Judgment:
Dr. Arijit Pasayat, J.
These petitions are filed under
Article 32 of the
Constitution of India, 1950 (in short the 'Constitution'). The
petitioners have stated that they have approached this Court
because of inaction of official respondents in not acting on the
report lodged by two persons namely, Sumesh Ramji Jadhav
and Suresh Murlidhar Bosle. The basic grievance is that
though commission of offences punishable under the Indian
Penal Code, 1860 (in short the 'IPC') was disclosed, the police
officials did not register the FIR and, therefore, directions
should be given to register the cases and wherever necessary
accord sanction in terms of Section 196 of the Code of
Criminal Procedure, 1973 (in short the 'Code'). It is stated that
the speeches made by respondents 5 and 6 were likely to
disturb the communal harmony in the country and the likely
result of such inflammatory speeches was to create hatred in
the minds of citizens against the persons belonging to minority
communities. It appears that so far as respondent No.5 is
concerned a complaint was lodged at the police station in the
State of Maharashtra where the complainants reside. Since
the police authorities in Maharashtra found that the alleged
speeches were delivered outside the State of Maharashtra and
inside the State of Gujarat, they took up the position that
action could be taken by the authorities in Gujarat.
Accordingly, the report lodged was sent to the officials in
Gujarat. So far as respondent No.6 is concerned sanction in
terms of Section 196 of the Code was prayed for alleging that
there was complete inaction and, therefore, the writ petition
has been filed. It was pointed out by learned counsel for the
petitioners that since undisputedly, the commission of
cognizable offence is disclosed even on a bare reading of the
FIR lodged, the authorities were not justified in not registering
the FIR. It is contended that the partisan approach of the
authorities in the State of Gujarat is writ large, which is
evident from a bare reading of the counter affidavit filed. The
role which is to be played by the investigating agency and
finally the court has been assumed by the authorities who
were not competent to deal with the matter. It is pointed out
that in Ramesh Kumari v. State (NCT of Delhi) and Ors. (AIR
2006 SC 1322) this Court had said that whenever cognizable
offence is disclosed the police officials are bound to register
the same and in case it is not done, directions to register the
same can be given.
2. Learned counsel appearing for respondent No.5 and the
State of Gujarat submitted that on a bare reading of the
complaint lodged it appears that no offence was made out and
whenever a complaint is lodged automatically and in a routine
manner FIR is not to be registered. In any event, it is
submitted that petition under Article 32 of the Constitution is
not a proper remedy.
3. Chapter XII of Code relates to "Information to the Police
and their Powers to Investigate". Section 154 reads as follows:
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".
4. 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 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.
5. When the information is laid with the police, but 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 Others [(1996) 11
SCC 582]. It was specifically observed that a writ petition in
such cases is not to be entertained.
6. The above position was again highlighted in
Gangadhar
Janardan Mhatre v. State of Maharashtra [(2004) 7 SCC 768],
Minu Kumari and Another v. State of Bihar and Others [(2006) 4
SCC 359] and Hari Singh v. State of U.P. (2006 (5) SCC 733).
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 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 (AIR
2006 SC 3376). 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.
(3) So far as non-grant of sanction aspect is concerned, it
is for the concerned government to deal with the
prayer. The concerned government would do well to
deal with the matter within three months from the
date of receipt of this order.
(4) We make it clear that we have not expressed any
opinion on the merits of the case.
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