IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.W.P. No. 22/2010 Reserved on: 22.2.2011 Decided on:24.2. 2011 _____________________________________________ Satvir Kaur. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Ms. Archana Dutt, Advocate. For the Respondents: Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. for respondents No.1 to 5. ____________________________________________________ Per Justice Rajiv Sharma, Judge. A letter dated 1.11.2010 addressed by the petitioner to Hon’ble the Chief Justice has been treated as Criminal Writ Petition. 2. Material facts necessary for the adjudication of this criminal petition are that petitioner’s marriage was solemnized with one Sh. Vijender Singh. Petitioner is 1 Whether reporters of the local papers may be allowed to see the judgment? 2 permanent resident of Jagatpur, Post Office Joghon. Petitioner’s husband Sh. Vijender Singh was attacked by respondents No. 6 to 11, as per the averments contained in the letter dated 1.11.2010. He received multiple injuries on his body. Petitioner alongwith her husband went to Police Post Joghon to lodge the complaint and also for medical examination in the evening. The couple was made to sit in the Police Post till 5.00 P.M. They were told by the police to go to Nalagarh for medical examination. The couple left for Nalagarh around 5-6 P.M. They were also chased by the private respondents. They reached Police Station, Nalagarh and persisted for the registration of an F.I.R. as well as medical examination. The Police personnel, present in the Police Station, were reluctant to register the F.I.R. and also to get the petitioner’s husband medically examined. It was after the great persuasion that the petitioner’s husband was sent for medical examination. He was medically examined and found to have received injuries on his body, as mentioned in daily diary dated 6.6.2010 at page 11 of the paper book. Further investigation was not carried out only on the pretext that the X-ray was to be conducted. 3. Petitioner’s husband left his house on 6.6.2010 on his tractor for refueling. He came back and was seen by 3 the Pradhan of the Gran Panchayat. He was also seen in conversation with the priest at 11.00 P.M. The private respondents were also seen by the villagers around the place where the petitioner’s husband was in conversation with the priest. Petitioner’s husband never came back and the petitioner suspected that her husband has been kidnapped and after killing him, his body has been disposed of. The incident was brought to the notice of police personnel posted at Police Post, Joghon on 7.6.2010. Petitioner met Sub Divisional Police Officer, Nalagarh on 22.6.2010 and thereafter made representation to the Sub Divisional Magistrate, Nalagarh on 24.6.2010. She also narrated the incident to the Superintendent of Police, Baddi on 26.6.2010. She again went to see the Deputy Superintendent of Police on 3.7.2010. She went to the Police Station on 11.7.2010 and lodged the complaint. The copy of the complaint is at page 8 of the paper book. However, the fact of the matter is that no F.I.R. was registered even on the basis of complaint dated 11.7.2010 disclosing commission of cognizable offence. 4. Case of the petitioner, in a nutshell, is that despite her best efforts by bringing to the notice of the police that cognizable offence has been committed, no F.I.R. 4 has been registered till date. The Court had directed the Superintendent of Police, Baddi to file his affidavit. The affidavit has been filed by him, sworn on 1.1.2011. 5. We have gone through the contents of the affidavit. Sum and substance of the affidavit is that efforts were made to search the husband of the petitioner. There is no averment why F.I.R. was not registered. Petitioner’s husband was beaten up by the private respondents, as is evident from daily diary dated 6.6.2010. The F.I.R. was required to be registered either at Police Post Joghon or Police Station, Nalagarh. Petitioner was made to sit at Police Post Joghon till 5.00 P.M. and thereafter told to go to Nalagarh. It was with great difficulty that petitioner’s husband was medically examined. Petitioner’s husband has received injuries as per the contents of daily dairy dated 6.6.2010. Petitioner’s husband went missing on 6.6.2010. He was seen alive by the Pradhan of the Gram Panchayat and he was also seen in conversation with the local priest. Private respondents were seen by the villagers around the temple. Petitioner has filed the complaint with the Police Post Joghon on 7.6.2010, as noticed above, met the Sub Divisional Police Officer, Nallagarh on 22.6.2010. The Sub Divisional Magistrate concerned was informed on 24.6.2010 5 and the Superintendent of Police, Baddi was also informed on 26.6.2010. She again visited the office of Deputy Superintendent of Police on 3.7.2010. Ultimately, she filed written complaint on 11.7.2010 at page 8 of the paper book at Police Station, Nalagarh mentioning specifically therein that she suspected that her husband has been kidnapped by private respondents and after killing him his body has been disposed of. 6. The facts enumerated hereinabove read with contents of daily diary and complaint dated 11.7.2010 disclose commission of cognizable offence. It was bounden duty of the police to register F.I.R. and to investigate the matter. The affidavit filed by the Superintendent of Police, Baddi does not inspire confidence. It conceals more and reveals less. 7. It is no more res integra that duty is cast upon the police concerned to register the case on receiving information disclosing cognizable offence and genuineness and credibility of the information is not a condition precedent for registration of a case [See (2006) 2 SCC 677]. 