Smt. Laxmi Sharma vs State of M.P. and Others

Dipak Misra, J.

The seminal issue that emanates in this intra court appeal preferred u/s 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (for brevity ''the Act'') is whether the Officer In-charge of the Police Station or any other person in charge is bound to register an F.I.R. lodged u/s 154 of the Code of Criminal Procedure (hereinafter referred to as the Code''), if the F.I.R. discloses a cognizable offence or has the option not to register it by giving a zero number and proceed with an inquiry. We must, at the outset state, that is the principal and fundamental question, though Mr.P.N.Dubey, learned Dy. Advocate General for the State would like to propone that if the First Information Report is not registered and no action is taken the aggrieved party can take steps u/s 200 of the Code by lodging a complaint before the concerned magistrate. It is apposite to state, to avoid any kind of maze, there can be no scintilla of doubt when the Police authorities do not take any action a private complaint can be filed before the appropriate Court of law but, a significant and fertile one, whether the Officer In-charge would not register an F.I.R. and proceed to investigate into the matter and thereafter, if satisfied, would register/allot a crime number.

The facts which are essential to be stated are that Smt.Pushpa Sahu, respondent No.6, was working in the school of the petitioner, Smt.Laxmi Sharma, Director, Indira High School. Madhotal, Jabalpur, as a clerk-cum-cashier and she did not deposit the fees collected from the students for the months of March to May, 2006 in the bank account of the school. As the money was not accounted for and there was embezzlement, the writ petitioner lodged reports with the Station House Officer, Gohalpur, Jabalpur on 10.5.2006, 22.5.2006 and 12.10.2006 but despite the same the respondent No.5 did not register a case against her. As the F.I.R. was not registered the writ petitioner invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India to issue a command to the Station House Officer to register an offence as it is a cognizable one and proceed as per law.

As is evincible, the learned Single Judge placing reliance on the decisions rendered in the cases of All India Institute of Medical Sciences Employees Union (Reg.) Vs. Union of India, (1996) 1 SCC 582 and Minu Kumar and another Vs. State of Bihar and others (2006) 4 SCC 369 came to hold that the writ petition should not be entertained as the petitioner has a remedy for making a complaint u/s 200 of the Code before the competent magistrate, and being of such view dismissed the writ petition.

Questioning the correctness and faultlessness of the order passed by the learned single Judge, Mr. K.K. Pandey, learned counsel for the appellant has submitted that it was imperative on the part of the Officer In-charge to accept the F.I.R., if the conditions precedent are satisfied to register a case and thereafter proceed to investigate, but they cannot give a zero number and not register the offence. Learned counsel submitted that this practice is not in consonance with the spirit of the Code and such a practice creates a dent in the marrows of the faith of the people in the police at large. It is his submission that the filing of private complaint is not the solution of the problem. It is propounded by him that when a cognizable offence is alleged and the F.I.R. reflects the same the Officer In-charge or any one remaining in the charge is bound to register an offence and allot crime number.

Mr. P.N. Dubey, learned Dy.Advocate General for the State resisting the aforesaid submissions contended that the order passed by the learned Single Judge is absolutely impeccable and flawless and hence, and same does not warrant any interference in this intra court appeal. It is proponed by Mr. Dubey that the practice is to give a zero number and thereafter the investigation is taken up, and on being satisfied, a crime is registered. Learned counsel for the State further submitted that in the case at hand it is open to the appellant to lodge a private complaint before the competent magistrate.

Section 154(1) of the Code provides for recording of information in cognizable offence. Section 156 deals with police officers powers to investigate into the cognizable case. Section 157 of the Code envisages the procedure for investigation. Section 173 of the Code deals with filing of charge-sheet and Section 190 of the Code lays down the postulate for taking cognizance. It is apposite to reproduce sections 154 and 156:

Information in cognizable cases. (1) Every information relating to 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 power of an officer in charge of the police station in relation to that offence.

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 proceedings 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 u/s 190 may order such an investigation as above-mentioned.

