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Release of offending vehicle on superdari.

 

” Release of offending vehicle onsuperdari only after driver and owner have produced all the relevant documents, namely, driving licence, registration cover, insurance, permit and fitness. The police has agreed to implement this suggestion upon directions by this Court. (iv) Production of driver, owner of the offending vehicle before motor accident Claims Tribunals. The police has agreed to implement this suggestion upon directions by this Court. (v) Production of eye witnesses before learned Tribunal. The directions of this Court are required for implementation of this suggestion. 4. The undertaking of Delhi Police to strictly enforce Section 158(6) of the Motor Vehicles Act read with Rule.”

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IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 842/2003

%

RAJESH TYAGI & ORS. ….. Appellants Through : Mr. A.K. Singh, Adv.

versus

JAIBIR SINGH & ORS. ….. Respondents Through : Mr. Manoj R. Sinha, Adv. for R-3. Ms. Mukta Gupta, Standing

Counsel and Mr. Vikas Pahwa,

Add. Standing Counsel for Delhi

Police.

Mr. V.P. Choudhary, Sr. Adv. and

Mr. Anup Bhambhani, amicus

curiae.

CORAM:

HON’BLE MR. JUSTICE J.R. MIDHA

1. Whether Reporters of Local papers may Yes be allowed to see the Judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be Yes reported in the Digest?

ORDER

08.06.2009

1. The DCP (Headquarters) of the Delhi Police has filed the affidavit dated 3rd June, 2009 in which it was stated that a meeting was convened by the Commissioner of Police on 30 th May, 2009. It is stated that various steps are being taken to ensure the foolproof compliance of the provisions of the Motor Vehicles Act, 1988 and Central Motor Vehicle Rules, 1999 and SHOs of all the Police Stations have been directed to comply with Section 158(6) of the Motor Vehicles Act, 1988 read with FAO 842/2003 page 1 of 11 Rule 150 and Form 54 of the Central Motor Vehicle Rules, 1999 and the Joint Commissioners of Police, Deputy Commissioners of Police and Assistant Commissioners of Police have been directed to closely monitor the compliance.

2. It is further stated in the affidavit that Accident Information Reports (Forum 54) as well as other information as per Motor Vehicles Act/Rules is being put on Delhi Police Website http://www.delpolice.nic.in and the MACTs/Insurance Companies will be able to download these reports from the website. It is further stated that various measures shall be taken as detailed in the Minutes of the Meeting dated 30th May, 2009 for strict enforcement of Section 158(6) of the Motor Vehicles Act. The Commissioner of Police has formulated the following monitoring mechanism:-

(i) Maintenance of a register at police station level indicating the details such as FIR Number, date of dispatch of Form 54 to the learned MACT, etc. A column containing details of information not included in Form 54 along with reasons for its non availability shall also be maintained in the register. (ii) Delivery of FIR to the Claims Tribunals on the date of registration.

(iii) Entries in red ink in FIR index about date of dispatch of AIR.

FAO 842/2003 page 2 of 11 (iv) Checking of AIR (Form 54) dispatch records mandatorily during six monthly inspections by Gazetted Officer.

(v) ACsP/SHOs shall forward final reports to the Magistrate only on production of dispatch of AIR (Form 54) to the learned MACT, owner and insurer of the offending vehicle and the victim/his or her family.

(vi) MACT Monitoring Cell headed by Inspector to be set up in each District to monitor delivery of AIR (Form 54) in time.

(vii) Monthly meeting of ACsP, PG Cell, In-charge of MACT Monitoring Cells with the Claims Tribunals. (viii) Appointment of Naib Court (a police officer) by District DCsP with the Claims Tribunals. (ix) Review of pendency of AIR (Forms 54) by District DCsP in weekly law and order meeting.

(x) Monitoring of timely delivery of AIR (Form 54) through new computerized system of Police Station.

(xi) Placement of AIR (Form 54) on the website so that it can be downloaded by the Claims Tribunals, Insurance Companies and claimants.

(xii) Installation of checklist boards in SHOs rooms. FAO 842/2003 page 3 of 11 (xiii) Establishment of District Cells as pilot project in three districts.

 

3. The Delhi Police has also examined the suggestions given by the learned Amicus Curiae and has accepted some of the suggestions which are as under:-

(i) Additional information in Accident Information Report.

The names and addresses of the next of kin shall be provided in the Accident Information Report. The information relating to the nature of injuries suffered by the victim, name and addresses of the eye-witnesses and particulars of permit and fitness shall also be provided upon orders of this Court. (ii) Furnishing of documents along with Accident Information Report.

The Police has no objection in furnishing the documents that are available at the time of filing of the AIR (Form 54). However, the documents which are not available at the time of filing of the AIR, shall be furnished immediately upon being received. It is further submitted that hospitals delay the issuance of MLC and post mortem reports and, therefore, directions may be issued to the hospitals to expedite the issuance of MLC/post mortem report in accident cases.

FAO 842/2003 page 4 of 11 (iii) Release of offending vehicle on superdari only after driver and owner have produced all the relevant documents, namely, driving licence, registration cover, insurance, permit and fitness.

The police has agreed to implement this suggestion upon directions by this Court.

(iv) Production of driver, owner of the offending vehicle before motor accident Claims Tribunals.

The police has agreed to implement this suggestion upon directions by this Court.

(v) Production of eye witnesses before learned Tribunal.

The directions of this Court are required for implementation of this suggestion.

 

4. The undertaking of Delhi Police to strictly enforce Section 158(6) of the Motor Vehicles Act read with Rule 150 and Form 54 of the Central Motor Vehicles Rules and also take additional measures detailed in the affidavit dated 30th May, 2009 and the Minutes of Meeting dated 30th May, 2009 is accepted. In terms of the said undertaking of the Delhi Police, the Accident Information Report (Form 54) be submitted with the concerned Motor Vehicles Tribunals within 30 days of the registration of FIR of accident. The Accident Information Report shall contain the following additional information:-

FAO 842/2003 page 5 of 11 “14. In case of death: Names and address of the next of kin of the

deceased.

15. In case of injury: Nature of injuries suffered

16. Names and addresses of the eye-witnesses.

17. In case of transport vehicles:

(i) Particulars of the permit.

(ii) Particulars of the fitness certificate”.

5. The Accident Information Report shall be accompanied by the attested copies of the FIR, site plan, photographs, registration cover, driving licence, insurance policy, permit and fitness certificate of the offending vehicle. MLC and Post – mortem report shall be submitted as soon as they are received. If any of the aforesaid information or document is not available at the time of submitting the AIR, the same may be submitted as soon as the same is received.

 

6. Simultaneously upon filing of AIR by the SHO with the Claims Tribunal, the copy of the AIR be furnished to the Insurance Company along with the aforesaid documents. The four nationalized companies, i.e. New India Assurance Company Ltd., Oriental Insurance Company Ltd., United India Insurance Company Ltd. and National Insurance Company Ltd. have set up a centralized cell at Oriental House, A-25/27, Asaf Ali Road, New Delhi-110002 for receiving AIR. The Police shall, therefore, send FAO 842/2003 page 6 of 11 the copy of the AIR (Form-54) to these insurance companies at the aforesaid address.

 

7. The insurance companies shall investigate the claim upon receipt of the AIR in terms of their Third Party Claim Procedure Manual and shall submit their reply along with the copy of the investigation report and the computation of compensation according to them before the Claims Tribunals within 30 days. If there is no defence under Section 149 of the Motor Vehicles Act, 1988, the Insurance Company shall deposit the admitted amount according to their computation with their reply before the Claims Tribunal. The copy of the AIR furnished by the Police to the Insurance Company shall be sufficient notice of the institution of the claim petition before the Claims Tribunal.

8. In view of the aforesaid steps being taken by Delhi Police, the Motor Accident Claims Tribunals need to set up the following corresponding procedure:-

(i) Maintenance of a register for recording of the FIR which shall be received daily from the police stations. The Accident Information Report and private claim petition filed in respect of an FIR be marked in this register.

(ii) Maintenance of a separate institution register for registering the AIR as miscellaneous application. FAO 842/2003 page 7 of 11 (iii) Listing of AIR on the judicial side and issuance of notice to the claimant, owner, driver and Insurance Company.

(iv) Notice to the claimant, owner and driver be served through the Investigating Officer.

(v) Notice of Insurance Company be served through the nominated counsel of each company.

(vi) AIR be listed as a separate category in the cause list as miscellaneous application.

(vii) After appearance of the claimant, the AIR be registered as a claim petition.

(viii) If the claimant has filed a separate claim petition, the AIR be tagged with the claim petition.

 

9. Copy of this order be sent to all Motor Accident Claims Tribunals and the Insurance Companies for compliance.

10. It is noted that the reasons for delay in disposal of claim cases are as under:-

(i) Delay in service of the driver and owner of the offending vehicle.

(ii) Non-appearance of the driver and owner despite service.

(iii) Non-production of the driving licence by the driver and the owner.

(iv) Non-production of the insurance policy, registration cover, fitness, service and permit by the owner. FAO 842/2003 page 8 of 11 (v) The plea of the owner that he has sold the vehicle before the accident.

(vi) Avoidance of liability by the insurance company on the ground that the driver and owner are not producing the relevant documents.

(vii) In the case of uninsured vehicles, claimants are unable to enforce the award against the owner.

11. The delay in disposal of the claim petitions can be avoided by directing the police and the concerned Magistrate not to release the vehicle on superdari till the driver and owner appears before the Clams Tribunals and produce all the relevant documents and if the vehicle is uninsured, the owner should furnish sufficient security or the vehicle should be attached before judgment so that the recovery of the award to the extent of the value of the offending vehicle is safeguarded. The Division Bench of this Court has passed an order dated 24 th September, 2008 in W.P.(Crl.)No.878/2007 titled as Court on its own motion vs. State to the effect that the blue line buses shall not be released unless Rs.1,00,000/- is deposited in death cases with the concerned Magistrate.

12. At the initial stages of the investigation till the offending vehicle is released on supardari, the driver and the owner of the offending vehicle are normally in control of the Investigating Officer of the Police and he can produce them before the Claims FAO 842/2003 page 9 of 11 Tribunal. Investigating officer also has the full access to the eye- witness of the accident. The Investigating Officer of the police can produce the driver and owner before the Claims Tribunal along with the Accident Information Report under Section 158(6) of the Motor Vehicles Act before the Claims Tribunal who can record their statement and verify the documents and if all the documents are in order, the Insurance Company cannot delay or dispute the liability. Necessary guidelines in this regard need to be framed.

13. List before appropriate Bench on 3rd July, 2009 after obtaining orders of Hon’ble the Chief Justice for appropriate directions on the following suggestions:- (i) The Investigating Officer shall produce the driver, owner and eye-witnesses of the accident before the MACT along with the Report under Section 158(6) of the Motor Vehicles Act who shall record their statement relating to the driving licence, registration cover, insurance policy, fitness, permit etc. of the offending vehicle before release of the offending vehicle to the owner on superdari.

(ii) The motor vehicles involved in the accident shall not be released on superdari unless the owner and driver have appeared before the Court of MACT and have furnished all the relevant documents i.e. driving FAO 842/2003 page 10 of 11 licence, registration cover, insurance policy, fitness, permit etc. of the offending vehicle before release of the offending vehicle to the owner on superdari. If the vehicle is not insured, the vehicle shall be released on superdari only after the owner furnishes sufficient security to the satisfaction of the Court to pay the compensation or at least equal to the value of the vehicle.

J.R. MIDHA

(VACATION JUDGE)

JUNE 8, 2009

 

Releasing Vehicle on Superdari.

” it is established that Jaswant Singh was the rightful owner and in possession and control of the vehicle at the time of the accident. He had engaged the driver Ram Lal who was driving the vehicle at the time of the accident. Thus, Jaswant Singh and also the driver Ram Lal cannot escape the liability. In fact, it is the prime responsibility of Ram Lal being the principal tortfeasor to pay the compensation. Jaswant Singh, Respondent No.3 in MAC APP.924/2006 is liable being the rightful owner and employer of Ram Lal driver of the bus. Appellant Harish Chander in MAC APP. 47/2007 is liable as the registered owner of the bus. Thus all the three are jointly and severally liable to pay the compensation of `7,49,494/”.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 25th July, 2012

Pronounced on: 31st August, 2012

+ MAC.APP. 924/2006

HARISH CHANDER ….. Appellant Through Mr. D.R. Bhatia, Advocate

versus

DR. PRASUN GHOSH & ORS. ….. Respondent Through Mr. Sushil Kumar Pandey, Advocate

along with R-1 in person

+ MAC.APP. 47/2007

JASWANT SINGH ….. Appellant

Through Mr. K.R. Chawla, Advocate

versus

DR.PRASUN GHOSH & ORS. ….. Respondents

Through Mr. Sushil Kumar Pandey, Advocate

along with the Respondent No.1 in person

CORAM:

HON’BLE MR. JUSTICE G.P.MITTAL

JUDGMENT

G. P. MITTAL, J.

1. These two Appeals (MAC APP.924/2006 and MAC APP.47/2007) arise out of a judgment dated 05.10.2006 in a Claim Petition No.204/2006 preferred by Dr. Prasun Ghosh for having suffering injuries in a motor vehicle accident which occurred on 19.11.1997.

2. MAC APP.924/2006 has been preferred by Harish Chander, registered owner of bus No.DL-1P-3963 whereas MAC APP.47/2007 has been MAC APP 924/2006 & 47/2007 Page 1 of 23 preferred by Jaswant Singh, who is alleged to be the rightful owner and person in possession and control of the offending bus.

3. One Mohinder Singh Sachdeva was also impleaded as Respondent No.4 in the Claim Petition as he was alleged to be the purchaser of the bus from the registered owner.

4. In Para 1 of the MAC APP.924/2006, the Appellant Harish Chander (the registered owner) has given the status of the various persons involved in these Appeals, which is extracted hereunder:-

Name Status in Claim Status in Appeal Petition

Dr. Prasun Ghosh Petitioner (injured) Respondent No.1

Sh. Harish Chander Respondent No.1 Appellant herein

(owner of the vehicle) (MAC APP. No.924/2006)

Sh. Ram Lal Respondent No.2 Respondent No.2.

(driver Proceeded ex-parte)

New India Assurance Co. Ltd. Respondent No.3 Nil (deleted as the

vehicle was not

insured)

Sh. Jaswant Singh Respondent No.5 Respondent No.3

(in whose custody the vehicle

was at the time of accident)

Sh. Mohinder Singh Sachdeva Respondent No.4 Respondent No.4. (to whom the vehicle was sold

on GPA)

MAC APP 924/2006 & 47/2007 Page 2 of 23

5. For the sake of convenience, the parties shall be referred as under:-

(i) Harish Chander (Appellant in MAC APP.924/2006) shall be referred to as “the registered owner”.

