*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY + WRIT PETITION Nos.9210 of 2007 and 27524 of 2009 % Dated 23-8-2010 W.P.No.9210 of 2007 # Sammeta Laxman … Petitioner Vs. $ The Government of A.P., rep., by its Principal Secretary, Dept., of Home, Hyderabad & others. … Respondents ! Counsel for the petitioner: Sri Ammaji Nettam for (in WP.No.27524 of 2009) Sri K. Sai Krishna Mohan Rao ^ Counsel for respondents 1&2: AGP for Home (in WP.No.27524 of 2009) Counsel for respondent No.3: Sri D. Jagan Mohan Reddy (in WP.No.27524 of 2009) <Gist: >Head Note: ? Cases referred: 1. 1992 Supp (1) SCC 335 2. (2006) 2 SCC 677 3. (2007) 1 SCC 1 4. 2007 (1) ALD (Crl.) 1032 (AP) 5. (2008) 2 SCC 409 6. AIR 1972 SC 283 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY MONDAY, THE TWENTY THIRD DAY OF AUGUST, TWO THOUSAND TEN WRIT PETITION Nos.9210 of 2007 and 27524 of 2009 W.P.No.9210 of 2007 Between: Sammeta Laxman … Petitioner And The Government of A.P., rep., by its Principal Secretary, Dept., of Home, Hyderabad & others. … Respondents Counsel for the petitioners: Sri Ammaji Nettam for (in WP.No.27524 of 2009) Sri K. Sai Krishna Mohan Rao Counsel for respondents 1&2: AGP for Home (in WP.No.27524 of 2009) Counsel for respondent No.3: Sri D. Jagan Mohan Reddy (in WP.No.27524 of 2009) This Court made the following: COMMON JUDGMENT:- The short, but the vexed question, which is a breeding ground for needless litigation arising in these cases is whether the police officer has any discretion not to register the case after entering the substance of the complaint in the prescribed book (general diary), even though the contents of the information received by him disclose commission of cognizable offence/offences? Before addressing this question, the facts in each of these two writ petitions are separately stated hereunder: W.P.No.9210 of 2007 There appeared to be matrimonial disputes between the petitioner’s son and his daughter-in-law. The latter allegedly approached respondent No.5, who at the time was the Sub-Inspector of Police and Station House Officer of Gangadhara Police Station, Karimnagar District. The petitioner alleged that at the instance of his daughter-in-law, respondent No.5 used to call him and his family members to the police station daily and abuse in filthy language without registering any case against them. That on 10.01.2007 at 12 noon, respondent No.5 called the petitioner and his family members to the police station, beat them up indiscriminately with a stick and that in that process the petitioner sustained a bleeding injury inside his left eye, following breaking of his optical. The petitioner alleged that initially the police have taken him to a RMP doctor by name Mallesham at Gangadhara for first aid and that on the next day he was shifted to the Government Civil Hospital, Karimnagar, which in turn referred the petitioner to Dr. Harikishan Eye Hospital, Karimnagar. The petitioner has allegedly undergone an operation on his left eye costing Rs.15,000/-. The petitioner is stated to have consulted the doctors at L.V. Prasad Eye Hospital, Hyderabad on the advise of Dr. Harikishan, who estimated the cost of further treatment at Rs.50,000/- and the petitioner could not take the said treatment in view of his poverty. The petitioner has pleaded that he and his caste elders have approached respondent No.3 with a complaint against respondent No.5 and the former has referred the complaint to respondent No.4. He further alleged that thereafter respondent No.5 approached the petitioner and the caste elders Sri Sridhar and Sri Eligati Kishan and promised that he will provide treatment to the petitioner. The grievance of the petitioner is that despite written complaint dated 12.01.2007 given to respondent No.3, which allegedly discloses commission of offences under Sections 326 and 506 IPC, no case has been registered against respondent No.5. In support of his pleadings, the petitioner filed a copy of the written report dated 12.01.2007 given by the President, District Barbers Service Society, Karimnagar District, the medical prescriptions and the bills. The petitioner also filed a copy of his photograph showing his left eye being closed with a bandage. Separate counter affidavits have been filed by respondent No.4, the Sub Divisional Police Officer (for short, ‘SDPO’), Peddapally Division, Karimnagar District and respondent No.5, Station House Officer, against whom the report was lodged by the petitioner. In his counter affidavit, the SDPO stated that he has assumed charge on 18.04.2010 and averred that on receiving the complaint against respondent No.5, respondent No.2 has referred the same to the then SDPO, Peddpally on 12.01.2007 to conduct an enquiry into the allegations and submit a report, that the said SDPO after detailed enquiry submitted a report on 13.06.2007 which revealed that the petitioner expecting that his daughter-in-law may give a complaint