W.P.(Crl.)71/2007 Page 1 of 20 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on : 03.02.2009 Date of decision : 25.02.2009 + W.P.(Crl.)71/2007 YOGESH GUPTA ……Petitioner Through: Kunwar C.M. Khan, adv. Versus THE SECRETARY (HOME) NCT OF DELHI & ORS. .......Respondents Through: Ms. Mukta Gupta, APP with Insp. Raj Kumar CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed Yes to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG, J. 1. This petition raises a substantial question of law as to whether:- i) The police can refuse to register an FIR on a complaint made by the complainant disclosing a cognizable offence under Section 154 Cr.P.C. ii) What remedies are available with the complainant on refusal to register an FIR. iii) What are the remedies available to the complainant who is aggrieved by the acquittal of the accused persons on the basis of a trial, which proceeds on an FIR which was registered against persons other than Sh. Anil Gupta. iv) Is it necessary to direct registration of a second FIR in the facts of this case despite availability of a remedy under Section 200 of the Code of Criminal Procedure (Cr.P.C.). W.P.(Crl.)71/2007 Page 2 of 20 2. Briefly stating the facts giving rise to the filing of present petition are:- i) In an unfortunate incident held on 13.02.2004 at 09:30 pm., One Surender Gupta was assaulted and grievous injuries were caused on his person and because of the same he succumbed to the injuries. ii) In respect of the aforesaid incident an FIR bearing No.113/2007 was registered under Section 302 IPC on a complaint filed by respondent No.1, Sh. Brij Mohan Gupta. iii) The said FIR was investigated and Brij Mohan Gupta & ors were arrested and were sent for trial before a Sessions Court after committal of the case by the Metropolitan Magistrate concerned. iv) The trial resulted in acquittal of the accused persons who were sent for trial vide judgment dated 16.12.2005, on account of the witnesses turning hostile including Sh. Anil Gupta who was the author of FIR No.113/2007 v) After the judgment of acquittal, the petitioner and his family members claims to have examined the case file of the trial Court and found that the photographs taken by the crime team on 14.02.2004 depicts that in fact the incident of murder of Sh. Surender Gupta took place in the house of Sh. Anil Gupta and on further inquiries they also came to know that Sh. Anil Gupta is the main culprit. On that basis, the petitioner as well as the sisters of the deceased filed a complaint with the police and other authorities on 17.04.2006 and 10.04.2006 alleging that, in fact, it was respondent No.1, Sh. Anil Gupta who was the real culprit and, therefore, a 2nd FIR be registered against him for murder of Sh. Surender Gupta under Section 302 IPC and W.P.(Crl.)71/2007 Page 3 of 20 to take further proceedings accordingly. However, no FIR has been registered though the complainants have been investigated by the officers of Delhi Police seven times but they have not found a case for registration of a second FIR, except by one of them. v) The petitioner also filed an application before the learned MM under Section 190(1)(b) of Cr.P.C. for registration of a case against Sh. Anil Gupta. However, the said application was dismissed by the learned MM on 11.01.2007 without recording any evidence, as no evidence has been led. 3. In these circumstances, the petitioner has now filed the present writ petition seeking direction against respondent No.2 to register an FIR against Sh. Anil Gupta. In support of his case the petitioner has relied upon the following judgments: 1. Ramesh Kumari Vs. State (Delhi) and Ors. (2006) 2 SCC 677. 2. Lallan Chaudhary and Ors. Vs. State of Bihar and Anr. (2006) 4 Crimes 164 3. Kari Chaudhary Vs. Mst. Sita Devi & Ors. (2002) 1 JCC 151 4. Nirmal Singh Kahlon Vs. State of Punjab & Ors. (2008) IX SLT 578 5. Priya Gupta Vs. State (Delhi) (2007) 2 JCC 1330 6. Sonu & Ors. Vs. Govt. of NCT 144 (2007) DLT 628. 4. The writ petition has been contested by the State. It is submitted y them that no such direction can be issued in this matter for the reasons, that no second FIR can be registered in respect of the murder of Late Sh. Surender Gupta since an FIR had already been registered in respect of his murder vide FIR No.113/2007 which was investigated and a charge sheet was also filed against the offenders after completing the investigation. The accused persons so booked were sent for trial before the competent Court but it resulted into their W.P.(Crl.)71/2007 Page 4 of 20 acquittal on account of the witnesses turning hostile. No protest has been raised against the said Judgment by the petitioner at bar for four months. 