(ii) Jaswant Singh (Appellant in MAC APP.47/2007) shall be referred to as the “alleged rightful owner”.

(iii) Dr. Prasun Ghosh (the First Respondent in both the Appeals) shall be referred to as “the Claimant”.

6. As per the averments made in the Claim Petition, the Claimant is a doctor by profession; he had already completed his MS (General Surgery) on the date of the accident. On the fateful day, that is, 19.11.1997 at about 4:15 P.M. the Claimant was riding on his two wheeler No.RJ-27-5M-4820 from DDU Hospital to his house in Chander Nagar, Janak Puri. He had to take a right turn towards Chander Nagar through a gap (between the middle pavement) on Mota Singh Marg. According to the averments, he gave an indicator and started taking a right turn. No sooner had he taken the turn, a bus No.DL- 1P-3963 came from the wrong side on the other carriage way and dashed against the right side of his (the Claimant‟s) two wheeler. As a result of the impact, the Claimant fell down and suffered injuries. He was initially removed to Mata Chanan Devi Hospital and was later shifted to Apollo Hospital. The Claimant suffered a fracture of right shaft femur, fracture of 8th and 9th rib (right side), fracture clavicle right, dislocation of right elbow apart from abrasion and bruises on other parts of the body. He underwent successive surgeries in Apollo Hospital. As there was non-union of the femur bone; he had to undertake another surgery. The fracture of right shaft femur ultimately resulted in permanent disability to the extent of 10% on account of shortening of right lower limb by one inch (Ex.PW-5/1). MAC APP 924/2006 & 47/2007 Page 3 of 23

7. Dr. Prasun Ghosh (the Claimant) sought compensation of `10 lacs. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of the bus driver. As against a claim of `10 lacs, the Claims Tribunal awarded compensation of `23,40,126/-. There is no dispute about the proposition that compensation more than claimed can be awarded. The only consideration is it should be just (See Nagappa v. Gurudayal Singh & Ors.(2003) 2 SCC 274). Further, the Claims Tribunal found that Harish Chander was the registered owner and Jaswant Singh was the rightful owner and in possession and control of the vehicle at the time of the accident and thus made the driver, the registered owner and the rightful owner jointly liable to pay the compensation.

8. The compensation awarded under various heads by the Claims Tribunal is extracted hereunder from Para 43 of the impugned judgment in a tabulated form:-

Sl.No. Compensation under various heads Awarded by the Claims Tribunal

1. Estimated loss of Income `2,16,000/- (12,000 x 18 months)

2. Future Loss of Income (96,000/- x 18) `17,28,000/-

3. Actual Medical Expenses `2,66,831/-

4. Future Treatment `20,000/-

5. Attendant Charges `29,295/-

6. Pain & Suffering `30,000/-

7. Conveyance & Special Diet `25,000/-

8. Loss of Amenities of Life `25,000/- MAC APP 924/2006 & 47/2007 Page 4 of 23 Total `23,40,126/-

Rounded off `23,40,000/-

9. The following contentions are raised on behalf of the registered owner:-

(i) There was contributory negligence on the part of the Claimant. Thus, the compensation awarded was liable to be reduced to the extent of the Claimant‟s contributory negligence.

(ii) The Claims Tribunal erred in assuming the loss of earning capacity to be 25% although the disability was only 10% in respect of the right lower limb. The Claimant‟s income was proved to have increased manifold at the time of hearing of the Appeal, thus, practically there was no loss of earning capacity. In any case, loss of earning capacity at the most should have been taken as 5%.

(iii) The registered owner (Appellant in MAC AP.924/206) had sold the offending bus on the basis of a Power of Attorney in favour of Respondent No.4 Mohinder Singh Sachdeva, who in turn sold the same to Jaswant Singh. Thus, the Appellant had no liability to pay the compensation. The entire liability should have been fastened on Jaswant Singh, the rightful owner.

10. The learned counsel for the alleged rightful owner supports the Appeal on the first two grounds. On the third ground, it is argued that the alleged rightful owner had nothing to do with the offending bus at the time of the accident. He merely furnished a surety bond for release of the driver on bail and took the offending vehicle on superdari. This was not enough to conclude that he (Jaswant Singh) was the rightful owner. The Claims

MAC APP 924/2006 & 47/2007 Page 5 of 23 Tribunal erred in making him liable to pay the compensation along with the driver and the registered owner.

11. Per contra, learned counsel for the Claimant urges that the compensation awarded towards pain and suffering, conveyance, special diet and loss of amenities was on the lower side. It is contended that the overall compensation awarded is just and reasonable.

NEGLIGENCE:-

12. Regarding the manner of the accident, the Claimant averred that on 19.11.1997 he was on his way back home in Chander Nagar, Janakpuri from DDU hospital, Hari Nagar on his two wheeler No. RJ-27-5M-4820; he gave an indicator to take a right turn towards Chander Nagar (Opposite Sharma Nursing Home); a blue line bus driven by Respondent No.2 (Ram Lal) came at a very high speed on the wrong side of the road and hit him. Thus, three important averments were made by the Claimant. Firstly, that he was taking a right turn by giving an indication; secondly, that blue line bus No.DL-1P- 3693 was driven in a rash and negligent manner by Respondent No.2 Ram Lal and, thirdly, that the bus came from the wrong side of the road.

13. Respondent No.2, the driver of the offending bus preferred not to contest the Claim Petition and was ordered to be proceeded ex-parte. The registered owner (Appellant in MAC.924/2006) and the alleged rightful owner (Appellant in MAC APP.47/2007) contested the Claim Petition by filing separate written statements. The registered owner simply denied the accident for want of knowledge. He stated that he sold out the bus in question to Respondent No.4 in the year 1995. It was stated that he was not even remotely concerned with the bus or the accident.

MAC APP 924/2006 & 47/2007 Page 6 of 23

14. The alleged rightful owner (Jaswant Singh) was completely silent as to the manner of the accident. He vaguely denied the averments made in Para 23 of the Claim Petition with regard to the negligence on the part of the bus driver and the manner of the accident. Thus, it is evident that the driver has preferred not to contest the manner of the accident and the alleged rightful owner was completely evasive and did not controvert the allegations with regard to the manner of the accident either specifically or by necessary implication.

15. Before delving further into all aspects of negligence, it would be appropriate to determine whether Appellant Harish Chander was infact the registered owner and whether Jaswant Singh was the rightful owner and was in possession of the offending bus at the time of the accident or not.

16. In the written statement filed by the rightful owner it was averred that the Claimant suffered injuries on account of his own rash and negligent driving as he was driving the two wheeler at a very high speed on the carriage way which was under repair and suddenly turned towards the right to go to his residence in Chander Nagar, Janakpuri. Para 23 of the written statement is extracted hereunder:-

“23. Para No.23 of the Petition is wrong, false and denied. Each and every allegations is specifically denied.

The true facts are that on 19/11/97 one lane of the road known as S.S. Mota Singh Marg was under repair as a result closed to traffic. Whole of the traffic was confined to the other lane. Bus No.DL-1P-3963 was coming from Possengipur Village and was going on the left side of the open lane of the said road. Petitioner was riding on a two wheeler scooter. Instead of driving on the open lane, the Petitioner to avoid traffic entered the lane of the said S.S. Mota Singh Marg which was under repair. Finding that there was no other traffic on the said lane, the Petitioner accelerated his scooter and was going along side of road divider. Without taking any caution, the Petitioner on reaching MAC APP 924/2006 & 47/2007 Page 7 of 23 the gap of the road divider turned suddenly at fast speed towards the right to go to his residence in Chander Nagar, Janak Puri. He did not care to pay attention to the traffic coming on the left side of the open lane. He was driving his scooter rashly at high speed as there was no other traffic in the lane under repair. On turning towards right, Petitioner ran into and hit the bus. Whatever injuries the Petitioner suffered were on account of his own rash and negligent driving. The driver of the bus Sh. Ram Lal was driving it cautiously and was not to blame at all for the accident”.

17. SI Inder Raj Singh who was examined as R1W1 (by Appellant Harish Chander) proved the certified copy on record of the criminal case. The Site Plan was proved as Ex.R1W1/4, where it was clearly stated by the IO that the carriage way shown with mark XX was the bad road (that is, the road under repair). This Site Plan was prepared by the IO on 19.11.1997 itself, that is, on the date of the accident. In cross-examination on behalf of Jaswant Singh R1W1 admitted that on the date of the accident one of the carriage way was closed on account of repair and traffic of both the sides was running on one carriage way only. In cross-examination on behalf of the Claimant, the IO admitted that the offending bus was proceeding from North to South.

18. The IO stated that the bus was travelling in the wrong direction due to blockage of one carriage way. This part of IO‟s testimony was of his own observation. He had no motive to depose falsely against any of the parties and thus, it would be difficult to disbelieve his testimony with regard to the fact that the carriage way shown with mark XX was closed for the traffic. It is true that the IO has shown a gap at Point X in the Site Plan where the Claimant on his two wheeler took the right turn, yet I would consider it only on account of inadvertence on the part of the IO. His testimony ought not to have been rejected b y the Claims Tribunal merely on the ground that the gap at Point X was not shown by him (the IO).

MAC APP 924/2006 & 47/2007 Page 8 of 23

19. It has to be borne in mind that no replication to the written statement of Jaswant Singh was filed by the Claimant to controvert the averment with regard to one carriage way being under repair. Thus, on the basis of the evidence adduced by the parties, particularly, taking into account the IO‟s testimony it is established:-

(i) That the bus No.DL-1P-3963 was moving from North to South on the carriage way meant for the traffic coming from the opposite direction.

(ii) The carriage way for the moving of the traffic from North to South was closed due to repairs.

(iii) The accident took place just at the gap when the Claimant who was also moving on his two wheeler from North to South took the right turn.

20. Thus, it is apparent that the offending bus as well as the two wheeler were proceeding in the same direction, that is, from North to South on two different carriage ways. The accident took place just near the gap, that is, when the two wheeler had just entered the other carriage way. It is true that Ram Lal, the driver of the offending bus has not entered the witness box to depose about the manner in which the accident took place. Thus, the Claimant‟s testimony that the bus was being driven in a rash and negligent manner has remained unchallenged and unrebutted. But, at the same time, as has been held by me earlier, the carriage way from which the Claimant was coming was under repair and was closed for the traffic. Thus, the Claimant was also expected to be vigilant while entering the carriage way on which traffic was moving from both the sides. Thus, in my view, there was contributory negligence to the extent of 25% on the part of the Claimant as well.

MAC APP 924/2006 & 47/2007 Page 9 of 23

21. Thus, the tortfeasor would be liable to pay the compensation to the Claimant only to the extent of 75%.

QUANTUM OF COMPENSATION

22. The quantum of compensation has been mainly challenged on the ground that the compensation awarded towards loss of earning capacity is exorbitant and excessive.

23. The Claims Tribunal dealt with the quantum of compensation in Paras 23 to

43. Paras 23 to 27 and 31 to 33 are extracted hereunder:-

“23. The petitioner is a doctor by profession and as per the MLC prepared at Mata Channan Devi Hospital he had sustained compound fracture in the right shaft femur; fracture in the 8th and 9th rib on the right side; fracture of the clevical right side; dislocation of right elbow; lacerated wound on the right leg, hand, left hand and abrasions on right shoulder. He stated that he was thereafter, referred to Apollo Hospital on 21.11.97 and was discharged on 13.12.97. His right hand was put under plaster as he was operated upon on 21.11.97 and a pin was put in the right tibea and was put under traction. On 22.11.97 he was shifted to ICU and put under ventilator and he remained there for seven days. Another operation was performed on 6.12.97 and a nail was put on the right femur. He was confined to bed till Dec.97 and he started walking with help of crutches from Jan 98 and was able to walk with help of stick from April 98. Thereafter, since the femur was not united another operation was performed on 13.10.98 at Apollo Hospital and was discharged on 16.10.98. He started to walk with help of crutches from Feb.99. His femur was not still united and he got second opinion from AIIMS where he was advised another operation. He submitted the bills of treatment and medicines of Mata Channan Devi Hospital and Apollo Hospital.

24. The details of the bills have been filed at the time of argument amounting to `1,98,831/- and at time of final argument another bill of Apollo Hospital dated 28.6.00 was also filed which show his admission on 22.6.00 and discharged on 28.6.00. This is subsequent to the statement made by the petitioner in the court and it is MAC APP 924/2006 & 47/2007 Page 10 of 23 amounting to `75,000/- out of which `7,000/- was given as discount which comes to `68,000/-. The bills submitted for his treatment till when his deposition was recorded is amounting to `1,98,831/-.

25. In his cross examination he stated that his treatment is still continuing and he is taking physiotherapy exercise, high protein and high calcium diet. He is walking with the help of stick and have been using it from 1.4.98 till 13.10.98. After this he was put on walking braises followed by single crutch and then by walking stick.

26. He after his cross examination on behalf of respondent no.1 was again examined and he filed the bills Ex.P30 of Apollo Hospital which was objected to. It has already come in the cross examination of the witness that he was continuously undergoing treatment and even if the same was filed subsequently, it appears to be justified and it can be taken into account. As regards the bills submitted during the course of argument, these bills are supported with the discharge summary prepared at the hospital showing that he underwent an operation, the ground was non union of fractured femur with implant failure regarding which he had already deposed that doctor had advised him another operation. Therefore, the same can be considered.

27. The strict procedure and the law of evidence as contained in the Indian Evidence Act and CPC are not applicable to the proceeding before Tribunal. The procedure has flexibility to take care of ongoing treatment. Even otherwise this subsequent bills as part of future treatment can be taken into account. Accordingly, I find the bills of treatment and medicines submitted as justified keeping in view the nature of injury and treatment.

x x x x x x x x

31. It is submitted by the counsel for the petitioner that the petitioner is in the job of surgery which requires long hours to do a surgery and operation, however, due to this disability, it is very difficult for him to excel professionally as the very nature of the job is demanding physically and on account of the disability, he is not able to work for long hours, therefore, even this disability of 10% in respect to his job is 100%.

32. I have considered the same. Surgeon by its very nature requires one to carry out the surgery continuously for a longer period and it sometimes stretch to about five to eight hours and with this kind of injury, it would not be possible to do surgery for such a longer period. MAC APP 924/2006 & 47/2007 Page 11 of 23 Under these circumstances, I treat the disability as regards the job of the petitioner to the extent of 25%.