against him and his family members and to pre-empt police action, has hatched a plan by foisting a false complaint against respondent No.5. The SDPO is stated to have enquired with Dr. Harikishan, Eye Specialist and Dr. Mallesham, RMP and found the allegations made by the petitioner against respondent No.5 as false and that on receipt of the said report, respondent No.3 dropped further action, as the allegations were found false and baseless. Similar was the vein in which the counter affidavit of respondent No.5 has proceeded. He has denied his involvement in the alleged incident and professed absolute innocence. W.P.No.27254 of 2009: Petitioner No.1 is the daughter of petitioner No.2. She is stated to have sold her flat on the fourth floor of Anuradha Apartments, Barkathpura, Hyderabad to respondent No.3 while she along with her father used to reside in the pent house portion of the same apartments. It is her case that due to illness of her mother, who was admitted as an inpatient in Apollo Hospital, Jubilee Hills and also in Kamineni Hospital at L.B. Nagar, her father and mother were staying at a different place while she and her son were staying at her house. Allegedly being disturbed by the indecent overtures of respondent No.3, petitioner No.1 is stated to have locked the pent house and been staying with her parents. That after being away to Vijayawada for four days, when petitioner No.1 came back on 20.07.2009 and visited her pent house at 7 p.m., she found her belongings kept in the pent house stolen and the locks of the door broken open with respondent No.3 found in the company of five of his friends taking liquor. When petitioner No.1 allegedly questioned the said action of respondent No.3, he is stated to have abused her in a vulgar and indecent language and tried to beat her and that respondent No.3 allegedly asked the watchman to throw her out of the complex. Petitioner No.1 has given details of the various documents, certificates, sarees and other dresses, jewelry, furniture, T.V. etc., estimated to be worth around Rs.50 lakhs allegedly stolen by respondent No.3. Petitioner No.1 approached respondent No.2 with a written report on 27.07.2009, which, the latter refused to receive. Thereafter, she along with petitioner No.2 gave a representation on 28.07.2009 to respondent No.1, who directed the DCP, East Zone, to take appropriate action. The grievance of the petitioner is that no action has been taken so far even though respondent No.3 allegedly grabbed the property worth around Rs.70 lakhs for her failure to repay the loan amount of Rs.15 lakhs by trespassing into the property, breaking open the locks and stealing the property worth around Rs.50 lakhs. Separate counter affidavits have been filed by respondent Nos.2 and 3. In his counter affidavit, the Inspector of Police, Kachiguda Police Station, Hyderabad, admitted that the petitioners have lodged a complaint on 27.07.2009 on the allegation that respondent No.3 has occupied their pent house by breaking open the locks and stolen the items mentioned in the complaint. As the dispute prima facie appeared to be civil in nature, a preliminary enquiry was conducted into the allegations, which revealed that the petitioners were the owners of flats bearing Nos.403-A (fourth floor) and 403-B (pent house) of Anuradha Apartments, Barkathpura, that petitioner No.1 sold flat No.403-A to respondent No.3 for a consideration of Rs.10 lakhs under registered sale deed dated 28.09.2006 and sold the pent house for a similar consideration under registered sale deed dated 30.11.2007 and handed over physical possession of the same to respondent No.3. That after delivering possession, the petitioners are staying somewhere in Srinagar Colony and that the enquiry revealed that the contents of complaint dated 27.07.2009 are false. He has denied the allegation that petitioner No.1 went to the pent house at 7 p.m. on 20.07.2009 as false and contrary to the version of the neighbours recorded during the enquiry. It is further stated that petitioner No.2 has mortgaged the title deeds of the property with the Indian Bank, ARM Branch and concealed the said fact from respondent No.3 and that the latter filed Writ Petition No.276 of 2009 against the Indian Bank questioning the auction notice issued by it and a Division Bench of this Court disposed of the said writ petition on 06.07.2009. He has further deposed that the enquiry revealed that all the allegations contained in the complaint were false. Respondent No.2 also filed a copy of Agreement of Sale-cum-General Power of Attorney given by petitioner No.2 in favour of respondent No.3 to substantiate his plea that the petitioners have sold the property to respondent No.3. In his counter affidavit, respondent No.3 pleaded that he has become the absolute owner of the pent house, which was sold by the petitioners under a registered sale deed and Agreement of sale-cum- General