5. It has also been submitted that the complaint filed by the petitioner and the sisters of the deceased were also investigated but nothing has been found in those complaints warranting registration of a second FIR against Sh. Anil Gupta as prayed for by the petitioner. It has been submitted that the procedure which has been prescribed under Cr.P.C. provides for an alternative remedy in favour of the petitioner by filing a complaint under section 200 Cr.P.C. and if he is able to pursue further, his grievance by leading sufficient evidence. The Magistrate then can either direct further investigation under Section 156(3)Cr.P.C. and a direction to register an FIR or may proceed with the complaint by recording the evidence of the complainant as may be led by the petitioner and thereafter take cognizance of the offence against the culprit and then issue a process against him under Section 203 Cr.P.C. It is submitted that this course is open to the petitioner in view of the judgment of the Apex Court judgments delivered in Sakiri Vasu Vs. State of UP & Ors. 2008 (2) SCC 409 and Aleque Padamsee and Ors. Vs. Union of India & Ors. (2007) 6 SCC 171. 6. It is submitted that in view of the judgments of the Apex Court wherein all the judgments cited by the petitioner have been discussed no direction can be given in this case for issuance of an FIR against Sh. Anil Gupta as prayed for by the petitioner and therefore the writ petition is liable to be dismissed. 7. It may be observed that in the case of Aleque Padamsee (Supra) it has been held: 5. Section 156 deals with "Police officer's power to investigate cognizable cases" and the same reads as follows: (1) Any officer in charge of a police station may, without W.P.(Crl.)71/2007 Page 5 of 20 the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above- mentioned. 6 “4. When the information is laid with the police, b ut no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having 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 could issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Ors. It was specifically observed that a writ petition in such cases is not to be entertained. These aspects have been highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra, Minu Kumari and Anr. v. State of Bihar and Ors. and Hari Singh v. State of U.P. It was specifically observed in a writ petition in such cases is not to be entertained. The above position was again highlighted in Gangadhar Janardan Mhatre Vs. State of Maharashtra, Minu Kumari Vs. State of Bihar and Hari Singh Vs. State of UP. 7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences's case (supra) and re-iterated in Gangadhar's case (supra) the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumari's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu W.P.(Crl.)71/2007 Page 6 of 20 Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was re- iterated in Lallan Chaudhary and Ors. v. State of Bihar. The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Sections 190 read with Section 200 of the Code. It appears that in the present case initially the case was tagged by order dated 24.2.2003 with WP(C) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were de- linked from the aforesaid writ petitions. 8. The writ petitions are finally disposed of with the following directions: (1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed. (2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions. 8. It is also the submission of the respondents that in the present case if the petitioners was not satisfied with the result of the trial in respect of the FIR registered in respect of the murder of Late Sh. Surender Gupta, he could have filed a protest petition against the judgment of the acquittal and could have filed an application under Section 173(8) of Cr.P.C. for further investigation but instead of doing so, the petitioner had been approaching the respondent for carrying out a further investigation which though has been made on account of the incidences but nothing has been found which may call for registration of a second FIR against Sh. Anil Gupta in respect of the murder of Sh. Surender Gupta. 9. It is submitted that the judgments cited by the petitioner delivered in the case of Ramesh Kumari Vs. State of Delhi 2006 (2) SCC 677 and Lallan Chaudhary and Ors. Vs. State of Bihar and Anr. 2006 (4) Crimes 164 have no application to the facts of the present case. It is W.P.(Crl.)71/2007 Page 7 of 20 submitted that it is well settled law that the FIR is registered on the allegations of commission of cognizable offence irrespective of who the offender is. In the present case FIR had already been registered for commission of the cognizable offence of murder of Surender Gupta and after investigation a full fledged trial had taken place thereon. 