33. The next important question is as to how the disability would affect his future income. The petitioner has testified that at the time of accident he had just completed MS (General Surgery) and proved the certificate or registration with Rajasthan Medical Council and also proved the interview call received from employment exchange and stated that at the time of completion of his MS, he was offered the job and he would have easily earned `15,000/- per month.”

24. The Claims Tribunal on the basis of the letter of offer Ex.P-25 took the Claimant‟s potential income as `12,000/- per month in the pre-revised scale of `3150-3350. The Claims Tribunal in Paras 31 and 32 extracted above, held that the disability to the extent of 10% in case of the Claimant has to be taken as 25%. Yet, the Claims Tribunal committed an error while granting the future loss of income as `17,28,000/- after making deduction of one-third towards expenses on entertainment, as instead of granting compensation to the extent of 25% it granted compensation on the basis of 100% disability. This seems to be a clerical error on the part of the Claims Tribunal.

25. It is true that there may not be any co-relation between the permanent disability vis-à-vis one limb or the whole body and the loss of future earning capacity.

26. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme Court brought out the difference between permanent disability and functional disability resulting in the loss of earning capacity. It was laid down that the compensation on account of loss of earning capacity has to be granted in accordance to the nature of job undertaken by the victim of the motor accident. Paras 11 and 14 of the report are extracted hereunder:

“11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and MAC APP 924/2006 & 47/2007 Page 12 of 23 after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. 2010 (10) SCC 254 and Yadava Kumar v. D.M., National Insurance Co. Ltd.2010 (10) SCC 341. x x x x x x x

14.For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of ‘loss of future earnings’, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.”

27. As stated earlier, the Claims Tribunal took the Claimant‟s income at the time of the accident to be `12,000/- per month. During the course of this Appeal, the Claimant was directed to produce his Income Tax Returns (ITRs) which shows that he had returned the income of `5,74,387 during the financial year MAC APP 924/2006 & 47/2007 Page 13 of 23 2010-2011, ` 5,23,202/- during the financial year 2009-2010, `3,71,265/- for the financial year 2008-2009, `3,01,476/- for the financial year 2007-2008, `2,24,731/- for the financial year 2006-2007, `2,14,724/- for the financial year 2005-2006, `1,70,588/- for the financial year 2003-2004, and `1,84,063/- for the financial year 2002-2003. Thus the Claimants income was gradually increasing.

28. On the basis of the ITR for the year 2011-2012, it is urged that the Claimant had an income of ` 18,42,000/- in that year. Thus, it is urged that there was no loss of earning capacity. The contention is misconceived.

29. The Claimant had completed his MS (General Surgery) before the date of the accident. He was offered a job of Senior Resident in General Surgery and Plastic Surgery. The Claimant completed his super-specialization in Urology a couple of years after the accident. He (the Claimant) suffered shortening of his right leg by one inch on account of the injury suffered by him. In para 32 of the impugned judgment extracted above, the Claims Tribunal had given the observation that a Surgeon has to work continuously for longer hours which may be a handicap with the Claimant on account of shortening of his right leg. Obviously, the Claimant would tire early. No expert evidence was produced by the Claimant as to the exact percentage of loss in the earning capacity. Admittedly, the Claimant is in private practice/service. I would, therefore, take the loss of earning capacity to be 10% only.

30. Taking in account the fact that at the time of the accident the Claimant was a specialized doctor who went on to complete his super-specialization and has got a very handsome income at this time, the Claimant is entitled to an addition of 50% in his potential income of `12,000/- per month (as per the actual offer) as accepted by the Claims Tribunal. The loss of future earning

MAC APP 924/2006 & 47/2007 Page 14 of 23 capacity would therefore come to `3,67,200/- (12,000/- + 50% x 12 x 17 x 10%).

31. One-third deduction towards personal and living expenses is not required to be made in case of awarding compensation towards loss of earning capacity (Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343).

32. The compensation of `30,000/- towards pain and suffering and `25,000/- towards conveyance and special diet is stated to be excessive by the Appellants. The same is claimed to be too meager by the Claimant.

33. It is established that the Appellant had to undergo successive surgeries on account of non union of his shaft femur right. Considering that the accident took place in the year 1997, compensation towards pain and suffering is enhanced from `30,000/- to `50,000/-. Compensation of `25,000/- towards special diet and conveyance and `25,000/- towards loss of amenities seems to be reasonable.

34. The compensation is re-computed as under:-

Sl.No. Compensation under various heads Awarded by this Court

1. Estimated Loss of Income `2,16,000/- (12,000/- x 18)

2. Loss of Earning Capacity `3,67,200/-

3. Actual Medical Expenses `2,66,831/-

4. Future Treatment `20,000/-

5. Attendant Charges `29,295/-

6. Pain & Suffering `50,000/-

7. Conveyance & Special Diet `25,000/-

MAC APP 924/2006 & 47/2007 Page 15 of 23

8. Loss of Amenities of Life `25,000/-

Total `9,99,326/-

35. The compensation stands reduced from `23,40,000/- to `9,99,326/- which shall carry interest @ 7.5% per annum from the date of filing of the Petition till its payment.

36. The Claimant is entitled to only 75% of the compensation awarded by this Court.

LIABILITY

37. While dealing with the issue of liability, the Claims Tribunal held that Harish Chander was the registered owner and Jaswant Singh was the rightful owner. The conclusions reached by the Claims Tribunal are extracted hereunder:-

“47. As regards the liability, respondent no.2 is the driver on whose negligence the petitioner had sustained injury. There is a dispute with respect to the ownership of the vehicle in question and is to be determined as to who is liable. There is no insurance company in this case.

48. Respondent No.1 had claimed that he had sold the vehicle to respondent no.4 vide General Power of Attorney dated 22.5.95 and in consideration respondent no.1 had received a cheque bearing no.733708 dated 15.4.95 for Rs.2,30,000/- issued by respondent no.4 and it was deposited by him in Central Bank of India, Janakpuri and the amount was credited in account of respondent no.1 and respondent no.4 took possession of the bus from him. He also filed the photocopy of the General Power of Attorney as Annexure A.

49. Respondent no.4 on the other hand claimed that the ownership of the vehicle remained in the name of respondent no.1 and M/s. Sach Sons Leasing & Finance Pvt. Ltd. had entered into re-finance arrangement with respondent no.1 to enable him to pay off his earlier debt and meet other personal requirements. It is also stated that respondent no.1 had applied to STA on 16.1.98 for replacement of the MAC APP 924/2006 & 47/2007 Page 16 of 23 bus long after the accident and NOC was given to respondent no.1 on 13.2.98 and thereafter, the said vehicle was sold to some party at Ghaziabad.

50.Respondent no.5 also claimed that the vehicle remained in the ownership of respondent no.1 and on 3.1.96 respondent no.1 had executed the Power of Attorney in his favour by virtue of which he was authorized to get the bus released from the court. He stated that he had taken the bus from respondent no.1 for plying on route no.704 and had entrusted the same to driver Ram Lal on 19.11.97 the date of accident.

51. The petitioner had examined PW2 Jagbir from STA office who had proved from the record that the bus in question was registered in the name of Harish Chander which was surrendered on 2.2.98. he further stated that there is one application/affidavit in the file made by Harish Chander and proved the same as Ex.RX.

52. PW4 Vinod Sharma from MLO office stated that Harish Chander was the sole registered owner of the vehicle on the date of accident. He further stated that the registered owner had not submitted any document with their office informing regarding the sale of the vehicle to respondent no.4.

x x x x x x x x x x x

54. SI Inderaj Singh who is the investigating officer of the case stated that he had issued to notice U/s. 133 of the MV Act to the owner and the owner had appeared before him and gave the required particulars in writing. He proved the notice Ex.R1W1/1 given by him to the owner Jaswant Singh (respondent no.5). He further stated that Jaswant Singh had furnished the personal bail bond which was accepted by him.

55. In his cross examination he stated that the RC of the vehicle was in the name of respondent no.1 at time of accident and stated that he had not seen the permit or insurance of the bus. He stated that he cannot recollect whether he had seen the affidavit of respondent no.1 Ex.RX.

56. Respondent no.1 on the other hand in his written statement deposed that he had no connection with the vehicle as he had sold the same to respondent no.4. In his evidence by way of affidavit he stated that he had not received any notice U/s. 133 of MV Act nor he had taken the vehicle on superdari nor he had employed the driver. He MAC APP 924/2006 & 47/2007 Page 17 of 23 however, stated that he had subsequently came to know that the vehicle was taken on superdari by Jaswant Singh and notice was given to him. He admitted that the RC, permit and insurance continued to remain in his name in the RTO office. He also admitted that he had applied for replacement of the vehicle on 16.1.98 and even gave indemnity bond before the authority on 18.2.98 when he had deposited the permit personally before the Secretary, STA. He however, could not remember whether on 31.3.98 he had personally appeared before the authority and the NOC was issued. He admitted that he had received the cheque from M/s. Sach Sons Leasing & Finance Pvt. Ltd. but further stated that it was not on account of finance but as the cost of the bus. He admitted that he had signed all the relevant Forms and GPA to be submitted with authority and stated that he had signed the blank form at the time of sale. He stated that he had not given any Power of Attorney dated 3.1.96 to Jaswant Singh.

57. Respondent no.4 stated that he is merely carrying out the business of financing the buses and had merely financed the purchase of bus of respondent no.1.

58. In his cross examination he stated that he is not aware whether the financed amount was paid off by respondent no.1 by 8.10.97, however, admitted that the loan was cleared by 8.10.97. He denied the suggestion that he had sold the vehicle to Jaswant Singh and stated that their finance company is maintaining the accounts in the ordinary course of business.

59. R5W1 had testified that respondent no.1 was the registered owner and he was not the registered owner at any point of time and stated that he had not appointed Ram Lal to drive the vehicle but stood surety for the driver. He stated that he was not served with notice u/s. 133 of the M V Act to produce the driver, however, he after seeing the same stated that he had given the reply at point A to A meaning thereby that he had signed the same. He stated that he gave the original Power of Attorney to the police and placed the photocopy of the same on record. He denied the suggestion that he was the owner of the bus at time of accident. However, stated that the superdarinama and jamanatnama bears his signatures.

60. Respondent no.1 has claimed that he had sold the vehicle to respondent no.4 who on the other hand claimed that he had merely financed the vehicle, however, the financed amount was paid off till MAC APP 924/2006 & 47/2007 Page 18 of 23 8.10.97 i.e. prior to the date of accident. On the date of accident, admittedly respondent no.5 had got the vehicle released on superdari and he also got the driver of the bus released on bail. When he appeared as witness in the court, stated that he had not appointed Ram Lal as driver to drive the bus whereas, he in his written statement has categorically stated that had entrusted the bus to Ram Lal who was plying the bus. He has further stated in the written statement that he had taken the bus from respondent no.1 for plying on route no.704, meaning thereby that he was in actual control of the vehicle on the date of accident and was supervising the same and that is the reason why the investigating officer has given the notice to him and he got the vehicle released on superdari and also got the driver released on bail………….”

38. From Harish Chander‟s testimony as R1W2 it is evident that the registration certificate, permit and the policy of insurance continued in his name. He did not take steps to get the offending vehicle transferred in the name of Respondent No.4 or in the name of Jaswant Singh (the alleged rightful owner) as provided under Section 50 of the Motor Vehicles Act, 1988 (the Act). It is thus, established that Harish Chander was the registered owner not only on the date of the accident but even thereafter till February, 1998, when he applied for replacement of the vehicle with a new one and submitted an Indemnity Bond before the Transport Authority.

39. Section 2 (30) of the Act defines „owner‟ as the person in whose name a motor vehicle stands registered and where a vehicle is subject to Higher Purchase Agreement or an Agreement of Lease, the person in possession of the vehicle under that Agreement.

40. Now turning to the question of as to who was the rightful owner and person in control of the offending bus at the time of the accident.

MAC APP 924/2006 & 47/2007 Page 19 of 23

41. Although, Harish Chander, the registered owner claimed that the offending bus was transferred in favour of Mohinder Singh Sachdeva (Respondent No.4) in March, 1995. He deposed that a sum of `2,50,000/- was paid by him (Mohinder Singh Sachdeva) to him (Harish Chander) including a sum of `2,30,000/- by way of a cheque. He deposed that he had no connection with the bus on the date of the accident, that is, 19.11.1997. In cross examination, he admitted that cheque of `2,30,000/- was given by M/s. Sachsons Leasing & Finance Pvt. Ltd.. He, however, stated that this was not by way of finance to him, it was received by him as the cost of the bus. Thus, nothing substantial was brought on record to establish that the vehicle was ever sold to Mohinder Singh Sachdeva (Respondent No.4). It appears that Respondent No.4 might have been involved in the financial arrangements for the eventual purchaser of the bus.

42. As far as Jaswant Singh is concerned, he was not impleaded in the initial petition filed on 07.03.1998. His name was added by way of an amendment on 16.02.2000 as Respondent No.5 (before the Claims Tribunal). Jaswant Singh filed his written statement on 1.12.2000 and in reply to Para 15 of the Claim Petition stated as under:-

“15. Para No. 15 is false, wrong and denied. Throughout the said vehicle remained in the ownership of Respondent No.1. it may be pointed out that on 3/1/1996 the Respondent No.1 executed a Power of Attorney in favour of the answering Respondent. By virtue of said Power of Attorney the answering Respondent was authorized to get the said bus released from the court or police station in the event of the same being involved in an accident and seized by the police. Respondent No.5 had taken the said bus from respondent no.1 fro plying the same on route No.704 and had entrusted it to Shri Ram Lal Driver who was plying and driving the same on 19-11-97. It is further submitted that on 19-11-97 one lane of the road known as S.S. Mota Singh Marg was under repair and as a result closed to MAC APP 924/2006 & 47/2007 Page 20 of 23 traffic. Whole of the traffic was confined to the other lane Bus No.DL-1P-3963 was coming from Possengipur Village and going on the left side of the open lane of the said road Petitioner was riding on a two wheeler scooter. Instead of driving on the open lane, the Petitioner to avoid traffic entered the lane of the said S.S. Mota Singh Marg which was under repair. Finding that there was no other traffic on the said lane, the Petitioner accelerated his scooter and was going along side of road divider. Without taking any caution, the Petitioner on reaching the gap of the road divider turned suddenly at fast speed towards the right to go to his residence in Chander Nagar, Janak Puri. He did not care to pay attention t the traffic coming on the left side of the open lane. He was driving his scooter rashly at high speed as there was no other traffic in the lane under repair. On turning towards right, Petitioner ran into and hit the bus. Whatever injuries the Petitioner suffered were on account of his own rash and negligent driving. The driver of the bus Sh. Ram Lal was driving it cautiously and was not to blame at all for the accident.”