8. Their Lordships of the Hon’ble Supreme Court in Lalita Kumari versus Government of Uttar Pradesh and others, (2008) 7 SCC 164 have taken a serious view where there was inaction on the part of police to record F.I.R. Their Lordships have held as under: “4. It is a matter of experience of one of us (B.N. Agrawal, J.) while acting as Judge of the Patna High 6 Court, Chief Justice of the Orissa High Court and Judge of this Court that in spite of law laid down by this Court, the police authorities concerned do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. Further, experience shows that even after orders are passed by the courts concerned for registration of the case, the police does not take the necessary steps and when matters are brought to the notice of the inspecting Judges of the High Court during the course of inspection of the courts and Superintendents of Police are taken to task, then only FIRs are registered. In a large number of cases investigations do not commence even after registration of FIRs and in a case like the present one, steps are not taken for recovery of the kidnapped person or apprehending the accused person with reasonable dispatch. At times it has been found that when harsh orders are passed by the members of the judiciary in a State, the police becomes hostile to them, for instance, in Bihar when a bail petition filed by a police personnel, who was the accused was rejected by a member of the Bihar Superior Judicial Service, he was assaulted in the courtroom for which contempt proceeding was initiated by the Patna High Court and the erring police officials were convicted and sentenced to suffer imprisonment. 5. On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the accused and recovery of the kidnapped persons and the properties which were the subject-matter of theft or dacoity. In the case before us allegations have been made that the Station House Officer of the police station concerned is pressurising the complainant to withdraw the complaint, which, if true, is 7 a very disturbing state of affairs. We do not know, there may be innumerable such instances. 6. In view of the above, we feel that it is high time to give directions to the Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of FIRs immediately and copies thereof are not made over to the complainants, they may move the Magistrates concerned by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the FIRs to the complainants, within twenty-four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were the subject-matter of theft or dacoity. In case FIRs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the Magistrate concerned would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the disciplinary authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same. 7. Keeping these facts in mind, we are of the view that notices should be issued to the Government of all the States and Union Territories besides the Director Generals of Police/Commissioners of Police, as the case may be. 8. Issue notice to the Chief Secretaries of all the States and Union Territories and the Director Generals of Police/Commissioners of Police, as the case may be, to 8 show cause as to why aforesaid directions be not given by this Court. 9. Their Lordships of the Hon’ble Supreme Court in Lallan Chaudhary and others versus State of Bihar and another, (2006) 12 SCC 229 have held that section 154 of the Code of Criminal Procedure casts a statutory duty upon the police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. Their Lordships have held as under: “2. This appeal is preferred by the accused, nine in numbers, against the judgment and order dated 8.10.2002 passed by the High Court whereby the High Court directed the concerned Magistrate to proceed in the matter in accordance with law as contained in Section 209 of the Code of Criminal Procedure. 8. Section 154 of the Code thus casts a statutory duty upon police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. 9. In the case of Ramesh Kumari v. State (NCT of Delhi) and Ors. (2006) 2 SCC 677 this Court has held that the provision of Section 154 is mandatory. Hence, the police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be considered after registration of the case. 9 10. The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence, the police officer concerned 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 relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Code. 11. In the present case, undisputedly, the cognizable offences disclosed in the complaint, were under Sections 147, 148, 149, 448, 452, 323 and 395 IPC. The complaint was filed before the Sub-Divisional Judicial Magistrate and the same was endorsed to SHO of concerned Police Station for registering the FIR under Section 154 of the Code. The concerned SHO of the Police Station registered the case only under Sections 452/380/323/34 IPC. Section 395 IPC, which had been disclosed in the complaint, was excluded from the purview of the FIR and resultantly no investigation was carried out by the Police in terms of Section 156 and 157 of the Code of Criminal Procedure. It is well settled principle of law that in criminal trial, investigation is preceded by an FIR on the basis of written complaint or otherwise disclosing the offence said to have been committed by the accused. In the present case, a grave miscarriage of justice has been committed by the SHO of concerned Police Station by not registering an FIR on the basis of offence disclosed in the complaint petition. The concerned police officer is statutorily obliged to register the case on the basis of the offence disclosed in the complaint petition and proceed with investigation in terms of procedure contained under Sections 156 and 157 of the Code. The FIR registered by the Police would clearly disclose that the complaint for offence under 10 Section 395 IPC has been deliberately omitted and, therefore, no investigation, whatsoever, was conducted for the offence under Section 395 IPC. 12. It is unfortunate that the Trial Magistrate has failed to notice that in the complaint filed before the Sub-Divisional Judicial Magistrate an offence under Section 395 IPC has been disclosed, amongst others. The Trial Magistrate accepted the charge framed under Sections 452/323/34 IPC mechanically without application of mind. The District and Sessions Judge also failed to take notice the miscarriage of justice by the Trial Judge. It is, in these circumstances that the High Court has, in our view, justly corrected the error committed by two Courts. In our view, therefore, the impugned order of the High Court does not suffer from any infirmities. 