10. It is stated that only four months after the acquittal of the accused the petitioner filed his complaint for registration of FIR. It is further submitted that an enquiry was conducted to find out whether there was any lapse on the part of police officers so that appropriate action could be taken. On detailed enquiries conducted first by the South District, then by the DCP/Vigilance of the Police Headquarters and then by the DCP/Legal Cell, it was found out that there was no lapse in the investigation conducted in respect of FIR No. 113/2000 was on the right line. 11. It is submitted that the decision of the Supreme Court in the case of Kari Chaudhary Vs. Mst. Sita Devi and Ors. 2002 (1) JCC 151 also has no relevance as in that case after the registration of first FIR, investigation was carried out and it was found out that the first respondent who was complainant and other family members were culprits, hence, another FIR was registered against the first respondent and her family therein. Here neither during earlier investigation, nor during subsequent enquiry it has been found Anil Gupta author of FIR No. 113/2000 was guilty of committing murder of Shri Surender Gupta. 12. It is also submitted that the reliance of the petitioner on the decision in the case of Nirmal Singh Kahlon Vs. State of Punjab & Ors. 2008 IX SLT 578 is also misplaced. No additional material has been shown by the petitioner except the photographs and reliance placed W.P.(Crl.)71/2007 Page 8 of 20 upon the statement of one witness, namely, Shri Krishna who has been examined by Inspector Mahavir Singh who gave a one-sides report of enquiry making out a case against Shri Anil Gupta. As the facts of the case are entirely different in that case in the light of the facts which came on record where it was seen that the senior officers of the Police and the Ministers etc. were trying to save the real culprits, directions were given for the registration of the second FIR. However, in the present case, nothing has been brought to the notice of the authorities by the petitioner as to how Shri Anil Gupta is responsible for committing murder of late Shri Surender Gupta. The enquiry report given by Inspector Mahavir Singh on which the petitioner is placing reliance is one-sides and is based upon the statement given by one Shri Krishna who gave a different statement when he was examined earlier under Section 161 Cr.P.C during the course of investigation of the first FIR as also before the trial and, therefore, no circumstance has been brought to the notice of the authorities which may justify registration of a second FIR. It is also submitted that the photographs referred to by the petitioner in support of his complaint were also available on records of the first case. As stated above in respect of the findings returned by the Trial Court in respect of the said FIR the petitioner has not filed any protest petition. 13. To appreciate the controversy, it would be appropriate to take note of his complaint filed before the Deputy Commissioner of Police as well as the complaint filed by the sisters of the deceased in support of their contention that Sh. Anil Gupta is, the real culprit and is guilty of murder of Shri Surender Gupta. Having scruitinized the complaint of Sh. Yogesh Gupta, I do not find that any material has been placed by W.P.(Crl.)71/2007 Page 9 of 20 him on record, which may throw any light as to how Sh. Anil Gupta is the real culprit. In fact the complaint filed by him goes to show that there is some business rivalary between the petitioner and Sh. Anil Gupta. 14. Regarding the complaint filed by the sisters of the deceased, it may be observed that they are not a party to the present proceedings. However from the copies filed, one thing which comes out is that the petitioner and the family of Sh. Anil Gupta hails from the same village and they also had some dispute with each other inasmuch as it has been stated by Smt. Renu Gupta that, “One Anil Gupta son of Late Sh. Sahukar Gupta, presently residing at TA-83/5, Tughlakabad, New Delhi-110019 also hails from our native place and has been a front door neighbor there. At that relevant point of time at the native place, as we are equipped with the remote information, our parents, somewhere, were a matter of jealousy to the family of said Sh. Anil Gupta and others as; we were carrying on an influence in the society through our business. I do not know the exact time and date but Anil Gupta and his brothers had long back shifted to Delhi for the sake of their livelihood, but, kept on having undue interference in the affairs of the village, through their anti-social connections. As we had sustained irreparable loss through those crimes committed upon us at our native place, we were leading a very insecure life there. The threats of the continuing vandalism and kidnapping of my brothers were also overwhelming always. Our mother in such a piquant situation, shifted us to the place of our maternal uncle at Jaipur and at other relations. But, the agony to fight with the fractured life was not over as we have been able to discern it now, the above named Anil Gupta, asked and persuaded my mother and brothers to