In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, the Apex Court has expressed the view as under:

29.The legal mandate enshrined in section 154(1) is that every information relating to the commission of "cognizable offence" (as defined u/s 2(c) of the Code) if given orally (in which case it is to be reduced into writing) or is writing to "an officer-in-charge of a police station" (within the meaning of section 2(o) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Information Report" and which act of entering the information in the said form is known as registration of a crime or a case. 30. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of a section 154(1) of the Code, the concerned police officer 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 reliable or credible. On the other hand, the officer-in-charge of a police station is statutorily obliged to register a case and then to proceed with investigation if he has reason to suspect the commission of an offence which he is empowered u/s 156 of the Code of investigate, subject to the proviso to section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of sections 156 and 157 of the Code in the ensuring part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer-in-charge of a police station refuses to exercise the jurisdiction vested on him and to register a case on the information of a cognizable offence, reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing any by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of section 154 of the Code.

Be it noted that section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in section 41(l)(a) and (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in section 154(1) unlike in section 41 (l)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonable or credibility of the information. In other words reasonableness'' or ''credibility'' of the said information is not a condition precedent for registration of a case. A comparison of the present section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that ''every complaint or information'' preferred to an officer-in-charge of a police station should be reduced into writing which provision was subsequently modified by section 112 of the Code of 1872 (Act X of 1872) which thereafter read that ''every complaint'' preferred to an officer-in-charge of a police station shall be reduced into writing. The world ''complaint'' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ''information'' was used in the Codes of 1882 and 1955 which word is now used in sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act II of 1974). An over all reading of all 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.

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.

(Emphasis supplied)

In the case of Mohindro Vs. State of Punjab and Others, their Lordships have expressed thus:

The grievance of the appellant, is that though she has approached the authority for registering a case against the alleged accused persons but the police never registered a case and never put the law in motion and, therefore, having failed in an attempt in the High Court to get a case registered she has approached this Court. Pursuant to the notice issued the respondents have entered appearance. Though the learned Counsel appearing for the State of Punjab stated that there had been an enquiry, we fail to understand as to how there can be an enquiry without registering a criminal case. On the facts alleged, it transpires that the appellant approached the police for registering a case and get the allegation investigated into and yet for no reasons whatsoever the police failed to register the case. In the aforesaid premises, we allow this appeal and direct that a case be registered on the basis of the report to be lodged by the appellant at the Police Station within a week from today and thereafter the matter be duly investigated into and appropriate action be taken accordingly.

In the case of Ramesh Kumar Vs. State (N.C.T. of Delhi) and others, [ AIR 2006 SCW 102] their Lordships after referring to the decisions rendered in the case of Bhajanlal Chowdhary (supra) in paragraph 5 expressed the view as under:

The views expressed by this Court in paragraphs 31, 32 and 33 as quoted above leave no manners of doubt that the provisions 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.

In the case of Lallan Chaudhary & ors. Vs. State of Bihar & anr. AIR 2006 SCW 5172 their Lordships in paragraph 10 held as under:

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 offences, 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 u/s 154 of the Code.

In the case of Parkash Singh Badal and Another Vs. State of Punjab and Others, their Lordships in paragraphs 67 and 68 have held as under:

It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1) (a) or (g) of the Code wherein the expressions "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Sections 41(1) (a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to and to register a case thereon the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, "reasonableness" or "credibility" of the said information is a not a condition prcedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that "every complaint or information" preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that "every complaint" preferred to an officer in charge of a police station shall be reduced in writing. The word "complaint" which reduced in previous two Codes of 1861 and 1872 was deleted and in that place the word "information" was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An overspreading of all the Codes makes it clear that the condition which is since qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence. 68. 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". 11. From the aforesaid pronouncement of law it becomes clear as day that the F.I.R. if reveals a cognizable offence the Officer In-charge of the police station is under an obligation to register the same. At this juncture, it is seemly to refer to a decision rendered in the case of All India Institute of Medical Sciences Employees'' Union (Reg.) (supra). In the aforesaid case the petitioner therein had moved the High Court u/s 226 of the Constitution of India to take the steps as required under law. Their Lordships referred to Sections 154, 156 and 157 of the Code and eventually in paragraphs 4 and 5 came to hold as under:

When the information is laid with the police but no action in that behalf is taken, the complainant is given power u/s 190 read with Section 200 of the Code to 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 the 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 u/s 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 would issue process to the accused.