43. Thus, Jaswant Singh (the alleged rightful owner) was categorical that the bus was taken by him on the basis of the Power of Attorney given by the registered owner in his favour. He also admitted that he was plying the bus on route No.704 and had entrusted the bus to Ram Lal (driver). Although, during the course of evidence he tried to get out of this admission, but, the same is of no consequence. Otherwise also, Jaswant Singh admitted his signature on superdarinama Ex.R5W1/X1. He admitted having given reply to the Notice under Section 133 of the Act (Ex.R5W1/X).

44. SI Inder Raj Singh, the IO of the criminal case being FIR No1268/1997 registered with regard to this accident testified that the superdarinama Ex.R1W1/2 was executed by Jaswant Singh. Thus, in view of the clear admission in the written statement, it is established that Jaswant Singh was the rightful owner and the person in control of the bus at the time of the

MAC APP 924/2006 & 47/2007 Page 21 of 23 accident. He was running this bus on route No.704 and had engaged Ram Lal (Respondent No.2) as the driver on the offending vehicle.

45. As per Section 50 (1) (b) the transferee of the vehicle is under obligation to report within 30 days about the transfer of the vehicle to the Registering Authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, and is expected to forward the certificate of registration to the Registering Authority together with prescribed fee and a copy of the report received by him from the transferor for effective transfer.

46. In Dr. T.V. Jose v. Chacho P.M., (2001) 8 SCC 748, the Supreme Court ruled that the registered owner cannot escape the liability qua third party. No explanation has been given by the registered owner as to why the Registering Authority was not informed about the transfer of the vehicle. Thus, on the authority of T.V. Jose and Pushpa @ Leela & Ors. v. Shakuntala & Ors. 2011 (2) SCC 240, the registered owner cannot escape the liability.

47. As stated earlier, it is established that Jaswant Singh was the rightful owner and in possession and control of the vehicle at the time of the accident. He had engaged the driver Ram Lal who was driving the vehicle at the time of the accident. Thus, Jaswant Singh and also the driver Ram Lal cannot escape the liability. In fact, it is the prime responsibility of Ram Lal being the principal tortfeasor to pay the compensation. Jaswant Singh, Respondent No.3 in MAC APP.924/2006 is liable being the rightful owner and employer of Ram Lal driver of the bus. Appellant Harish Chander in MAC APP. 47/2007 is liable as the registered owner of the bus. Thus all the three are jointly and severally liable to pay the compensation of `7,49,494/- (` 9,99,326/- x 75%).

MAC APP 924/2006 & 47/2007 Page 22 of 23

48. The amount deposited, if any, and the statutory deposit shall be released in favour of the Claimant. The Claimant shall be entitled to take execution to recover rest of the amount, if any paid within six weeks.

49. Both the Appeals are disposed of in above terms.

50. Pending Applications stands disposed of.

(G.P. MITTAL)

JUDGE

AUGUST 31, 2012

 

Maintenance for wife and children u/s 125 0f Cr.P.C.

No doubt, in Chanmuniya (supra), the Division Bench of this
Court took the view that the matter needs to be considered with
respect to Section 125,Cr.P.C., by larger bench and in para 41, three
questions are formulated for determination by a larger bench which
are as follows:

“1. Whether the living together of a man and woman as husband
and wife for a considerable period of time would raise the
presumption of a valid marriage between them and whether
such a presumption would entitle the woman to maintenance
under Section 125,Cr.P.C.?

2. Whether strict proof of marriage is essential for a claim
of maintenance under Section 125,Cr.P.C. having regard to
the provisions of the Domestic Violence Act, 2005?

3. Whether a marriage performed according to the customary
rites and ceremonies, without strictly fulfilling the
requisites of Section 7(1) of the Hindu Marriage Act, 1955,
or any other personal law would entitle the woman to
maintenance under Section 125,Cr.P.C.?”

—————————————————————————————————————————————-

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL MISCELLANEOUS PETITION No.19530/2013

IN

SPECIAL LEAVE PETITION (CRL.) No.8596/2013

 

 

Badshah ….Petitioner

Versus

Sou.Urmila Badshah Godse & Anr. …Respondents

 
J U D G M E N T

A.K.SIKRI,J.

 
1. There is a delay of 63 days in filing the present Special Leave
Petition and further delay of 11 days in refilling Special Leave
Petition. For the reasons contained in the application for
condonation of delay, the delay in filing and refilling of SLP is
condoned.

2. The petitioner seeks leave to appeal against the judgment and
order dated 28.2.2013 passed by the High Court of Judicature at
Bombay, Bench at Aurangabad in Criminal Writ Petition No.144/2012.
By means of the impugned order, the High Court has upheld the award
of maintenance to respondent No.1 at the rate of Rs.1000/- per month
and to respondent No.2 (daughter) at the rate of Rs.500/- per month
in the application filed by them under Section 125 of the Code of
Criminal Procedure (Cr.P.C.) by the learned Trial Court and affirmed
by the learned Additional Sessions Judge. Respondents herein had
filed proceedings under Section 125, Cr.P.C. before Judicial
Magistrate First Class (JMFC) alleging therein that respondent No.1
was the wife of the petitioner herein and respondent No.2 was their
daughter, who was born out of the wedlock.

3. The respondents had stated in the petition that respondent No.1
was married with Popat Fapale. However, in the year 1997 she got
divorce from her first husband. After getting divorce from her first
husband in the year 1997 till the year 2005 she resided at the house
of her parents. On demand of the petitioner for her marriage through
mediators, she married him on 10.2.2005 at Devgad Temple situated at
Hivargav-Pavsa. Her marriage was performed with the petitioner as per
Hindu Rites and customs. After her marriage, she resided and
cohabited with the petitioner. Initially for 3 months, the
petitioner cohabited and maintained her nicely. After about three
months of her marriage with petitioner, one lady Shobha came to the
house of the petitioner and claimed herself to be his wife. On
inquiring from the petitioner about the said lady Shobha, he replied
that if she wanted to cohabit with him, she should reside quietly.
Otherwise she was free to go back to her parents house. When Shobha
came to the house of petitioner, respondent No.1 was already pregnant
from the petitioner. Therefore, she tolerated the ill-treatment of
the petitioner and stayed alongwith Shobha. However, the petitioner
started giving mental and physical torture to her under the influence
of liquor. The petitioner also used to doubt that her womb is
begotten from somebody else and it should be aborted. However, when
the ill-treatment of the petitioner became intolerable, she came back
to the house of her parents. Respondent No.2, Shivanjali, was born
on 28.11.2005. On the aforesaid averments, the respondents claimed
maintenance for themselves.

4. The petitioner contested the petition by filing his written
statement. He dined his relation with respondent Nos.1 and 2 as his
wife and daughter respectively. He alleged that he never entered
with any matrimonial alliance with respondent No.1 on 10.2.2005, as
claimed by respondent No.1 and in fact respondent No.1, who was in
the habit of leveling false allegation, was trying to blackmail him.
He also denied co-habitation with respondent No.1 and claimed that he
was not the father of respondent No.2 either. According to the
petitioner, he had married Shobha on 17.2.1979 and from that marriage
he had two children viz. one daughter aged 20 years and one son aged
17 years and Shobha had been residing with him ever since their
marriage. Therefore, respondent No.1 was not and could not be his
wife during the subsistence of his first marriage and she had filed a
false petition claiming her relationship with him.

5. Evidence was led by both the parties and after hearing the
arguments the learned JMFC negatived the defence of the petitioner.
In his judgment, the JMFC formulated four points and gave his answer
thereto as under:

|1. |Does applicant no.1 Urmila proves that she is |Yes |
| |a wife and applicant No.2 Shivanjali is | |
| |daughter of non applicant? | |
|2. |Does applicant No.1 Urmila proves that |Yes |
| |non-applicant has deserted and neglected them| |
| |to maintain them through having sufficient | |
| |means? | |
|3. |Whether applicant No.1 Urmila and Applicant |Yes |
| |No.2 Shivanjali are entitled to get | |
| |maintenance from non-applicant? | |
|4. |If yes, at what rate? |Rs. 1,000/- |
| | |p.m. to |
| | |Applicant |
| | |No. 1 and |
| | |Rs. 500/- |
| | |p.m. to |
| | |Applicant |
| | |No. 2. |

 

 

6. It is not necessary to discuss the reasons which prevailed with
the learned JMFC in giving his findings on Point Nos.1 and 2 on the
basis of evidence produced before the Court. We say so because of
the reason that these findings are upheld by the learned Additional
Sessions Judge in his judgment while dismissing the revision petition
of the petitioner herein as well as the High Court. These are
concurrent findings of facts with no blemish or perversity. It was
not even argued before us as the argument raised was that in any case
respondent No.1 could not be treated as “wife” of the petitioner as
he was already married and therefore petition under Section 125 of
the Cr.P.C. at her instance was not maintainable. Since, we are
primarily concerned with this issue, which is the bone of contention,
we proceed on the basis that the marriage between the petitioner and
respondent No.1 was solemnized; respondent No.1 co-habited with the
petitioner after the said marriage; and respondent No.2 is begotten
as out of the said co-habitation, whose biological father is the
petitioner. However, it would be pertinent to record that respondent
No.1 had produced overwhelming evidence, which was believed by the
learned JMFC that the marriage between the parties took place on
10.2.2005 at Devgad Temple. This evidence included photographs of
marriage. Another finding of fact was arrived at, namely, respondent
No.1 was a divorcee and divorce had taken place in the year 1997
between her and her first husband, which fact was in the clear
knowledge of the petitioner, who had admitted the same even in his
cross-examination.

7. The learned JMFC proceeded on the basis that the petitioner was
married to Shobha and was having two children out of the wedlock.
However, at the time of solemnizing the marriage with respondent
No.1, the petitioner intentionally suppressed this fact from her and
co-habited with respondent No.1 as his wife.

8. The aforesaid facts emerging on record would reveal that at the
time when the petitioner married the respondent No.1, he had living
wife and the said marriage was still subsisting. Therefore, under
the provisions of Hindu Marriage Act, the petitioner could not have
married second time. At the same time, it has also come on record
that the petitioner duped respondent No.1 by not revealing the fact
of his first marriage and pretending that he was single. After this
marriage both lived together and respondent No.2 was also born from
this wedlock. In such circumstances, whether respondents could filed
application under Section 125 of the Cr.P.C., is the issue. We would
like to pin point that in so far as respondent No.2 is concerned, who
is proved to be the daughter of the petitioner, in no case he can
shun the liability and obligation to pay maintenance to her. The
learned counsel ventured to dispute the legal obligation qua
respondent No.1 only.

9. The learned counsel for the petitioner referred to the judgment
of this Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay
& Anr.[1] In that case, it was held that a Hindu lady who married
after coming into force Hindu Marriage Act, with a person who had a
living lawfully wedded wife cannot be treated to be “legally wedded
wife” and consequently her claim for maintenance under Section 125,
Cr.P.C. is not maintainable. He also referred to later judgments in
the case of Savitaben Somabai Bhatiya vs. State of Gujarat & Ors.[2]
wherein the aforesaid judgment was followed. On the strength of
these two judgments, the learned counsel argued that the expression
“wife” in Section 125 cannot be stretched beyond the legislative
intent, which means only a legally wedded-wife. He argued that
Section 5(1) (i) of the Hindu Marriage Act, 1955 clearly prohibits
2nd marriage during the subsistence of the 1st marriage, and so
respondent No.1 cannot claim any equity; that the explanation clause
(b) to Section 125 Cr.P.C. mentions the term “divorce” as a category
of claimant, thus showing that only a legally wedded-wife can claim
maintenance. He, thus, submitted that since the petitioner had
proved that he was already married to Shobha and the said marriage
was subsisting on the date of marriage with respondent No.1, this
marriage was
void and
respondent No.1 was not legally wedded wife and therefore had no
right to move application under Section 125 of the Cr.P.C.

10. Before we deal with the aforesaid submission, we would like to
refer two more judgments of this Court. First case is known as
Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr.[3] In this
case it was held:

“The validity of the marriage for the purpose of
summary proceeding under s.125 Cr.P.C. is to be determined on
the basis of the evidence brought on record by the parties. The
standard of proof of marriage in such proceeding is not as
strict as is required in a trial of offence under section 494 of
the IPC. If the claimant in proceedings under s.125 of the Code
succeeds in showing that she and the respondent have lived
together as husband and wife, the court can presume that they
are legally wedded spouse, and in such a situation, the party
who denies the marital status can rebut the presumption. Once it
is admitted that the marriage procedure was followed then it is
not necessary to further probe into whether the said procedure
was complete as per the Hindu Rites in the proceedings under
S.125,Cr.P.C. From the evidence which is led if the Magistrate
is prima facie satisfied with regard to the performance of
marriage in proceedings under S.125, Cr.P.C. which are of
summary nature strict proof of performance of essential rites is
not required.

It is further held:

It is to be remembered that the order passed in an
application under section 125 Cr.P.C. does not finally determine
the rights and obligations of the parties and the said section
is enacted with a view to provide summary remedy for providing
maintenance to a wife, children and parents. For the purpose of
getting his rights determined, the appellant has also filed
Civil Suit which is spending before the trial court. In such a
situation, this Court in S.Sethurathinam Pillai vs. Barbara
alias Dolly Sethurathinam, (1971) 3 SCC 923, observed that
maintenance under section 488, Cr.P.C. 1898 (similar to Section
125, Cr.P.C.) cannot be denied where there was some evidence on
which conclusion for grant of maintenance could be reached. It
was held that order passed under Section 488 is a summary order
which does not finally determine the rights and obligations of
the parties; the decision of the criminal Court that there was a
valid marriage between the parties will not operate as decisive
in any civil proceeding between the parties.”

11. No doubt, it is not a case of second marriage but deals with
standard of proof under Section 125, Cr.P.C. by the applicant to
prove her marriage with the respondent and was not a case of second
marriage. However, at the same time, this reflects the approach
which is to be adopted while considering the cases of maintenance
under Section 125,Cr.P.C. which proceedings are in the nature of
summary proceedings.