shift to Delhi, as it has been comparatively safer and better for the avenues for the livelihood. It was a fraudulent move. Primarily, our elder brother Shri Manoj Gupta @ Bhola came to Delhi to save himself as he had been the prima target at the native place. Later on, my mother late Smt. Rajbeti and my younger brothers and sister Sh. Yogesh, Surendra and Poonam followed. My maternal uncle from Jaipur, where I had passed my adolescence, got me married at Garhi, Lajpat Nagar, New Delhi in the year Dec.,1992. My younger sister Poonam in the year 1998 was married at Agra, presently she also having shifted at Delhi. Now, we had been able to fathom the intentional move by Anil Gupta, to uproot all of us from our native place and that‟s why, after finding all of us away from our native place, he and his brothers had remained negligent and elusive in nature. So many times we all had been subjected to victimization and humiliation. It had been very painful to all of us. 15. Other allegations made in the complaint are, W.P.(Crl.)71/2007 Page 10 of 20 “It would be most apposite to mention here itself that the criminal jealousy of Anil Gutpa and his brothers extended even to Brij Nandan Gupta and others, who verily speaking, had brought them to such a position that they could earn their livelihood with prestige and peace. Though, the criminal act of Anil Gupta and his team, had been stanching the society, as per their status but, we could never comprehend that, their escalatory criminal activities could be so devastating. Unfortunately, our distant caution to our late brother Surendra Gupta, could not yield any result, as the brother of Anil Gupta, namely, Raj Kumar Gupta @ Reetu kept him in his company and he could not assess the sensitivity of this criminal companionship that any day, as conspired, calculated and as per the criminal move, he could be put to the alter for the sake of the criminal boost of the business of said Anil Gupta.” 16. I may also take note of the other allegation made by Renu Gupta in her complaint dated 07.04.2006 raising certain issues which it is alleged points out involvement of Anil Gupta in the murder of Surender Gupta the deceased. Some of them are reproduced here under: (a) What is the real place of incident of murder? Note: The circumstances and the scene of crime through available evidence, carried us inside the house of Anil Gupta i.e. House No. 83/5, Tughlakabad Extension, New Delhi. (b) Why the dead body was dragged out of the house and placed in the „gali‟? Note: Neither of us nor any other public person allowed by Anil Gupta and his associates to see the victim and did not let him, immediately to be taken to the hospital, inclusive of themselves. (c) Why at all none of the persons inclusive of us were allowed to go inside the house, where this incident took place? And why at all the rear gate of the house was used and before the police could collect, material evidence the whole house/ spot was washed with water? Note: It, had been simply to avoid the suspicions go to the side of Anil Gupta and also as the incident had taken place inside the house. (d) Where are those unnumbered vehicles (Two wheeler and Car), and ¾, armed persons, inside the house as is known so lately but known publicly? Note: Bullet marks outside and inside the wall and roof of the house and injuries to so many persons proves the presence of more of the arm and the people. (e) Why at all, the deceased Surendra Gupta, his brother Manoj and Yogesh, were summoned by Anil Gupta and his team on telephone, prior to the incident as narrated especially when, my these three brothers, do not have any such gusto to face and they are absolutely peace loving? Note: Unfortunately, the deceased fell trap having come so early otherwise, my these brothers are not so closed to Anil Gupta and his associates and they are also not inimical to Brij Nandan Gupta and his relatives. Most probable, factor of calling my brothers, at such alleged incident, marks the extreme innocence of these persons and also that they could W.P.(Crl.)71/2007 Page 11 of 20 be goaded easily. The additional concerning fact is that, that Brij Nandan Gupta is our distant relation and all of them have been standing in our thick and fast. (f) Who is the personh, who informed the police “Meera Bhai Mar Diya” as none of my alive brothers had communicated so to the police? Note: Appreciably, and as it would be unearthed that this master mind Anil Gupta and his Associates wanted to paste this twisted fact also, upon us, if the fraudulent move against Brij Nandan Gupta and others had killed our brother as per the testimony of my two remaining brothers. (g) In the event, deceased Surendra Gupta, was none of the relations of Anil Gupta, except criminal thought process, what else was in him, that he with all constancy and vigil, opposed the judicial moves by Brij Nandan and others and also