In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. The High Court, therefore, though for different reasons, was justified in refusing to grant the relief as sought for." In our considered opinion the facts of the said case are different and do not have any application to the case at hand.

In the case of Minu Kumari (supra) a two Judge Bench of the Apex Court was dealing with the case wherein the High Court has rejected an application u/s 482 of the Code. In paragraph 16 their Lordships opined as under:

When the information is laid with the police, but no action in that behalf is taken, the complainant is given power u/s 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizable 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, be 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 u/s 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 would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees'' Union (Reg.) V. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained.

Thus, as is noticeable their Lordships were dealing with particular stage of the case. In the case at hand, the grievance is that the police failed to take action and simultaneously this Court has been apprised that an F.I.R. is not F.I.R. is not registered initially but a zero number is given and an investigation is carried out, to find out the primary truth. The same, in our considered opinion, is not permissible as has been held in the case of Mohindro (supra). In the said case their Lordships observed that there could not have been inquiry without registering a criminal case. Their Lordships directed that the case be registered on the basis of the report and the matter be duly investigated. The principle that had been stated in the case of Ramesh Kumari (supra) is that the provision contained in Section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing cognizable offence.

From the aforesaid pronouncements of law there can be no scintilla of doubt that where an F.I.R. discloses a cognizable offence the same has to be registered by the officer-in-charge of the Police Station or any person in charge and thereafter the investigating agency shall investigate into the matter and take appropriate steps as per law engrafted under Sections 157 and 173 of the Code. When an F.I.R.. is lodged and the conditions precedent are satisfied and reflecting cognizable offence the same has to be registered and a crime number is to be given. There cannot be investigation without registering an F.I.R. Mr. P.N. Dubey, learned Deputy Advocate General for the State expresses his apprehension that when an F.I.R. is registered the police is duty bound to arrest the person named in the F.I.R. We really fail to fathom the same. The police is required to act as per law and in consonance with the provisions of the Code. An F.I.R. is to be registered and a crime number is to be given so that the criminal law is set in motion. It is because no enquiry can be conducted without registering an F.I.R. The apprehension that a person whose name finds place in the F.I.R. would have to be immediately taken into custody, in our considered opinion, is a figment of imagination which is neither the requirement not the warrant of law. We may hasten to repeat at the cost of repetition that allotment of crime number, by no stretch of imagination, would mean that the named person in the F.I.R. would be apprehended or would become a victim. The producer laid down in the Code has to be followed with due propriety and keeping in view the conception of rule of law.

Though we have held that the language of Section 154 of the Code is mandatory and the concerned officer is duty bound to register a case on the basis of the information disclosing cognizable offence. Yet we cannot lose sight of the remedy available to the petitioner. The petitioner can file a complaint u/s 200 of the Code. That is what the learned Single Judge has held. Another remedy has been provided u/s 154(3) At the cost of the repetition, we reproduce Section 154(3) of the Code:

(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 is charge of the police station in relation to that offence.

As is evincible the said provision stipulates that a person aggrieved by refusal on the part of the officer-in-charge of Police Station to record the information may send the substance of information in writing and by post to the Superintendent of Police concerned who, if satisfied that such information disclose the commission of a cognizable offence, shall either investigate the case himself or directed an investigation to be made by any police officer subordinate to him, in the manner provided by this Code. In view of the aforesaid we would permit the petitioner to send a copy of an F.I.R. as provided u/s 154(3) to the concerned Superintendent of Police who shall take action as per law the stipulation made in the code.

In the result, the writ appeal is allowed to the extent indicated above. The order passed by the learned Single Judge is set aside. There shall be no order as to costs.