12. Second case which we would like to refer is Chanmuniya vs.
Virendra Kumar Singh Kushwaha & Anr.[4] The Court has held that
the term “wife” occurring in Section 125, Cr.P.C. is to be given very
wide interpretation. This is so stated in the following manner:

“A broad and expansive interpretation should be given to
the term “wife” to include even those cases where a man and woman
have been living together as husband and wife for reasonably long
period of time, and strict proof of marriage should not be a pre-
condition for maintenance under Section 125 of the Cr.P.C. so as to
fulfill the true spirit and essence of the beneficial provision of
maintenance under Section 125.”

 
13. No doubt, in Chanmuniya (supra), the Division Bench of this
Court took the view that the matter needs to be considered with
respect to Section 125,Cr.P.C., by larger bench and in para 41, three
questions are formulated for determination by a larger bench which
are as follows:

“1. Whether the living together of a man and woman as husband
and wife for a considerable period of time would raise the
presumption of a valid marriage between them and whether
such a presumption would entitle the woman to maintenance
under Section 125,Cr.P.C.?

2. Whether strict proof of marriage is essential for a claim
of maintenance under Section 125,Cr.P.C. having regard to
the provisions of the Domestic Violence Act, 2005?

3. Whether a marriage performed according to the customary
rites and ceremonies, without strictly fulfilling the
requisites of Section 7(1) of the Hindu Marriage Act, 1955,
or any other personal law would entitle the woman to
maintenance under Section 125,Cr.P.C.?”

14. On this basis, it was pleaded before us that this matter be
also tagged along with the aforesaid case. However, in the facts of
the present case, we do not deem it proper to do so as we find that
the view taken by the courts below is perfectly justified. We are
dealing with a situation where the marriage between the parties has
been proved. However, the petitioner was already married. But he
duped the respondent by suppressing the factum of alleged first
marriage. On these facts, in our opinion, he cannot be permitted to
deny the benefit of maintenance to the respondent, taking advantage
of his own wrong. Our reasons for this course of action are stated
hereinafter.

15. Firstly, in Chanmuniya case, the parties had been living
together for a long time and on that basis question arose as to
whether there would be a presumption of marriage between the two
because of the said reason, thus, giving rise to claim of
maintenance under Section 125,Cr.P.C. by interpreting the term “wife”
widely. The Court has impressed that if man and woman have been
living together for a long time even without a valid marriage, as in
that case, term of valid marriage entitling such a woman to
maintenance should be drawn and a woman in such a case should be
entitled to maintain application under Section 125,Cr.P.C. On the
other hand, in the present case, respondent No.1 has been able to
prove, by cogent and strong evidence, that the petitioner and
respondent No.1 had been married each other.

16. Secondly, as already discussed above, when the marriage between
respondent No.1 and petitioner was solemnized, the petitioner had
kept the respondent No.1 in dark about her first marriage. A false
representation was given to respondent No.1 that he was single and
was competent to enter into martial tie with respondent No.1. In
such circumstances, can the petitioner be allowed to take advantage
of his own wrong and turn around to say that respondents are not
entitled to maintenance by filing the petition under Section
125,Cr.P.C. as respondent No.1 is not “legally wedded wife” of the
petitioner? Our answer is in the negative. We are of the view that
at least for the purpose of Section 125 Cr.P.C., respondent No.1
would be treated as the wife of the petitioner, going by the spirit
of the two judgments we have reproduced above. For this reason, we
are of the opinion that the judgments of this Court in Adhav and
Savitaben cases would apply only in those circumstances where a woman
married a man with full knowledge of the first subsisting marriage.
In such cases, she should know that second marriage with such a
person is impermissible and there is an embargo under the Hindu
Marriage Act and therefore she has to suffer the consequences
thereof. The said judgment would not apply to those cases where a
man marriages second time by keeping that lady in dark about the
first surviving marriage. That is the only way two sets of judgments
can be reconciled and harmonized.

17. Thirdly, in such cases, purposive interpretation needs to be
given to the provisions of Section 125,Cr.P.C. While dealing with
the application of destitute wife or hapless children or parents
under this provision, the Court is dealing with the marginalized
sections of the society. The purpose is to achieve “social justice”
which is the Constitutional vision, enshrined in the Preamble of the
Constitution of India. Preamble to the Constitution of India clearly
signals that we have chosen the democratic path under rule of law to
achieve the goal of securing for all its citizens, justice, liberty,
equality and fraternity. It specifically highlights achieving their
social justice. Therefore, it becomes the bounden duty of the Courts
to advance the cause of the social justice. While giving
interpretation to a particular provision, the Court is supposed to
bridge the gap between the law and society.

18. Of late, in this very direction, it is emphasized that the
Courts have to adopt different approaches in “social justice
adjudication”, which is also known as “social context adjudication”
as mere “adversarial approach” may not be very appropriate. There
are number of social justice legislations giving special protection
and benefits to vulnerable groups in the society. Prof. Madhava
Menon describes it eloquently:

“It is, therefore, respectfully submitted that “social
context judging” is essentially the application of equality
jurisprudence as evolved by Parliament and the Supreme Court in
myriad situations presented before courts where unequal parties
are pitted in adversarial proceedings and where courts are
called upon to dispense equal justice. Apart from the social-
economic inequalities accentuating the disabilities of the poor
in an unequal fight, the adversarial process itself operates to
the disadvantage of the weaker party. In such a situation, the
judge has to be not only sensitive to the inequalities of
parties involved but also positively inclined to the weaker
party if the imbalance were not to result in miscarriage of
justice. This result is achieved by what we call social context
judging or social justice adjudication.”[5]

19. Provision of maintenance would definitely fall in this category
which aims at empowering the destitute and achieving social justice
or equality and dignity of the individual. While dealing with cases
under this provision, drift in the approach from “adversarial”
litigation to social context adjudication is the need of the hour.

20. The law regulates relationships between people. It
prescribes patterns of behavior. It reflects the values of society.
The role of the Court is to understand the purpose of law in society
and to help the law achieve its purpose. But the law of a society is
a living organism. It is based on a given factual and social reality
that is constantly changing. Sometimes change in law precedes
societal change and is even intended to stimulate it. In most cases,
however, a change in law is the result of a change in social reality.
Indeed, when social reality changes, the law must change too. Just
as change in social reality is the law of life, responsiveness to
change in social reality is the life of the law. It can be said that
the history of law is the history of adapting the law to society’s
changing needs. In both Constitutional and statutory interpretation,
the Court is supposed to exercise direction in determining the proper
relationship between the subjective and objective purpose of the law.

 

21. Cardozo acknowledges in his classic[6]

“….no system of jus scriptum has been able to escape the need
of it”, and he elaborates: “It is true that Codes and Statutes
do not render the Judge superfluous, nor his work perfunctory
and mechanical. There are gaps to be filled. There are
hardships and wrongs to be mitigated if not avoided.
Interpretation is often spoken of as if it were nothing but the
search and the discovery of a meaning which, however, obscure
and latent, had none the less a real and ascertainable pre-
existence in the legislator’s mind. The process is, indeed,
that at times, but it is often something more. The
ascertainment of intention may be the least of a judge’s
troubles in ascribing meaning to a stature.”

 

Says Gray in his lecture[7]

“The fact is that the difficulties of so-called
interpretation arise when the legislature has had no meaning at
all; when the question which is raised on the statute never
occurred to it; when what the judges have to do is, not to
determine that the legislature did mean on a point which was
present to its mind, but to guess what is would have intended on
a point not present to its mind, if the point had been present.”

 

 
22. The Court as the interpreter of law is supposed to supply
omissions, correct uncertainties, and harmonize results with justice
through a method of free decision—“libre recherché sceintifique” i.e.
“free Scientific research”. We are of the opinion that there is a
non-rebuttable presumption that the Legislature while making a
provision like Section 125 Cr.P.C., to fulfill its Constitutional
duty in good faith, had always intended to give relief to the woman
becoming “wife” under such circumstances.

23. This approach is particularly needed while deciding the issues
relating to gender justice. We already have examples of exemplary
efforts in this regard. Journey from Shah Bano[8] to Shabana Bano[9]
guaranteeing maintenance rights to Muslim women is a classical
example.

24. In Rameshchandra Daga v. Rameshwari Daga[10], the right of
another woman in a similar situation was upheld. Here the Court had
accepted that Hindu marriages have continued to be bigamous despite
the enactment of the Hindu Marriage Act in 1955. The Court had
commented that though such marriages are illegal as per the
provisions of the Act, they are not ‘immoral’ and hence a financially
dependent woman cannot be denied maintenance on this ground.

25. Thus, while interpreting a statute the court may not only take
into consideration the purpose for which the statute was enacted, but
also the mischief it seeks to suppress. It is this mischief rule,
first propounded in Heydon’s Case[11] which became the historical
source of purposive interpretation. The court would also invoke the
legal maxim construction ut res magis valeat guam pereat, in such
cases i.e. where alternative constructions are possible the Court
must give effect to that which will be responsible for the smooth
working of the system for which the statute has been enacted rather
than one which will put a road block in its way. If the choice is
between two interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation should be avoided.
We should avoid a construction which would reduce the legislation to
futility and should accept the bolder construction based on the view
that Parliament would legislate only for the purpose of bringing
about an effective result. If this interpretation is not accepted,
it would amount to giving a premium to the husband for defrauding the
wife. Therefore, at least for the purpose of claiming maintenance
under Section 125, Cr.P.C., such a woman is to be treated as the
legally wedded wife.

26. The principles of Hindu Personal Law have developed in an
evolutionary way out of concern for all those subject to it so as to
make fair provision against destitution. The manifest purpose is to
achieve the social objectives for making bare minimum provision to
sustain the members of relatively smaller social groups. Its
foundation spring is humanistic. In its operation field all though,
it lays down the permissible categories under its benefaction, which
are so entitled either because of the tenets supported by clear
public policy or because of the need to subserve the social and
individual morality measured for maintenance.

27. In taking the aforesaid view, we are also encouraged by the
following observations of this Court in Capt.Ramesh Chander Kaushal
vs. Veena Kaushal [12]:

“The brooding presence of the Constitutional empathy for
the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed,
it is possible to be selective in picking out that
interpretation out of two alternatives which advances the cause
– the cause of the derelicts.”

28. For the aforesaid reasons, we are not inclined to grant leave
and dismiss this petition.

..………………………J.
[Ranjana Prakash Desai]

 

 
…………….………….J.
[A.K.Sikri]
New Delhi,
October 18, 2013
———————–
[1] (1988) 1 SCC 530
[2] (2005) 3 SCC 636
[3] (1999) 7 SCC 675
[4] (2011) 1 SCC 141
[5] Delivered a key note address on “Legal Education in Social Context”
[6] The Nature of Judicial Process
[7] From the Book “The Nature and Sources of the Law” by John Chipman
Gray
[8] AIR 1985 SC 945
[9] AIR 2010 SC 305
[10] AIR 2005 SC 422
[11] (1854) 3 Co.Rep.7a,7b
[12] (1978) 4 SCC 70

 

” this case concerned with the question whether the
Special Judge/Magistrate is justified in referring a private complaint
made under Section 200 Cr.P.C. for investigation by the Deputy
Superintendent of Police – Karnataka Lokayukta, in exercise of powers
conferred under Section 156(3) Cr.P.C. without the production of a
valid sanction order under Section 19 of the Prevention of Corruption
Act, 1988.

. The Appellants herein filed a private complaint under Section
200 of Cr.P.C. before the Additional City Civil and Special Judge for
Prevention of Corruption on 9.10.2012. The complaint of the
Appellants was that the first respondent with mala fide intention
passed an order dated 30.6.2012 in connivance with other officers and
restored valuable land in favour of a private person. On a complaint
being raised, the first respondent vide order dated 6.10.2012 recalled
the earlier order. Alleging that the offence which led to issuance of
the order dated 30.6.2012 constituted ingredients contained under
Section 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section
120-B IPC and Section 149 IPC and Section 8, 13(1)(c), 13(1)(d),
13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption
Act, a private complaint was preferred under Section 200 Cr.P.C.

—————————————————————————————————————————————-

 

 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1590-1591 OF 2013
(@ Special Leave Petition (Criminal) Nos.6652-6653 of 2013)
Anil Kumar & Ors. ….. Appellants
Versus
M.K. Aiyappa & Anr. ….. Respondents

 
J U D G M E N T

 

 
K.S. RADHAKRISHNAN, J.

 
1. Leave granted.
2. We are in this case concerned with the question whether the
Special Judge/Magistrate is justified in referring a private complaint
made under Section 200 Cr.P.C. for investigation by the Deputy
Superintendent of Police – Karnataka Lokayukta, in exercise of powers
conferred under Section 156(3) Cr.P.C. without the production of a
valid sanction order under Section 19 of the Prevention of Corruption
Act, 1988.
3. The Appellants herein filed a private complaint under Section
200 of Cr.P.C. before the Additional City Civil and Special Judge for
Prevention of Corruption on 9.10.2012. The complaint of the
Appellants was that the first respondent with mala fide intention
passed an order dated 30.6.2012 in connivance with other officers and
restored valuable land in favour of a private person. On a complaint
being raised, the first respondent vide order dated 6.10.2012 recalled
the earlier order. Alleging that the offence which led to issuance of
the order dated 30.6.2012 constituted ingredients contained under
Section 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section
120-B IPC and Section 149 IPC and Section 8, 13(1)(c), 13(1)(d),
13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption
Act, a private complaint was preferred under Section 200 Cr.P.C. On
receipt of the complaint, the Special Judge passed an order on
20.10.2012 which reads as follows :-
“On going through the complaint, documents and hearing the
complainant, I am of the sincere view that the matter requires
to be referred for investigation by the Deputy Superintendent of
Police, Karnataka Lokayukta, Bangalore Urban, under Section
156(3) of Cr.P.C. Accordingly, I answer point No.1 in the
affirmative.
Point No.2 : In view of my finding on point No.1 and for
the foregoing reasons, I proceed to pass the following :
ORDER
The complaint is referred to Deputy Superintendent of
Police – 3 Karnataka Lokayukta, Bangalore Urban under Section
156(3) of Cr.PC for investigation and to report.”
4. Aggrieved by the said order, the first respondent herein
approached the High Court of Karnataka by filing Writ Petition
Nos.13779-13780 of 2013. It was contended before the High Court that
since the appellant is a pubic servant, a complaint brought against
him without being accompanied by a valid sanction order could not have
been entertained by the Special Court on the allegations of offences
punishable under the Prevention of Corruption Act. It was submitted
that even though the power to order investigation under Section 156(3)
can be exercised by a Magistrate or the Special Judge at pre-
cognizance stage, yet, the governmental sanction cannot be dispensed
with. It was also contended that the requirement of a sanction is the
pre-requisite even to present a private complaint in respect of a
public servant concerning the alleged offence said to have been
committed in discharge of his public duty.
5. The High Court, after hearing the parties, took the view that
the Special Judge could not have taken notice of the private complaint
unless the same was accompanied by a sanction order, irrespective of
whether the Court was acting at a pre-cognizance stage or the post-
cognizance stage, if the complaint pertains to a public servant who is
alleged to have committed offences in discharge of his official
duties. The High Court, therefore, quashed the order passed by the
Special Judge, as well as the complaint filed against the appellant.
Aggrieved by the same, as already stated, the complainants have come
up with these appeals.
6. We have heard the senior counsel on either side. Shri Kailash
Vasdev, learned senior counsel appearing for the appellants, submitted
that if the interpretation of the High Court is accepted, then the
provisions of Section 19(3) of the PC Act would be rendered otiose.
Learned senior counsel also submitted that, going through the above
mentioned provision, the requirement of sanction under Section 19(1)
is only procedural in nature and the same can be cured at a subsequent
stage of the proceedings even after filing of the charge-sheet and
hence the requirement of “previous sanction” is merely directory and
not mandatory. Reliance was placed on the judgments of this Court in
R. S. Nayak v. A.R. Antulay (1984) 2 SCR 495 and P. V. Narasimha Rao
v. State (CBI/SPE) (1998) 4 SCC 626. Learned senior counsel further
submitted that the High Court also committed an error in holding that
the sanction was necessary even while the Court was exercising its
jurisdiction under Section 156(3) Cr.P.C. Learned senior counsel
submitted that the order directing investigation under Section 156(3)
Cr.P.C. would not amount to taking cognizance of the offence.
Reference was made to the judgments of this Court in Tula Ram and
Others v. Kishore Singh (1977) 4 SCC 459 and Srinivas Gundluri and
Others v. SEPCO Electric Power Construction Corporation and Others
(2010) 8 SCC 206.
7. Shri Uday U. Lalit, learned senior counsel appearing for the
respondents, on the other hand, submitted that the question raised in
this case is no more res integra. Reference was made to the
judgment of this Court in Subramanium Swamy v. Manmohan Singh and
another (2012) 3 SCC 64. Learned senior counsel submitted that the
question of sanction is of paramount importance for protecting a
public servant who has acted in good faith while performing his
duties. The purpose of obtaining sanction is to see that the public
servant be not unnecessarily harassed on a complaint, failing which it
would not be possible for a public servant to discharge his duties
without fear and favour. Learned senior counsel also placed reliance
on the judgment of this Court in Maksud Saiyed v. State of Gujarat and
Others (2008) 5 SCC 668 and submitted that the requirement of
application of mind by the Magistrate before exercising jurisdiction
under Section 156(3) Cr.P.C. is of paramount importance. Learned
senior counsel submitted that the requirement of sanction is a
prerequisite even for presenting a private complaint under Section 200
Cr.P.C. and the High Court has rightly quashed the proceedings and the
complaint made against the respondents.
8. We may first examine whether the Magistrate, while exercising
his powers under Section 156(3) Cr.P.C., could act in a mechanical or
casual manner and go on with the complaint after getting the report.
The scope of the above mentioned provision came up for consideration
before this Court in several cases. This Court in Maksud Saiyed case
(supra) examined the requirement of the application of mind by the
Magistrate before exercising jurisdiction under Section 156(3) and
held that where a jurisdiction is exercised on a complaint filed in
terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is
required to apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section 156(3) against
a public servant without a valid sanction order. The application of
mind by the Magistrate should be reflected in the order. The mere
statement that he has gone through the complaint, documents and heard
the complainant, as such, as reflected in the order, will not be
sufficient. After going through the complaint, documents and hearing
the complainant, what weighed with the Magistrate to order
investigation under Section 156(3) Cr.P.C., should be reflected in the
order, though a detailed expression of his views is neither required
nor warranted. We have already extracted the order passed by the
learned Special Judge which, in our view, has stated no reasons for
ordering investigation.
9. We will now examine whether the order directing investigation
under Section 156(3) Cr.P.C. would amount to taking cognizance of the
offence, since a contention was raised that the expression
“cognizance” appearing in Section 19(1) of the PC Act will have to be
construed as post-cognizance stage, not pre-cognizance stage and,
therefore, the requirement of sanction does not arise prior to taking
cognizance of the offences punishable under the provisions of the PC
Act. The expression “cognizance” which appears in Section 197 Cr.P.C.
came up for consideration before a three-Judge Bench of this Court in
State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, and this
Court expressed the following view:
“6. ………….And the jurisdiction of a Magistrate to take
cognizance of any offence is provided by Section 190 of the
Code, either on receipt of a complaint, or upon a police report
or upon information received from any person other than a police
officer, or upon his knowledge that such offence has been
committed. So far as public servants are concerned, the
cognizance of any offence, by any court, is barred by Section
197 of the Code unless sanction is obtained from the appropriate
authority, if the offence, alleged to have been committed, was
in discharge of the official duty. The section not only
specifies the persons to whom the protection is afforded but it
also specifies the conditions and circumstances in which it
shall be available and the effect in law if the conditions are
satisfied. The mandatory character of the protection afforded to
a public servant is brought out by the expression, ‘no court
shall take cognizance of such offence except with the previous
sanction’. Use of the words ‘no’ and ‘shall’ makes it abundantly
clear that the bar on the exercise of power of the court to take
cognizance of any offence is absolute and complete. The very
cognizance is barred. That is, the complaint cannot be taken
notice of. According to Black’s Law Dictionary the word
‘cognizance’ means ‘jurisdiction’ or ‘the exercise of
jurisdiction’ or ‘power to try and determine causes’. In common
parlance, it means taking notice of. A court, therefore, is
precluded from entertaining a complaint or taking notice of it
or exercising jurisdiction if it is in respect of a public
servant who is accused of an offence alleged to have been
committed during discharge of his official duty.
xxx xxx xxx
xxx xxx xxx”

 
In State of West Bengal and Another v. Mohd. Khalid and Others (1995)
1 SCC 684, this Court has observed as follows:
“It is necessary to mention here that taking cognizance of an
offence is not the same thing as issuance of process. Cognizance
is taken at the initial stage when the Magistrate applies his
judicial mind to the facts mentioned in a complaint or to a
police report or upon information received from any other person
that an offence has been committed. The issuance of process is
at a subsequent stage when after considering the material placed
before it the court decides to proceed against the offenders
against whom a prima facie case is made out.”
10. The meaning of the said expression was also considered by this
Court in Subramanium Swamy case (supra). The judgments referred to
herein above clearly indicate that the word “cognizance” has a wider
connotation and not merely confined to the stage of taking cognizance
of the offence. When a Special Judge refers a complaint for
investigation under Section 156(3) Cr.P.C., obviously, he has not
taken cognizance of the offence and, therefore, it is a pre-cognizance
stage and cannot be equated with post-cognizance stage. When a
Special Judge takes cognizance of the offence on a complaint presented
under Section 200 Cr.P.C. and the next step to be taken is to follow
up under Section 202 Cr.P.C. Consequently, a Special Judge referring
the case for investigation under Section 156(3) is at pre-cognizance
stage.
11. A Special Judge is deemed to be a Magistrate under Section 5(4)
of the PC Act and, therefore, clothed with all the magisterial powers
provided under the Code of Criminal Procedure. When a private
complaint is filed before the Magistrate, he has two options. He may
take cognizance of the offence under Section 190 Cr.P.C. or proceed
further in enquiry or trial. A Magistrate, who is otherwise competent
to take cognizance, without taking cognizance under Section 190, may
direct an investigation under Section 156(3) Cr.P.C. The Magistrate,
who is empowered under Section 190 to take cognizance, alone has the
power to refer a private complaint for police investigation under
Section 156(3) Cr.P.C.
12. We may now examine whether, in the above mentioned legal
situation, the requirement of sanction is a pre-condition for ordering
investigation under Section 156(3) Cr.P.C., even at a pre-cognizance
stage. Section 2(c) of the PC Act deals with the definition of the
expression “public servant” and provides under Clauses (viii) and
(xii) as under:
“(viii) any person who holds an office by virtue of which he
is authorised or required to perform any public duty.
(xii) any person who is an office-bearer or an employee of an
educational, scientific, social, cultural or other institution,
in whatever manner established, receiving or having received any
financial assistance from the Central Government or any State
Government, or local or other public authority.”

 
The relevant provision for sanction is given in Section 19(1) of the
PC Act, which reads as under:
“19. Previous sanction necessary for prosecution.—(1) No
court shall take cognizance of an offence punishable under
Sections 7, 10, 11, 13 and 15 alleged to have been committed by
a public servant, except with the previous sanction—
a) in the case of a person who is employed in connection
with the affairs of the Union and is not removable from
his office save by or with the sanction of the Central
Government, of that Government;
b) in the case of a person who is employed in connection
with the affairs of a State and is not removeable from
his office save by or with the sanction of the State
Government, of that Government;
c) in the case of any other person, of the authority
competent to remove him from his office.”
Section 19(3) of the PC Act also has some relevance; the operative
portion of the same is extracted hereunder:
“Section 19(3) – Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974)-
a) no finding, sentence or order passed by a special judge
shall be reversed or altered by a court in appeal,
confirmation or revision on the ground of absence of, or
any error, omission or irregularity in the sanction
required under sub-section (1), unless in the opinion of
that Court, a failure of justice has in fact been
occasioned thereby;
b) xxx xxx xxx

 

c) xxx xxx xxx”
13. Learned senior counsel appearing for the appellants raised the
contention that the requirement of sanction is only procedural in
nature and hence, directory or else Section 19(3) would be rendered
otiose. We find it difficult to accept that contention. Sub-section
(3) of Section 19 has an object to achieve, which applies in
circumstances where a Special Judge has already rendered a finding,
sentence or order. In such an event, it shall not be reversed or
altered by a court in appeal, confirmation or revision on the ground
of absence of sanction. That does not mean that the requirement to
obtain sanction is not a mandatory requirement. Once it is noticed
that there was no previous sanction, as already indicated in various
judgments referred to hereinabove, the Magistrate cannot order
investigation against a public servant while invoking powers under
Section 156(3) Cr.P.C. The above legal position, as already
indicated, has been clearly spelt out in Paras Nath Singh and
Subramanium Swamy cases (supra).
14. Further, this Court in Criminal Appeal No. 257 of 2011 in the
case of General Officer, Commanding v. CBI and opined as follows:
“Thus, in view of the above, the law on the issue of sanction
can be summarized to the effect that the question of sanction is
of paramount importance for protecting a public servant who has
acted in good faith while performing his duty. In order that
the public servant may not be unnecessarily harassed on a
complaint of an unscrupulous person, it is obligatory on the
part of the executive authority to protect him….. If the law
requires sanction, and the court proceeds against a public
servant without sanction, the public servant has a right to
raise the issue of jurisdiction as the entire action may be
rendered void ab-initio.”

 

15. We are of the view that the principles laid down by this Court
in the above referred judgments squarely apply to the facts of the
present case. We, therefore, find no error in the order passed by the
High Court. The appeals lack merit and are accordingly dismissed.

 
…….……………………….J.
(K.S. Radhakrishnan)

 

 
……………………………J.
(A.K. Sikri)
New Delhi,
October 01, 2013

 

The Supreme Court on held that in the matter (judgment) that it is mandatory for police to register FIR if a complainant approaches it for the registration of a cognizable offence.

The five judge Constitution bench headed by Chief Justice P Sathasivam said that action will be taken against the police officer for his failure to register a First Information Report (FIR) on the complaint of a cognizable offence.

The legislative intent is for compulsory registration of FIR in case of cognizable offence, said Chief Justice Sathasivam, speaking for the bench.

The preliminary investigation has to be completed within 7 days and its purpose is only to find out whether it gives information about a serious offence and not to test the veracity of the complaint, the Supreme Court said.

An apex court further said that the preliminary investigation prior to the registration is permissible in cases relating to disputes in matrimony, corruption, financial dealings and certain other categories.

Cognizable offences are those which attract punishment of three years or more in case of conviction and where an investigating officer can arrest an accused without warrant.

 

