Sunil Kumar Yadav vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

By this order, Criminal Writ Petitions 1129 and 1136 of 1995 are being decided as they pertain to same set of facts.

In writ petition No. 1129 of 1995 the petitioner Sunil Kumar Yadav has alleged that his brother Anil Kumar Yadav was inducted as tenant in a shop situated in Mohindra Colony at the monthly rent of Rs. 400/ by respondent No. 5 Pargat Singh. The petitioner and his brother were running the business of repair work of taperecorders, television sets, and watches etc. therein. In February, 1995 respondent No. 5 Pargat Singh threatened the petitioner to dispossess him forcibly from the suit shop, whereupon Anil Kumar Yadav filed a Civil Suit against respondent No. 5 with a prayer to restrain him from dispossessing Anil Kumar Yadav from the suit shop forcibly and illegally. Respondent No. 5 filed written statement admitting the relationship of landlord and tenant between the parties denying that he ever threatened the plaintiff to dispossess him illegally and forcibly from the tenanted premises. In the written statement Pargat Singh also averred that he has filed a petition before the Rent Controller for ejectment of plaintifftenant and hence, vide order dated 15.9.1995, the Sub Judge II Class, Ludhiana in Anil Kumar''s suit held that the question of dispossessing the tenant forcibly does not arise and the suit was, accordingly, dismissed. Despite this order, Annexure P1, respondents 5 to 13 conspired to dispossess the petitioner and his brother from the demised premises. In pursuance of that conspiracy, on 21.9.1995 respondents 5 to 13 attacked the petitioner and his father Prehlad Kumar Yadav with the help of respondent No. 3 and his subordinates. On 21.9.1995 about 1.30 p.m. respondents 5 to 13 tried to take possession of the disputed shop forcibly and in that attempt inflicted serious injuries to the petitioner as well as to his father. Petitioner and his father were medically examined in the Civil Hospital, Ludhiana on 21.9.1995 and on 22.9.1995 the hospital authorities immediately sent information to respondent No. 4 for registration of the case, but no action was taken by the police.

It is also averred that in the absence of the petitioner, respondents 5 to 13 committed theft in the shop of the petitioner on 22.9.1995 by removing certain articles and cash therefrom. Thereafter, the petitioner could manage to put his lock on his shop but still respondents 5 to 13 are not permitting the petitioner to enter the shop to run his business as they are in the shadow of protective umbrella of the police. The petitioner''s father also informed the police that on 21.7.1995 at 11.00 a.m. he and his son, the petitioners, were threatened with dire consequences by Munshi Ram, owner of Siri Ram Factory alongwith 10 and 12 persons. They were also threatened that they will kidnap him and hence, he sought protection of the police. This letter is filed at Annexure P2. Petitioner''s father also submitted copy of civil Court''s order Annexure P1 before respondent No.3, but still they failed to register any case against respondents 5 to 13. Respondent No. 3 is rendering helping hand to respondents 5 to 13 in their nefarious attack of taking possession of the demised shop and in that attempt respondent No. 3 has registered a false case against the petitioner and his father under Sections 323/324/148 and 149 of the Indian Penal Code at the instance of respondents 5 to 13. Later on, Section 326 IPC was also added thereto. The petitioner was enlarged on prearrest bail but his father is still in judicial custody.

It is also alleged that when the Police Station Focal Point Ludhiana refused to register a case on the complaint of the petitioner, then he sent a detailed complaint about the incident to the Station House Officer, Focal Point Ludhiana, the Senior Superintendent of Police, Ludhiana, the Deputy Inspector General, Ludhiana and the Chief Justice of this High Court on 12.10.1995, but still no action was taken by the police, copy of the complaint is at Annexure P3. Hence, the petitioner has prayed for issuance of an appropriate writ, order or direction to respondents 2 to 4 to register a case against respondents 5 to 13 under Sections 452/504/506/324/325/148/149/337/382 read with Section 120B of the Indian Penal Code.

In Criminal Writ Petition No. 1136 of 1995, petitioner Ram Briksh Singh has also alleged that he took on lease two shops at the rate of Rs. 150/ per month each situate on plot No. 54 Mohindra Colony Moti Nagar, Ludhiana from respondent No. 5 Munshi Lal in the year 1988. He and his brother are running a grocery in one shop and in another a tailoring business. In March, 1995 respondent No. 5 Munshi Lal threatened to dispossess the petitioner and his brother from the said shops. Petitioner and his brother filed a civil suit against respondent No. 5 for grant of temporary injunction restraining him from interfering in their possession of the demised shop. On 20.9.1995 Shri Bhupinder Singh Chadha, Advocate appearing for respondent No. 5 Mushi Lal made a statement before the Court that "the defendant undertakes not to dispossess the plaintiff forcibly and illegally from the shops in dispute nor he will disconnect the electricity supply to the shops in dispute (Annexure P1)."

In view of this statement, the plaintiff expressed his desire not to continue with the suit and hence, the suit was dismissed as withdrawn on that very day.

Petitioner has further averred, that despite the said undertaking, in pursuance of their conspiracy, respondents 5 to 13 with an intention to forcibly dispossess the petitioner and his brother illegally Centered into the demised shops on 21.9.1995 with the help of respondent No. 3 and his subordinates and they gave merciless beatings to the petitioner and his brother. Respondent No. 5 caught hold of the petitioner and his brother and the remaining persons threw articles outside the demised shops. They also damaged the roofs of the shops and removed bricks from the roofs thereof. When the persons of locality gathered these accused persons took to their heels and implicated the petitioner and his brother by lodging a false report. Petitioner has filed photographs of the demised shops. It is also alleged that on 22.9.1995 in the absence of the petitioner and his brother, these respondents committed theft in the demised shops by removing some articles and cash therefrom. Thereafter, the petitioner managed to put his lock on the demised shops but still respondents 5 to 13 are not permitting the petitioner to enter these shops. As the police is under the influence of respondents 5 to 13, the police of of Police Station Focal Point, Ludhiana refused to take any action. Hence, the petitioner sent a detailed complaint Annexure P3 about this incident to the Station House Officer, Focal Point, the Senior Superintendent of Police, the Deputy Inspector General, Ludhiana and the Chief Justice of this Court on 12.10.1995, but still no action is taken by the police. At the instance of respondents 5 to 13, police has registered a false case against the petitioner and his brother under Sections 323/324/148 and 149 of the Indian Penal Code. The petitioner is put to an acute hardship and serious predicament and has prayed that writ be issued to respondents 2 to 4 to register a case against respondents 5 to 13 under Sections 452/406/148/149/379/382 read with Section 120B of the Indian Penal Code.

In both the petitions, an alternative prayer is also made that an independent enquiry be ordered through Central Bureau of Investigation into these incidents or the District and Sessions Judge (Vigilance), Haryana at Chandigarh be directed to hold such an enquiry and to submit a report.

In both the petitions, R.S. Cheema, Station House Officer of Police Station Focal Point, Ludhianarespondent No. 4 filed his reply in the form of an affidavit. Respondents 6 to 11 and 13 in Crl. Writ No. 1129 of 1995 also filed their replies. In Criminal Writ Petition No. 1136 of 1995 these respondents have also filed certain documents Annexures R1 to R7 showing that respondent Munshi Lal has filed an ejectment petition in the Court of the Rent Controller, Ludhiana under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 against Ram Briksh Singh, copy of the complaint, Annexure R12, sent by Munshi Lal to the Senior Superintendent of Police, Ludhiana, copy of injury report of respondent Sukhdev Singh, Annexure R5/5 and telegram Annexure R7 sent by Moti Nagar United Factory Association to the Senior Superintendent of Police, Ludhiana.

In the writ petition No. 1129 of 1995 respondents 6 to 11 and 13 filed their combined reply along with certain documents. Annexure R5/1 is the order of Sub Judge, Ludhiana dated 15.9.1995 passed in the civil suit filed by Anil Kumar against Pargat Singh. Annexure R5/2 is the photocopy of the injury report of Sukhvinder Singh. Annexure R5/3 is the discharge certificate of Sukhvinder singh. Annexure R5/4 is the discharge certificate of Sukdev Singh. Annexure R5/5 is the injury report of Sukhdev Singh. Annexure R5/6 is the copy of telegram sent by Moti Nagar United Factory Association to the Senior Superintendent of Police, Ludhiana. Annexure R5/7 are the photocopies of postal receipts. Annexure P4 is the bail order passed by the Sessions Judge, Ludhiana for enlarging Suchit Kumar on bail. Annexure P5 is the statement of Sukhvinder Singh on the basis of which F.I.R. No. 143 of 1995 is registered at Police Station Focal Point Ludhiana against the petitioners. Annexure P6 is the photocopy of the injury report of Prehlad Yadav and Annexure P7 is the injury report of Sunil Kumar Yadav.

In both the writ petitions, petitioner''s counsel relying on State of Haryana and others v. Ch. Bhajan Lal and others, 1991(1) RCR 383 contended that the petitioners have made complaints of cognizable offences before the Station House Officer, Focal Point, Ludhiana. It was the duty of the police officer concerned to register the F.I.R. and to hold an investigation into the allegations made therein.

Respondent''s learned counsel relying on Dharam Vir Khosla v. Senior Superintendent of Police, Hoshiarpur, 1994(1) RCR 120 contended that the police has made enquiries into the allegations made by both the petitioners and they arrived at a conclusion that they have made false allegations against respondents 5 to 13 and thus, no case was register red against these respondents. Certain documents to that effect are also filed by respondents 1 to 3 in support of this contention. In the alternative, respondents'' learned counsel also contended that the petitioners if they are earnest about their allegations can file complaint in the Court.

Petitioners'' counsel made a mordacious criticism articulating that the police is not discharging its duty by registering F.I.R. on the basis of the report submitted by the petitioners wherein they have made allegations about cognizable offences. They are taking lame excuse that no injury was found on the person of petitioner Sunil Kumar Yadav when he was arrested on 21.9.1995. but when he was examined by the doctor on 22.9.1995, few injuries were found on his body which according to the doctor could be selfsuffered. Thus, according to him, it is evident that the police is trying to protect respondents 5 to 13 by taking these fervent inexorable please which cannot be accepted at this stage.

It is apparent from the documents submitted by both the parties on record that the police has not offered any explanation about the injuries sustained by Prehlad Kumar Yadav, father of the petitioner Sunil Kumar Yadav, who was examined by the doctor on 21.9.1995, the date of occurrence. There is no opinion of the doctor that these injuries were selfsuffered.

From the submissions made by the learned counsel appearing for the respondents and from the documents submitted by them, it is evident that 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 under Section 154(1) of the Code of Criminal Procedure, the concerned Police Officer embarked upon an enquiry to find out whether the information is reliable or genuine or otherwise and holding that these complaints are nothing but counterblast, refusing to register a case on the ground that the information is not reliable or credible. While under Section 145(1) of the Code, the officer incharge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reasons to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to section 157. In case an officer incharge of a police station refuses to exercise the jurisdiction vested in him in registering a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the aggrieved person can send the substance of that information in writing to the Senior Superintendent of Police concerned, who on being 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 subsection 3 of Section 154 of the Code. Respondents'' learned counsel made a valiant effort in vain to point out that since complaint Annexure P3 was sent to the Senior Superintendent of Police on 12.10.1995 and not immediately after the alleged occurrence, hence due to this inordinate delay, it was not incumbent upon the Senior Superintendent of Police, Ludhiana to order his subordinate to register a case and to hold an investigation. The police held an enquiry and found the case incredible and unreliable. Hence, no case was registered.

Even this argument does not help the respondents 1 to 3. In Section 154(1) of the Code, the legislature has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1) (a) or (g) or the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the nonqualification of the word "information" in Section 154(1) 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 reasonableness 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.

If the police receives information about the commission of a cognizable offence, it has no option but to register a case and to proceed with the investigation under the provisions of Chapter XII of the Code of Criminal Procedure. After recording the First Information Report, the police can decide not to investigate in terms of Section 157(1) of the Code of Criminal Procedure if there is a reasonable doubt about the commission of an offence, but the police has, however, no option to refuse registration of the case. The police cannot first hold preliminary enquiry and then refuse registration as a result of that enquiry, as is done in this case. For holding this view, I am supported by the decision given in Kuldip Singh v. State of Punjab, 1994(2) RCR 498 .

In this case, instead of recording the First Information Report based on the complaint made by the petitioners, the police chose to hold a preliminary enquiry regarding the document filed by the respondent No. 1 tried to search for weaknesses and infirmities in the allegations made by the petitioners microscopically so as to disbelieve their version and ultimately, no FIR was registered. This virtually amounts to traversity of justice at the very doorstep. In view of the settled legal propositions, the police was required to first of all register the case and to proceed with the investigation under the provisions of Chapter XII of the Code of Criminal Procedure.

In view of the legal propositions enumerated above, the police of Police Station Focal Point, Ludhiana is hereby directed to register an FIR on the basis of Annexure P3 (in both the petitions) and then to hold an investigation under Chapter XII of the Code of Criminal Procedure and thereafter to decide whether offences are prima facie made out or not, whether the case is made out to file challan under Section 173 of the Code before the Court or to submit a report under Section 157(1) of the Code.

With this direction, both the petitions are disposed of.