examining the Petitioner. 3. Heard Shri R. Satardekar, learned counsel on behalf of the Petitioner, Shri V. Rodrigues on behalf of the Respondent No. 7, and Shri Arun Bras De Sa, learned counsel on behalf of the Respondent No. 6. 4. Shri R. Satardekar, learned counsel on behalf of the Petitioner objects to the manner the impugned order dated 08th February, 2010, has been worded and submits that no conclusive finding has been given by the learned SPCA. Learned counsel further submits that the learned SPCA after considering the complaint dated 15th December, 2009 was pleased to issue notice to Respondent No. 6 but after receiving the reply and without hearing the Petitioner on the said reply have closed the enquiry without examining the Petitioner. The learned counsel further submits that after the Respondent No. 6 had filed the reply to the Petitioner's complaint dated 15th December, 2009 it was obligatory on the part of the said SPCA to have heard the Petitioner and after enquiry decide the complaint of the Petitioner one way or other. Learned counsel submits that this a fit case which calls for interference from this Court to set aside the impugned order and remand the case to the SPCA for enquiry into the serious allegation made by the Petitioner by his complaint dated 15th December, 2009 against Respondent. No. 6. 5. Shri Rodrigues, the learned counsel on behalf of Respondent No. 7 pointing out to the Petitioner's complaint dated 15th December, 2009, submits that all that the Petitioner wanted the SPCA to do was to register a criminal case against Respondent No. 6, which has now been registered pursuant to the order dated 08th February, 2010 of the learned Judicial Magistrate, First Class at Panaji in Criminal Misc. Application No. 43/2010/B. The learned counsel further submits that the learned SPCA was satisfied with the reply filed by Respondent No. 7 and all that is required is that SPCA should be satisfied that there was no case made out for further enquiry and in this context the learned counsel has placed reliance on an unreported order dated 07th July, 2010, in Writ Petition No. 282 of 2009 in the case of Shri Joao Patricio Pereira Vs. Shri Kapil Nayak and Anr. 6. Shri Arun Bras De Sa, the learned counsel on behalf of the Respondent No. 6, submits that the allegation of extortion made by the Petitioner in his complaint dated 15th December, 2009 is clearly an afterthought based on legal advice as there was no such allegation made by the Petitioner in bail application filed on 15th December, 2009 or in the subsequent F.I.R. filed on the 25th November, 2009. 7. Learned Counsel concede that SPCA exercises quasi judicial functions whilst inquiring into allegation of misconduct of police officers, pursuant to the Judgment of the Apex Court in the case of Shri Prakash Singh & others Vs. Union of India ( 2006 (8) S.C.C. 1). It is also undisputed that SPCA is required to take cognizance of only allegations of serious misconduct by police persons, which includes instances of death, grievous hurt, rape in police custody and also allegations of extortion, land/house grabbing or other incidents involving serious abuse of authority. Upon enquiry the SPCA has powers to recommend for any action departmental or criminal, against the delinquent police officers, and any such recommendation is binding on the authorities concerned. In other words, it can be seen from the Judgment of the Prakash Singh (Supra) that SPCA has been entrusted to enquire into serious misconduct by the police officers and recommend either departmental action or filing of criminal case against the concerned delinquent police officer. 8. Admittedly, the SPCA did take cognizance of the complaint of the Petitioner, which included serious allegations, including the commission of the offence of extortion by Respondent No. 6, and called upon the Respondent No. 6 to file a reply. Further, the fact remains that the Petitioner was not called upon to give his say to the reply filed by Respondent No. 6 in as much as the Petitioner was also not heard into the allegation made by him against Respondent No. 6. The guidelines framed by the SPCA, a copy of which was sent to this Court, require it to treat the parties with equality and give fair and full opportunity to present his or her case. This does not appear to have been done by the Learned SPCA. The Learned SPCA having taken cognizance of the complaint of the Petitioner into the allegations which it found to be serious and having called upon the Respondent No. 7 to file his say, it was expected of the SPCA to have heard the Petitioner, and then only decide his complaint one way or other. In other words, the learned SPCA having taken cognizance of the complaint and having admitted it, ought to have enquired into it, and ought not to have dismissed it, after considering the say of the Respondent No. 6 alone. A right to a fair hearing also includes the right to rebutt adverse say, as contained in the reply filed. Rebuttal could have been done orally or in writing at the discretion of the Learned SPCA. Thus it can be seen that the Petitioner has been deprived of a right of fair hearing which is a part of principles of natural justice which are now ingrained in our system of laws, and which principles are required to be followed and any order passed in violation thereof has got to be considered as a nullity, and therefore liable to be set aside. 9. The submissions made on behalf of Respondent No. 6 will be required to be looked into and considered by the SPCA whilst giving a finding on the truthfulness of the complaint of the Petitioner. The submissions, made on behalf of Respondent No. 7 also need to be rejected as the Registration of the F.I.R. is not an outcome of the duties which are saddled on the SPCA in accordance with law as laid down by the Apex Court. In my view, the Learned SPCA having taking cognizance of the Petitioner's complaint, having admitted it and called upon the Respondent No. 6 to file a reply could not have closed the complaint by unilaterally accepting the reply of the Respondent No. 6 and without hearing the Petitioner, on the same. The Petitioner has thus been deprived of the right of a fair hearing. 10. As a result, the Petition deserves to succeed. The impugned order is hereby set aside, and learned SPCA is hereby directed to enquire into the complaint dated 15th December, 2009, as per guidelines framed by it. 11. The Petitioner and Respondent No. 6 to appear before the SPCA on 25th November, 2010 at 10 a.m. N. A. BRITTO, J. ars