——————————————————————————————————————————————————————————————————————————————————————————–
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 68 OF 2008
Lalita Kumari …. Petitioner (s)
Versus
Govt. of U.P. & Ors. …. Respondent(s)
WITH
S.L.P. (Crl.) No. 5986 of 2006
S.L.P. (Crl.) No. 5200 of 2009
CRIMINAL APPEAL No. 1410 OF 2011
CRIMINAL APPEAL No. 1267 OF 2007
AND
CONTEMPT PETITION (C) NO. D26722 OF 2008 IN
WRIT PETITION (CRIMINAL) NO. 68 OF 2008
J U D G M E N T
P.Sathasivam, CJI.
2
1) The important issue which arises for consideration in
the referred matter is whether “a police officer is bound to
register a First Information Report (FIR) upon receiving any
information relating to commission of a cognizable offence
under Section 154 of the Code of Criminal Procedure, 1973
(in short ‘the Code’) or the police officer has the power to
conduct a “preliminary inquiry” in order to test the veracity
of such information before registering the same?”
2) The present writ petition, under Article 32 of the
Constitution, has been filed by one Lalita Kumari (minor)
through her father, viz., Shri Bhola Kamat for the issuance
of a writ of Habeas Corpus or direction(s) of like nature
against the respondents herein for the protection of his
minor daughter who has been kidnapped. The grievance in
the said writ petition is that on 11.05.2008, a written report
was submitted by the petitioner before the officer in-charge
of the police station concerned who did not take any action
on the same. Thereafter, when the Superintendent of Police
was moved, an FIR was registered. According to the
petitioner, even thereafter, steps were not taken either for
apprehending the accused or for the recovery of the minor
3
girl child.
3) A two-Judge Bench of this Court in, Lalita Kumari
vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC
164, after noticing the disparity in registration of FIRs by
police officers on case to case basis across the country,
issued notice to the Union of India, the Chief Secretaries of
all the States and Union Territories and Director Generals of
Police/Commissioners of Police to the effect that if steps are
not taken for registration of FIRs immediately and the
copies thereof are not handed over to the complainants,
they may move the Magistrates concerned by filing
complaint petitions for appropriate direction(s) to the police
to register the case immediately and for apprehending the
accused persons, failing which, contempt proceedings must
be initiated against such delinquent police officers if no
sufficient cause is shown.
4) Pursuant to the above directions, when the matter was
heard by the very same Bench in Lalita Kumari vs.
Government of Uttar Pradesh & Ors. (2008) 14 SCC 337,
Mr. S.B. Upadhyay, learned senior counsel for the
petitioner, projected his claim that upon receipt of
4
information by a police officer in-charge of a police station
disclosing a cognizable offence, it is imperative for him to
register a case under Section 154 of the Code and placed
reliance upon two-Judge Bench decisions of this Court in
State of Haryana vs. Bhajan Lal 1992 Supp. (1) SCC 335,
Ramesh Kumari vs. State (NCT of Delhi) (2006) 2 SCC
677 and Parkash Singh Badal vs. State of Punjab (2007)
1 SCC 1. On the other hand, Mr. Shekhar Naphade,
learned senior counsel for the State of Maharashtra
submitted that an officer in-charge of a police station is not
obliged under law, upon receipt of information disclosing
commission of a cognizable offence, to register a case rather
the discretion lies with him, in appropriate cases, to hold
some sort of preliminary inquiry in relation to the veracity
or otherwise of the accusations made in the report. In
support of his submission, he placed reliance upon two-
Judge Bench decisions of this Court in P. Sirajuddin vs.
State of Madras (1970) 1 SCC 595, Sevi vs. State of
Tamil Nadu 1981 Supp SCC 43, Shashikant vs. Central
Bureau of Investigation (2007) 1 SCC 630, and Rajinder
Singh Katoch vs. Chandigarh Admn. (2007) 10 SCC 69.
5
In view of the conflicting decisions of this Court on the
issue, the said bench, vide order dated 16.09.2008, referred
the same to a larger bench.
5) Ensuing compliance to the above direction, the matter
pertaining to Lalita Kumari was heard by a Bench of three-
Judges in Lalita Kumari vs. Government of Uttar
Pradesh & Ors. (2012) 4 SCC 1 wherein, this Court, after
hearing various counsel representing Union of India, States
and Union Territories and also after adverting to all the
conflicting decisions extensively, referred the matter to a
Constitution Bench while concluding as under:-
“97. We have carefully analysed various judgments
delivered by this Court in the last several decades. We clearly
discern divergent judicial opinions of this Court on the main
issue: whether under Section 154 CrPC, a police officer is
bound to register an FIR when a cognizable offence is made
out or he (police officer) has an option, discretion or latitude
of conducting some kind of preliminary inquiry before
registering the FIR.
98. The learned counsel appearing for the Union of India
and different States have expressed totally divergent views
even before this Court. This Court also carved out a special
category in the case of medical doctors in the aforementioned
cases of Santosh Kumar and Suresh Gupta where preliminary
inquiry had been postulated before registering an FIR. Some
counsel also submitted that the CBI Manual also envisages
some kind of preliminary inquiry before registering the FIR.
99. The issue which has arisen for consideration in these
cases is of great public importance. In view of the divergent
opinions in a large number of cases decided by this Court, it
has become extremely important to have a clear enunciation
6
of law and adjudication by a larger Bench of this Court for
the benefit of all concerned—the courts, the investigating
agencies and the citizens.
100. Consequently, we request the Hon’ble the Chief
Justice to refer these matters to a Constitution Bench of at
least five Judges of this Court for an authoritative judgment.”
6) Therefore, the only question before this Constitution
Bench relates to the interpretation of Section 154 of the
Code and incidentally to consider Sections 156 and 157
also.
7) Heard Mr. S.B. Upadhyay, learned senior counsel for
the petitioner, Mr. K.V. Vishwanathan, learned Additional
Solicitor General for the Union of India, Mr. Sidharth
Luthra, learned Additional Solicitor General for the State of
Chhattisgarh, Mr. Shekhar Naphade, Mr. R.K. Dash, Ms.
Vibha Datta Makhija, learned senior counsel for the State of
Maharashtra, U.P. and M.P. respectively, Mr. G.
Sivabalamurugan, learned counsel for the accused, Dr.
Ashok Dhamija, learned counsel for the CBI, Mr. Kalyan
Bandopodhya, learned senior counsel for the State of West
Bengal, Dr. Manish Singhvi, learned AAG for the State of
Rajasthan and Mr. Sudarshan Singh Rawat.
8) In order to answer the main issue posed before this
7
Bench, it is useful to refer the following Sections of the
Code:-
“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 subsection
(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 subsection (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.
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.
8
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.
Provided further that in relation to an offence of rape, the
recording of statement of the victim shall be conducted at
the residence of the victim or in the place of her choice
and as far as practicable by a woman police officer in the
presence of her parents or guardian or near relatives or
social worker of the locality.
(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 of 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.”
Contentions:
9) At the foremost, Mr. S.B. Upadhyay, learned senior
counsel, while explaining the conditions mentioned in
9
Section 154 submitted that Section 154(1) is mandatory as
the use of the word ‘shall’ is indicative of the statutory
intent of the legislature. He also contended that there is no
discretion left to the police officer except to register an FIR.
In support of the above proposition, he relied on the
following decisions, viz., B. Premanand and Ors. vs.
Mohan Koikal and Others (2011) 4 SCC 266, M/s Hiralal
Rattanlal Etc. Etc. vs. State of U.P. and Anr. Etc. Etc.
(1973) 1 SCC 216 and Govindlal Chhaganlal Patel vs.
Agricultural Produce Market Committee, Godhra and
Ors. (1975) 2 SCC 482.
10) Mr. Upadhyay, by further drawing our attention to the
language used in Section 154(1) of the Code, contended that
it merely mentions ‘information’ without prefixing the words
‘reasonable’ or ‘credible’. In order to substantiate this
claim, he relied on the following decisions, viz., Bhajan Lal
(supra), Ganesh Bhavan Patel and Another vs. State of
Maharashtra (1978) 4 SCC 371, Aleque Padamsee and
Others vs. Union of India and Others (2007) 6 SCC 171,
Ramesh Kumari (supra), Ram Lal Narang vs. State
(Delhi Administration) (1979) 2 SCC 322 and Lallan
10
Chaudhary and Others vs. State of Bihar and Another
(2006) 12 SCC 229. Besides, he also brought to light various
adverse impacts of allowing police officers to hold
preliminary inquiry before registering an FIR.
11) Mr. K.V. Viswanathan, learned Additional Solicitor
General appearing on behalf of Union of India submitted
that in all the cases where information is received under
Section 154 of the Code, it is mandatory for the police to
forthwith enter the same into the register maintained for the
said purpose, if the same relates to commission of a
cognizable offence. According to learned ASG, the police
authorities have no discretion or authority, whatsoever, to
ascertain the veracity of such information before deciding to
register it. He also pointed out that a police officer, who
proceeds to the spot under Sections 156 and 157 of the
Code, on the basis of either a cryptic information or source
information, or a rumour etc., has to immediately, on
gathering information relating to the commission of a
cognizable offence, send a report (ruqqa) to the police
station so that the same can be registered as FIR. He also
highlighted the scheme of the Code relating to the
11
registration of FIR, arrest, various protections provided to
the accused and the power of police to close investigation.
In support of his claim, he relied on various decisions of this
Court viz., Bhajan Lal (supra), Ramesh Kumari (supra)
and Aleque Padamsee (supra). He also deliberated upon
the distinguishable judgments in conflict with the
mandatory proposition, viz., State of Uttar Pradesh vs.
Bhagwant Kishore Joshi (1964) 3 SCR 71, P. Sirajuddin
(supra), Sevi (supra), Shashikant (supra), Rajinder Singh
Katoch (supra), Jacob Mathew vs. State of Punjab &
Anr. (2005) 6 SCC 1. He concluded his arguments by
saying that if any information disclosing a cognizable
offence is led 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. Further,
he emphasized upon various safeguards provided under the
Code against filing a false case.
12) Dr. Ashok Dhamija, learned counsel for the CBI,
submitted that the use of the word “shall” under Section
12
154(1) of the Code clearly mandates that if the information
given to a police officer relates to the commission of a
cognizable offence, then it is mandatory for him to register
the offence. According to learned counsel, in such
circumstances, there is no option or discretion given to the
police. He further contended that the word “shall” clearly
implies a mandate and is unmistakably indicative of the
statutory intent. What is necessary, according to him, is
only that the information given to the police must disclose
commission of a cognizable offence. He also contended that
Section 154 of the Code uses the word “information”
simpliciter and does not use the qualified words such as
“credible information” or “reasonable complaint”. Thus, the
intention of the Parliament is unequivocally clear from the
language employed that a mere information relating to
commission of a cognizable offence is sufficient to register
an FIR. He also relied on Bhajan Lal (supra), Ramesh
Kumari (supra), Aleque Padamsee (supra), Lallan
Chaudhary (supra), Superintendent of Police, CBI vs.
Tapan Kumar Singh (2003) 6 SCC 175, M/s Hiralal
Rattanlal (supra), B. Premanand (supra), Khub Chand
13
vs. State of Rajasthan AIR 1967 SC 1074, P. Sirajuddin
(supra), Rajinder Singh Katoch (supra), Bhagwant
Kishore Joshi (supra), State of West Bengal vs.
Committee for Protection of Democratic Rights, West
Bengal (2010) 3 SCC 571. He also pointed out various
safeguards provided in the Code against filing a false case.
In the end, he concluded by reiterating that the registration
of FIR is mandatory under Section 154 of the Code, if the
information discloses commission of a cognizable offence
and no preliminary inquiry is permissible in such a
situation. Further, he also clarified that the preliminary
inquiry conducted by the CBI, under certain situations, as
provided under the CBI Crime Manual, stands on a different
footing due to the special provisions relating to the CBI
contained in the Delhi Special Police Establishment Act,
1946, which is saved under Sections 4(2) and 5 of the Code.
13) Mr. Kalyan Bandopadhyay, learned senior counsel
appearing on behalf of the State of West Bengal, submitted
that whenever any information relating to commission of a
cognizable offence is received, it is the duty of the officer incharge
of a police station to record the same and a copy of
14
such information, shall be given forthwith, free of cost, to
the informant under Section 154(2) of the Code. According
to him, a police officer has no other alternative but to record
the information in relation to a cognizable offence in the
first instance. He also highlighted various subsequent steps
to be followed by the police officer pursuant to the
registration of an FIR. With regard to the scope of Section
154 of the Code, he relied on H.N. Rishbud and Inder
Singh vs. State of Delhi AIR 1955 SC 196, Bhajan Lal
(supra), S.N. Sharma vs. Bipen Kumar Tiwari (1970) 1
SCC 653, Union of India vs. Prakash P. Hinduja (2003) 6
SCC 195, Sheikh Hasib alias Tabarak vs. State of Bihar
(1972) 4 SCC 773, Shashikant (supra), Ashok Kumar
Todi vs. Kishwar Jahan and Others (2011) 3 SCC 758,
Padma Sundara Rao (Dead) and Others vs. State of T.N.
and Others (2002) 3 SCC 533, P. Sirajuddin (supra),
Rajinder Singh Katoch (supra), Bhagwant Kishore Joshi
(supra) and Mannalal Khatic vs. The State AIR 1967 Cal
478.
14) Dr. Manish Singhvi, learned Additional Advocate
General for the State of Rajasthan, submitted that Section
15
154(1) of the Code mandates compulsory registration of FIR.
He also highlighted various safeguards inbuilt in the Code
for lodging of false FIRs. He also pointed out that the only
exception relates to cases arising under the Prevention of
Corruption Act as, in those cases, sanction is necessary
before taking cognizance by the Magistrates and the public
servants are accorded some kind of protection so that
vexatious cases cannot be filed to harass them.
15) Mr. G. Sivabalamurugan, learned counsel for the
appellant in Criminal Appeal No. 1410 of 2011, after tracing
the earlier history, viz., the relevant provisions in the Code
of Criminal Procedure of 1861, 1872, 1882 and 1898
stressed as to why the compulsory registration of FIR is
mandatory. He also highlighted the recommendations of
the Report of the 41st Law Commission and insertion of
Section 13 of the Criminal Law (Amendment) Act, 2013 with
effect from 03.02.2013.
16) Mr. R.K. Dash, learned senior counsel appearing for
the State of Uttar Pradesh, though initially commenced his
arguments by asserting that in order to check unnecessary
harassment to innocent persons at the behest of
16
unscrupulous complainants, it is desirable that a
preliminary inquiry into the allegations should precede with
the registration of FIR but subsequently after considering
the salient features of the Code, various provisions like
Sections 2(4) (h), 156(1), 202(1), 164, various provisions
from the U.P. Police Regulations, learned senior counsel
contended that in no case recording of FIR should be
deferred till verification of its truth or otherwise in case of
information relating to a cognizable offence. In addition to
the same, he also relied on various pronouncements of this
Court, such as, Mohindro vs. State of Punjab (2001) 9
SCC 581, Ramesh Kumari (supra), Bhajan Lal (supra),
Parkash Singh Badal (supra), Munna Lal vs. State of
Himachal Pradesh 1992 Crl. L.J. 1558, Giridhari Lal
Kanak vs. State and others 2002 Crl. L.J. 2113 and
Katteri Moideen Kutty Haji vs. State of Kerala 2002 (2)
Crimes 143. Finally, he concluded that when the statutory
provisions, as envisaged in Chapter XII of the Code, are
clear and unambiguous, it would not be legally permissible
to allow the police to make a preliminary inquiry into the
allegations before registering an FIR under Section 154 of
17
the Code.
17) Mr. Sidharth Luthra, learned Additional Solicitor
General appearing for the State of Chhattisgarh,
commenced his arguments by emphasizing the scope of
reference before the Constitution Bench. Subsequently, he
elaborated on various judgments which held that an
investigating officer, on receiving information of commission
of a cognizable offence under Section 154 of the Code, has
power to conduct preliminary inquiry before registration of
FIR, viz., Bhagwant Kishore Joshi (supra), P. Sirajuddin
(supra), Sevi (supra) and Rajinder Singh Katoch (supra).
Concurrently, he also brought to our notice the following
decisions, viz., Bhajan Lal (supra), Ramesh Kumari
(supra), Parkash Singh Badal (supra), and Aleque
Padamsee (supra), which held that a police officer is duty
bound to register an FIR, upon receipt of information
disclosing commission of a cognizable offence and the power
of preliminary inquiry does not exist under the mandate of
Section 154. Learned ASG has put forth a comparative
analysis of Section 154 of the Code of Criminal Procedure of
1898 and of 1973. He also highlighted that every activity
18