Power of Attorney and that the petitioners have delivered possession of the property and have come out with blatantly false pleas. At the hearing, the learned counsel for the petitioners have contended that the police have failed to discharge their statutory duty cast on them under the provisions of the Code of Criminal Procedure, 1973 (for short, “the Code”). They contended that the stand taken by the police in both these cases that they did not register the cases basing on the finding in the preliminary enquiries that the allegations contained in the complaint are false does not stand scrutiny of Sections 154 and 156 of the Code. They have further submitted that the police have neither power to hold a preliminary enquiry nor are entitled to refuse registration of the FIR on the ground that the allegations contained therein are found false. Smt. Rachana Waddepally, learned Assistant Government Pleader for Home, made a strong bid to sustain the procedure followed by the police and their refusal to register the cases. According to her, Section 154 of the Code vests discretion in the police to refuse to register the FIR, if they do not have the reason to believe that the offences, as alleged in the report lodged with them, have not been committed. Sri D. Jaganmohan Reddy appearing for respondent No.3 in WP.No.27524 of 2009 supported the submissions of the learned Assistant Government Pleader. I have given my earnest consideration to the respective submissions of the learned counsel. Chapter XII of the Code deals with information to the police and their powers to investigate. Section 154 deals with information in cognizable cases, Section 155 pertains to non-cognizable cases and investigation of such cases, Section 156 empowers the police officers to investigate cognizable offences and Section 157 envisages procedure for investigation. For proper appreciation of the scope of these provisions, it is useful to reproduce them hereinbelow: “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 giving 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 informant. (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. 155. Information as to non-cognizable cases and investigation of such cases:- (1) When information is given to an officer in-charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in- charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. 156. Police officer's power to investigate cognizable case:- (1) Any officer in-charge of a police station may, without 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. 157. Procedure for Investigation:- (1) If, from information received or otherwise, an officer in-charge of a police station has reason to suspect the commission of an offence which he Is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender : Provided that- (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in Clauses (a) and (b) of the proviso to sub-section (1), the officer in-charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub- section, and, in the case mentioned in Clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.” A brief analysis of the above provisions would reveal that Section 154(1) makes it obligatory for a police officer in-charge of a police station to receive the information given in writing or to reduce to writing the information if given orally and enter the substance thereof in a book to be kept by the officer concerned in the form prescribed by the State Government. Under Section 156, the officer in-charge of a police station is empowered to investigate any cognizable case without the order of the jurisdictional Magistrate. Under Section 157, if the police officer has reason to suspect the commission of an offence, he shall forthwith send a report to the jurisdictional Magistrate, start investigation and if necessary take all the measures for discovery and arrest of the offender. A conjoint reading of the abovementioned provisions would further disclose that the duty of the police officer varies depending upon the nature of the information he receives. If he receives information relating to the commission of a cognizable offence, he has to immediately enter the substance of the same in the prescribed book and commence investigation without the order of the Magistrate. If the information pertains to a non-cognizable case, upon entering the substance thereof in the prescribed book, he shall refer the informant to the Magistrate and shall not proceed with the investigation without the order of the Magistrate. The scope of these provisions was in fact considered in a slew of authorities, a few of which are discussed hereunder. A leading judgment on this aspect is of the Apex Court in State of Haryana vs. Bhajan Lal[1] wherein it has been unequivocally laid down that 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 same is not reliable or credible. The Court further held that the officer in-charge