10. In the instant case, Mr. R.K. Sharma, learned Senior Additional Advocate General has only argued that few persons were interrogated. The police has put the cart before the horse. The F.I.R. was required to be registered at the first instance and thereafter the matter was to be investigated. 11. The sequence of events shows complete insensitivity, callousness and apathy on the part of the police. The young lady has been made to run from pillar to post even for registration and investigation of the case. It is the duty cast upon the Senior Police Officers to supervise their subordinates and to see periodically whether the F.I.Rs. are being registered with promptitude and the matter are 11 being investigated in accordance with law or not. In the case in hand, petitioner has visited the offices of Superintendent of Police, Sub Divisional Magistrate and Sub Divisional Police Officer merely for the registration of F.I.R. She has given minute details the manner in which her husband was beaten up by private respondents on 5.6.2010. She has narrated the manner in which her husband disappeared on 6.6.2010 after the private respondents were seen on the spot. It was a serious matter and did not brook any delay. Petitioner has inherent right to protect her life as most as the life of her husband, as envisaged under Article 21 of the Constitution of India. The police has shown scant regard to the mandatory provisions of section 154 of the Code of Criminal Procedure and most cherished Article of liberty, i.e. Article 21 of the Constitution of India. It is a case, which requires merely not directing the police to register a case but also to compensate the petitioner for the agony, pain and harassment, she has undergone due to inaction on the part of the police. 12. Their Lordships of the Hon’ble Supreme Court in Nilabati Behera (Smt.) alias Lalita Behera (through the Supreme Court Legal Aid Committee) versus State of Orissa and others, (1993) 2 SCC 746 have held that 12 enforcement of the Constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. Their Lordships have held as under: “10. In view of the decisions of this Court in Rudul Sah v. State of Bihar (1983) 3 SCR 508 : (AIR 1983 SC 1086), Sebastian M. Homgray v Union of India (1984) 1 SCR 904 : (AIR 1984 SC 571) and (1984) 3 SCR 544 : (AIR 1984 SC 1026), Bhim Singh v. State of J. & K., 1984 (Supp) SCC 504 and (1985) 4 SCC 677 : (AIR 1986 SC 494), Saheli, A Women's Resources Centre v. Commr. of Police, Delhi Police Headquarters (1990) 1 SCC 422 : (AIR 1990 SC 513) and State of Maharashtra v. Ravikant S. Patil (1991) 2 SCC 373 : (1991 AIR SCW 871) the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. it would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceeding under Art. 32 by this Court or by the High Court under Art. 226 of the Constitution is a remedy 13 available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle. 16. Lord Hailsham while dissenting from the majority regarding the liability for compensation in that case, concurred with the majority opinion on this principle and stated at page 687, thus :- ".............. I am simply saying that, on the view I take, the expression 'redress' in sub-s. (1) of S. 6 and the expression 'enforcement' in sub-s. (2), 'although capable of embracing damages where damages are available as part of the legal consequences of contravention, do not confer and are not in the context capable of being construed so as to confer a right of damages where they have not hitherto been available, in this case against the state for the judicial errors of a judge ................." Thus, on this principle, the view was unanimous, that enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. 17. It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the 14 enforcement of a fundamental right is 'distinct from, and in addition to the remedy private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Arts. 32 and 226 of the Constitution. This is what was indicated in Rudul Sah (AIR 1983 SC 1086) and is the basis of the subsequent decisions in which compensation was awarded under Arts. 32 and 226 of the Constitution, for contravention of fundamental rights. 22. The above discussion indicates the principle on which the Court's power under Arts. 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah (AIR 1983 SC 1086) and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein. do not really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal (AIR 1965 SC 1039) distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear 15 case for award of compensation to the petitioner for the custodial death of her son.” 13. Similarly, their Lordships of the Hon’ble Supreme Court in Punjab and Haryana High Court Bar Association versus State of Punjab and others (1996) 4 SCC 742 have held as under: “2. The abduction and murder of Kulwant Singh and his family was the most heinous crime against humanity. It has taken a mysterious and an extremely shocking turn by the finding of the CBI that Harpreet Singh Lucky has been falsely implicated in the case. The CBI report indicates that under pressure from the police and finding no other alternative to save his life he agreed to their proposal to accept the murder of Kulwant Singh and his family members. Mr Navkiran Singh has rightly contended that the least this court can do at this stage is to compensate the old parents of Kulwant Singh. J.S. Verma, J. speaking for this court in Nilabali Behera v. State of orissa held as under "It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of 16 such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers,