CIVIL WRIT PETITION NO.1655 OF 2008. ::-1-:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P NO. 1655 OF 2008 DECIDED ON : 19.05.2009 Rakesh Kamboj ...Petitioner versus State of Haryana and others ...Respondents CORAM : HON'BLE MR. JUSTICE SURYA KANT Present : Mr. Pankaj Nanhera, Advocate, for the petitioner. Mr. R. D. Sharma, DAG, Haryana. Mr. Narender Hooda, Advocate, for respondents NO.5 and 7. Mr. K. S. Chahal, Advocate, for respondent No.6. SURYA KANT, J. (ORAL) The petitioner has invoked the writ jurisdiction of this Court to issue a direction to the official respondents to register FIR against respondents No.5 to 7 and others and thereafter hold an impartial and fair investigation in the case. (2). The petitioner is stated to be a member of the Haryana Legislative Assembly and claims himself to be the supporter of a former Chief Minister, now in opposition. He alleges that when a peaceful rally was being held by the political party to which he belongs, large scale excesses were committed by the police and other authorities and in particular, targeted him so as to physically eliminate him as is apparent from the photographs on record CIVIL WRIT PETITION NO.1655 OF 2008. ::-2-:: (Annexure P-1). The petitioner has given his own version as to how he was chased by some senior police officers at the instance of the higher authorities and was subjected to merciless beatings and torture. The petitioner also relies upon the medico-legal reports (Annexure P-3). The petitioner is alleged to have made a specific complaint dated 20.12.2007 (Annexure P-4 to the Senior Superintendent of Police, Karnal the contents of which make out a cognizable offence but no action has been taken thereupon. The petitioner has impleaded respondents NO.5 to 7, who are the police officials and the then Sub Divisional Magistrate, against whom specific allegations of abuse of power and/or personal malice have been levelled. (3). Notice of motion was issued and in response thereto, the Senior Superintendent of Police, Karnal has filed his reply-affidavit on behalf of all the respondents, including the private respondents No.5 to 7. (4). The police authorities have come up with the plea that the petitioner and his supporters were creating law and order problem and had obstructed the flow of traffic on the G.T.Road and in order to ensure that no inconvenience was caused to the general public that the law and order maintenance force swang into action. It is claimed that a mob of 500/600 people had gathered and they were adamant to block the G.T.Road and did not adhere to the warning given by the Sub Divisional Magistrate. (5). The matter was heard at length on more than one occasions and on February 20, 2009, the following order was CIVIL WRIT PETITION NO.1655 OF 2008. ::-3-:: passed:- “Having heard learned counsel for the parties for some time, prima-facie, I am satisfied that the police authorities of Karnal District have attempted to hush up the matter and their reluctance to register FIR, even when a clear case of cognizable offence is made out or to hold investigation in a fair, impartial and dispassionate manner, speaks volumes. Let the Superintendent of Police, Karnal be present in Court on the adjourned date and explain as to why the matter be not entrusted for investigation to some independent agency”. (6). The Senior Superintendent of Police, Karnal has filed an additional affidavit dated 15.05.2009 reiterating that the petitioner cannot claim registration of First Information Report as a matter of right and that his allegations have already been got 'inquired' and found without any substance. (7). I have heard learned counsel for the parties at some length and perused the records. (8). Section 154 of the Code of Criminal Procedure, 1973 (in short, the Code) obligates that every information relating to commission of a cognizable offence, whether given orally or in writing, is required to be reduced in writing and registered. In the common parlance, the same is known as First Information Report. On registration, the FIR is required to be investigated in accordance with the provisions contained in Chapter XII of the Code. (9). After the investigation is over, the Officer Incharge is obligated to submit a report under Section 173 of the Code to the CIVIL WRIT PETITION NO.1655 OF 2008. ::-4-:: Magistrate empowered to take cognizance of the offence and on receipt thereof, it is for the Judicial Magistrate to take further action which may include taking cognizance of the offence, acceptance of the cancellation report or a direction for further investigation. (10). It is well settled that when a complaint discloses prima facie commission of the 'cognizable offence', the police authorities have no choice but to reduce the same in writing and register it as a First Information Report. The power to hold a 'preliminary inquiry' though not explicit but even if it is assumed, the same can be exercised only to ensure that no FIR is registered on the basis of a totally false, concocted or fabricated facts so as to cause harassment to innocent people. [11]. In State of Haryana & Ors. V Ch. Bhajan Lal & Ors., AIR 1992 SC, 604, it was ruled that when an information lodged with police discloses cognizable offence, the police has statutory duty to register a case and proceed with investigation and it can not refuse to register a case on the ground that the information is not reliable and credible and embark upon an inquiry before registering the case. In Ramesh Kumari v State NCT of Delhi & Ors., 2006[2] SCC, 677 their Lordships of the Supreme Court reiterated that when the report lodged with the police discloses cognizable offence, it is mandatory under Section 154 Cr.P.C. for the police to register FIR and that genuineness or otherwise of the information can only be considered after registration of the case. In Lallan Chaudhary & Ors. V State of Bihar & Anr. 2006[12] SCC, 229, it has again been held that the police officer is duty bound to register an FIR on CIVIL WRIT PETITION NO.1655 OF 2008. ::-5-:: receiving an information of a cognizable offence and that reliability of information is not a condition precedent for registration of FIR. In Parkash Singh Badal & Anr. V State of Punjab & Ors., 2007[1] SCC, 1 the Supreme Court re-affirmed its earlier view that when an information disclosing cognizable offence is laid with the officer incharge of the Police Station, the officer has statutory duty to register the case and 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. (12). It is not desirable or expedient for this Court to express even prima facie opinion on the merits of the petitioner's allegations. Suffice it to say that the photographs coupled with the nature of injuries suffered by the petitioner as per the medico-legal reports, it will be too far-fetched to accept the version of those very police authorities who are being accused of the murderous assault on the petitioner. It cannot be plainly accepted that the amount of 'force' apparently used was an attempt to prevent the unruly mob from obstructing the traffic on the National Highway. In any case, such like factual conclusions could be drawn only after the petitioner's complaint regarding commission of a cognizable offence was registered and investigated as per law. Unfortunately, the local police, against whom the petitioner has made serious allegations, has become Judge in their own cause. The officers against whom specific allegations have been made, have not come forward to deny the same. The Senior Superintendent of Police, Karnal, who does not even claim to be present at the spot, cannot defend the un- CIVIL WRIT PETITION NO.1655 OF 2008. ::-6-:: witnessed incident by filing his own affidavit, which shows nothing but the over-anxiety of the authorities to hush up the matter. (13). The nature of injuries as indicated in the medico-legal report or shown in the photographs or alleged by the petitioner, if found to be correct, might amount to commission of a cognizable offence. It was, therefore, imperative upon the police authorities to register the First Information Report, hold an investigation and submit the report under Section 173 of the Code of Criminal Procedure, leaving it to the discretion of the Judicial Magistrate to proceed further in accordance with law. (14). At this stage, the apprehension expressed by learned counsel for the private respondents may also be noticed. It is stated that the registration of First Information Report will amount to presuming that the police officers acted beyond their powers. Suffice it to observe that there is no legal compulsion to mention the names of the suspects in the FIR even when there is none. What is required in law is the registration of a report regarding commission of a 'cognizable offence' and thereafter to hold a fair and impartial investigation to trace out the offenders. The question as to whether or not the private respondents or any other official is involved in deliberately causing physical assaults to the petitioners, is a question of fact to be answered by the Investigating Officer in his report under Section 173 Cr.P.C. The said investigation report then would be scrutinized by the Court of competent jurisdiction. Unfortunately, the respondents, for the reasons best known to them, are adamant and obstinate in refusing to follow the procedure as prescribed under the CIVIL WRIT PETITION NO.1655 OF 2008. ::-7-:: Code. (15). For the reasons afore-stated, the writ petition is allowed. The Senior Superintendent of Police, Karnal is directed to register the First Information Report, though not necessarily by naming the private respondents and/or any other person suspected to be involved. Since the petitioner has made serious and specific allegations against the local police, the Additional DGP, Crime Branch, Haryana is directed to constitute a Special Investigation Team (SIT) to be headed by an officer not below the rank of Dy. Superintendent of Police with two more police officers as its members, who must not be amongst those who were posted at Karnal at the relevant time. The matter shall be handed-over forthwith to the Special Investigation Team for investigation to be concluded as early as possible, but not later than three months from the date of receipt of certified copy of this order. The further action in the matter would be taken depending upon the outcome of the investigation. Disposed of. Dasti. MAY 19, 2009 (SURYA KANT) shalini/dinesh JUDGE