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CASE NO.: Writ Petition (crl.)  11-15 of 2003

PETITIONER: Aleque Padamsee and Ors

RESPONDENT: Union of India and Ors

DATE OF JUDGMENT: 18/07/2007

BENCH: Dr. ARIJIT PASAYAT P.K. BALASUBRAMANYAN & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      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.

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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.\027(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.

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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.  

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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.