of a police station is statutorily obliged to register a case and then to proceed with the investigation, if he has reason to suspect the commission of an offence subject to the proviso to Section 157. In paragraph 33, the Apex Court held as under: “It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in-charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.” In arriving at the above conclusion the Supreme Court has contrasted Section 154(1) with Section 41(1) (a) or (g) of the Code and held that unlike in the latter provision, which used the expressions “reasonable complaint” and “credible information”, the word ‘information’ in Section 154(1) is not hedged with any qualification and that therefore reasonableness or credibility of the information is not a condition precedent for registration of a case. The Court has succinctly summed up the issue as under: “An overall reading of the codes makes it clear that the condition, which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.” (para 32) In Ramesh Kumari vs. State (N.C.T. of Delhi)[2] the Supreme Court, while following the above dicta, held as under: “The views expressed by this Court in paragraphs 31, 32 and 33 as quoted above leave no manners of doubt that the provision of Section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of such an information disclosing cognizable offence.” The Supreme Court had another occasion to deal with an identical situation in Prakash Singh Badal and another vs. State of Punjab and others[3] wherein a two Judge Bench, while restating the above legal position, held in paragraph 68 as under: “It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.” The learned Assistant Government Pleader, by placing reliance on the words “an officer in-charge of a police station has reason to suspect the commission of an offence” in Section 157, submitted with conviction that unless the police officer suspects commission of an offence, he need not register the FIR and investigate the offence. I find this submission wholly without merit. A close comparison of Section 154(1) with Section 157(1) would reveal that the abovementioned words in Section 157 are conspicuously absent in Section 154(1), which necessarily means that while it is obligatory and incumbent upon the police officer of a police station concerned to register the case if the information discloses commission of a cognizable offence, a certain amount of discretion is vested in the police officer in the matter of investigation after registration of the case. Before commencing the investigation, the police officer should have reason to suspect the commission of offence. Under clause (b) of proviso to Section 157(1) if it appears to the police officer that there is no sufficient ground for entering on an investigation, he shall not investigate the same. But, however, he shall state in his report his reasons therefor apart from notifying to the informant the fact that he will not investigate the case or cause it to be investigated. That the scope of Section 154(1) is properly understood by the State Government is evident from the A.P. Police Manual (for short, “the Manual”). Sub- clauses (2) and (3) of Para 409-1 under Chapter 21 of the Manual reads as under: “2. Section 154 Cr.P.C. lays down that when an officer incharge of a police station receives information relating to commission of cognizable offence he shall record it verbatim and enter the same in a printed form. If the information is given orally, it should be reduced into writing by him or by his subordinate under his direction and secure the signature or thumb impression of the informant. The information so reduced shall be read over to the informant. After entering the information in the printed form it shall be registered First Information Report (FIR) under appropriate sections of law. A copy of the FIR after registration shall be furnished to the informant free of cost. Refusal to register the information about a cognizable offence is punishable under Section 217 IPC. The informant can send the information even by post to the SP of the District who shall register the same as an FIR himself or get it registered if he is satisfied that the contents show a cognizable offence and investigate or direct any subordinate to investigate. The SP also may cause an enquiry against the officer who refused to register and take appropriate action. The brief contents of the FIR shall be entered in the General Diary (GD). (Emphasis added). 3. Information relating to the cognizable offences should be registered even if they are presented in a police station not having jurisdiction and such registration should not be refused on the point of jurisdiction. After registration, it should be transferred to the concerned police station. This type of prompt action will save not only delay in the registration of FIR, but also prevent inconvenience to the informant. In addition,