which occurs in a police station [Section 2(s)] is entered in a
diary maintained at the police station which may be called
as the General Diary, Station Diary or Daily Diary. He
underlined the relevance of General Diary by referring to
various judicial decisions such as Tapan Kumar Singh
(supra), Re: Subbaratnam & Ors. AIR 1949 Madras 663.
He further pointed out that, presently, throughout the
country, in matrimonial, commercial, medical negligence
and corruption related offences, there exist provisions for
conducting an inquiry or preliminary inquiry by the police,
without/before registering an FIR under Section 154 of the
Code. He also brought to our notice various police rules
prevailing in the States of Punjab, Rajasthan, U.P., Madhya
Pradesh, Kolkata, Bombay, etc., for conducting an inquiry
before registering an FIR. Besides, he also attempted to
draw an inference from the Crime Manual of the CBI to
highlight that a preliminary inquiry before registering a case
is permissible and legitimate in the eyes of law. Adverting to
the above contentions, he concluded by pleading that
preliminary inquiry before registration of an FIR should be
held permissible. Further, he emphasized that the power to
19
carry out an inquiry or preliminary inquiry by the police,
which precedes the registration of FIR will eliminate the
misuse of the process, as the registration of FIR serves as
an impediment against a person for various important
activities like applying for a job or a passport, etc. Learned
ASG further requested this Court to frame guidelines for
certain category of cases in which preliminary inquiry
should be made.
18) Mr. Shekhar Naphade, learned senior counsel
appearing on behalf of the State of Maharashtra, submitted
that ordinarily the Station House Officer (SHO) should
record an FIR upon receiving a complaint disclosing the
ingredients of a cognizable offence, but in certain situations,
in case of doubt about the correctness or credibility of the
information, he should have the discretion of holding a
preliminary inquiry and thereafter, if he is satisfied that
there is a prima facie case for investigation, register the FIR.
A mandatory duty of registering FIR should not be cast
upon him. According to him, this interpretation would
harmonize two extreme positions, viz., the proposition that
the moment the complaint disclosing ingredients of a
20
cognizable offence is lodged, the police officer must register
an FIR without any scrutiny whatsoever is an extreme
proposition and is contrary to the mandate of Article 21 of
the Constitution of India, similarly, the other extreme point
of view is that the police officer must investigate the case
substantially before registering an FIR. Accordingly, he
pointed out that both must be rejected and a middle path
must be chosen. He also submitted the following
judgments, viz., Bhajan Lal (supra), Ramesh Kumari
(supra), Parkash Singh Badal (supra), and Aleque
Padamsee (supra) wherein it has been held that if a
complaint alleging commission of a cognizable offence is
received in the police station, then the SHO has no other
option but to register an FIR under Section 154 of the Code.
According to learned senior counsel, these verdicts require
reconsideration as they have interpreted Section 154 de
hors the other provisions of the Code and have failed to
consider the impact of Article 21 on Section 154 of the
Code.
19) Alongside, he pointed out the following decisions, viz.,
Rajinder Singh Katoch (supra), P. Sirajuddin (supra),
21
Bhagwant Kishore Joshi (supra) and Sevi (supra), which
hold that before registering an FIR under Section 154 of the
Code, it is open to the police officer to hold a preliminary
inquiry to ascertain whether there is a prima facie case of
commission of a cognizable offence or not. According to
learned senior counsel, Section 154 of the Code forms part
of a chain of statutory provisions relating to investigation
and, therefore, the scheme of provisions of Sections 41, 157,
167, 169, etc., must have a bearing on the interpretation of
Section 154. In addition, he emphasized that giving a literal
interpretation would reduce the registration of FIR to a
mechanical act. Parallelly, he underscored the impact of
Article 21 on Section 154 of the Code by referring to
Maneka Gandhi vs. Union of India (1978) 1 SCC 248,
wherein this Court has applied Article 21 to several
provisions relating to criminal law. This Court has also
stated that the expression “law” contained in Article 21
necessarily postulates law which is reasonable and not
merely statutory provisions irrespective of its
reasonableness or otherwise. Learned senior counsel
pleaded that in the light of Article 21, provisions of Section
22
154 of the Code must be read down to mean that before
registering an FIR, the police officer must be satisfied that
there is a prima facie case for investigation. He also
emphasized that Section 154 contains implied power of the
police officer to hold preliminary inquiry if he bona fide
possess serious doubts about the credibility of the
information given to him. By pointing out Criminal Law
(Amendment) Act, 2013, particularly, Section 166A, Mr.
Naphade contended that as far as other cognizable offences
(apart from those mentioned in Section 166A) are
concerned, police has a discretion to hold preliminary
inquiry if there is some doubt about the correctness of the
information.
20) In case of allegations relating to medical negligence on
the part of the doctors, it is pointed out by drawing our
attention to some of the decisions of this Court viz., Tapan
Kumar Singh (supra), Jacob Mathew (supra) etc., that no
medical professional should be prosecuted merely on the
basis of the allegations in the complaint. By pointing out
various decisions, Mr. Naphade emphasized that in
appropriate cases, it would be proper for a police officer, on
23
receipt of a complaint of a cognizable offence, to satisfy
himself that at least prima facie allegations levelled against
the accused in the complaint are credible. He also
contended that no single provision of a statute can be read
and interpreted in isolation, but the statute must be read as
a whole. Accordingly, he prayed that the provisions of
Sections 41, 57, 156, 157, 159, 167, 190, 200 and 202 of
the Code must be read together. He also pointed out that
Section 154(3) of the Code enables any complainant whose
complaint is not registered as an FIR by the officer in-charge
of the police station to approach the higher police officer for
the purpose of getting his complaint registered as an FIR
and in such a case, the higher police officer has all the
powers of recording an FIR and directing investigation into
the matter. In addition to the remedy available to an
aggrieved person of approaching higher police officer, he can
also move the concerned Magistrate by making a complaint
under Section 190 thereof. He further emphasized that the
fact that the legislature has provided adequate remedies
against refusal to register FIR and to hold investigation in
cognizable offences, is indicative of legislative intent that the
24
police officer is not bound to record FIR merely because the
ingredients of a cognizable offence are disclosed in the
complaint, if he has doubts about the veracity of the
complaint. He also pointed out that the word “shall” used
in the statute does not always mean absence of any
discretion in the matter. For the said proposition, he also
highlighted that this Court has preferred the rule of
purposive interpretation to the rule of literal interpretation
for which he relied on Chairman Board of Mining
Examination and Chief Inspector of Mines and Another
vs. Ramjee (1977) 2 SCC 256, Lalit Mohan Pandey vs.
Pooran Singh (2004) 6 SCC 626, Prativa Bose vs. Kumar
Rupendra Deb Raikat (1964) 4 SCR 69. He further
pointed out that it is impossible to put the provisions of
Section 154 of the Code in a straightjacket formula. He also
prayed for framing of some guidelines as regards
registration or non-registration of FIR. Finally, he pointed
out that the requirement of Article 21 is that the procedure
should be fair and just. According to him, if the police
officer has doubts in the matter, it is imperative that he
should have the discretion of holding a preliminary inquiry
25
in the matter. If he is debarred from holding such a
preliminary inquiry, the procedure would then suffer from
the vice of arbitrariness and unreasonableness. Thus, he
concluded his arguments by pleading that Section 154 of
the Code must be interpreted in the light of Article 21.
21) Ms. Vibha Datta Makhija, learned senior counsel
appearing for the State of Madhya Pradesh submitted that a
plain reading of Section 154 and other provisions of the
Code shows that it may not be mandatory but is absolutely
obligatory on the part of the police officer to register an FIR
prior to taking any steps or conducting investigation into a
cognizable offence. She further pointed out that after
receiving the first information of an offence and prior to the
registration of the said report (whether oral or written) in
the First Information Book maintained at the police station
under various State Government regulations, only some
preliminary inquiry or investigative steps are permissible
under the statutory framework of the Code to the extent as
is justifiable and is within the window of statutory
discretion granted strictly for the purpose of ascertaining
whether there has been a commission or not of a cognizable
26
offence. Hence, an investigation, culminating into a Final
Report under Section 173 of the Code, cannot be called into
question and be quashed due to the reason that a part of
the inquiry, investigation or steps taken during investigation
are conducted after receiving the first information but prior
to registering the same unless it is found that the said
investigation is unfair, illegal, mala fide and has resulted in
grave prejudice to the right of the accused to fair
investigation. In support of the above contentions, she
traced the earlier provisions of the Code and current
statutory framework, viz., Criminal Law (Amendment) Act,
2013 with reference to various decisions of this Court. She
concluded that Section 154 of the Code leaves no area of
doubt that where a cognizable offence is disclosed, there is
no discretion on the part of the police to record or not to
record the said information, however, it may differ from case
to case.
22) The issues before the Constitution Bench of this Court
arise out of two main conflicting areas of concern, viz.,
(i) Whether the immediate non-registration of FIR leads to
scope for manipulation by the police which affects the
27
right of the victim/complainant to have a complaint
immediately investigated upon allegations being made;
and
(ii) Whether in cases where the complaint/information
does not clearly disclose the commission of a
cognizable offence but the FIR is compulsorily
registered then does it infringe the rights of an
accused.
Discussion:
23) The FIR is a pertinent document in the criminal law
procedure of our country and its main object from the point
of view of the informant is to set the criminal law in motion
and from the point of view of the investigating authorities is
to obtain information about the alleged criminal activity so
as to be able to take suitable steps to trace and to bring to
book the guilty.
24) Historical experience has thrown up cases from both
the sides where the grievance of the victim/informant of
non-registration of valid FIRs as well as that of the accused
of being unnecessarily harassed and investigated upon false
28
charges have been found to be correct.
25) An example of the first category of cases is found in
State of Maharashtra vs. Sarangdharsingh
Shivdassingh Chavan & Anr. (2011) 1 SCC 577 wherein
a writ petition was filed challenging the order of the
Collector in the District of Buldhana directing not to register
any crime against Mr. Gokulchand Sananda, without
obtaining clearance from the District Anti-Money Lending
Committee and the District Government Pleader. From the
record, it was revealed that out of 74 cases, only in seven
cases, charge sheets were filed alleging illegal moneylending.
This Court found that upon instructions given by the Chief
Minister to the District Collector, there was no registration
of FIR of the poor farmers. In these circumstances, this
Court held the said instructions to be ultra vires and
quashed the same. It is argued that cases like above exhibit
the mandatory character of Section 154, and if it is held
otherwise, it shall lead to grave injustice.
26) In Aleque Padamsee (supra), while dealing with the
issue whether it is within the powers of courts to issue a
writ directing the police to register a First Information
29
Report in a case where it was alleged that the accused had
made speeches likely to disturb communal harmony, this
Court held that “the police officials ought to register the FIR
whenever facts brought to their notice show that a
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 Section 190 read with Section 200 of the Code.” As
such, the Code itself provides several checks for refusal on
the part of the police authorities under Section 154 of the
Code.
27) However, on the other hand, there are a number of
cases which exhibit that there are instances where the
power of the police to register an FIR and initiate an
investigation thereto are misused where a cognizable offence
is not made out from the contents of the complaint. A
significant case in this context is the case of Preeti Gupta
vs. State of Jharkhand (2010) 7 SCC 667 wherein this
Court has expressed its anxiety over misuse of Section 498-
A of the Indian Penal Code, 1860 (in short ‘the IPC’) with
respect to which a large number of frivolous reports were
lodged. This Court expressed its desire that the legislature
30
must take into consideration the informed public opinion
and the pragmatic realities to make necessary changes in
law.
28) The abovesaid judgment resulted in the 243rd Report of
the Law Commission of India submitted on 30th August,
2012. The Law Commission, in its Report, concluded that
though the offence under Section 498-A could be made
compoundable, however, the extent of misuse was not
established by empirical data, and, thus, could not be a
ground to denude the provision of its efficacy. The Law
Commission also observed that the law on the question
whether the registration of FIR could be postponed for a
reasonable time is in a state of uncertainty and can be
crystallized only upon this Court putting at rest the present
controversy.
29) In order to arrive at a conclusion in the light of
divergent views on the point and also to answer the above
contentions, it is pertinent to have a look at the historical
background of the Section and corresponding provisions
that existed in the previous enactments of the Code of
Criminal Procedure.
31
Code of Criminal Procedure, 1861
“139. Every complaint or information preferred to an
officer in charge of a police station, shall be reduced into
writing and the substance thereof shall be entered in a
diary to be kept by such officer, in such form as shall be
prescribed by the local government.”
Code of Criminal Procedure, 1872
“112. Every complaint preferred to an officer in charge of
a police station, shall be reduced into writing, and shall
be signed, sealed or marked by the person making it; and
the substance thereof shall be entered in a book to be
kept by such officer in the form prescribed by the local
government.”
Code of Criminal Procedure, 1882
“154. 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 form as the
government may prescribe in this behalf.”
Code of Criminal Procedure, 1898
“154. 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 Government may prescribe in this behalf.”
Code of Criminal Procedure, 1973
32
“154. Information in cognizable cases: 1) Every
information relating to the commission of a cognizable
offence, it 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.
[Provided that if the information is given by the woman
against whom an offence under Sections 326A, 326B,
354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C,
376D, 376E or Section 509 of the Indian Penal Code is
alleged to have been committed or attempted, then such
information shall be recorded by a woman police officer or
any woman officer:-
Provided further that:-
(a) in the event that the person against whom an offence
under Sections 354, 354A, 354B, 354C, 354D, 376, 376A,
376B, 376C, 376D, 376E or Section 509 of the Indian
Penal code is alleged to have been committed or
attempted is temporarily or permanently mentally or
physically disabled then such information shall be
recorded by a police officer, at the residence of the person
seeking to report such offence or at a convenient place of
such person’s choice, in the presence of an interpreter or
a special educator, as the case may be;
(b) the recording of such information shall be
videographed;
(c) the police officer shall get the statement of the
person recorded by a Judicial Magistrate under clause (a)
of sub-Section (5A) of Section 164 as soon as possible.]
(Inserted by Section 13 of ‘The Criminal Law
(Amendment) Act, 2013 w.e.f. 03.02.2013)
(2) A copy of the information as recorded under subsection
(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 subsection (1) may send the
substance of such information, in writing and by post, to
33
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.
A perusal of the above said provisions manifests the
legislative intent in both old codes and the new code for
compulsory registration of FIR in a case of cognizable
offence without conducting any Preliminary Inquiry.
30) The precursor to the present Code of 1973 is the Code
of 1898 wherein substantial changes were made in the
powers and procedure of the police to investigate. The
starting point of the powers of police was changed from the
power of the officer in-charge of a police station to
investigate into a cognizable offence without the order of a
Magistrate, to the reduction of the first information
regarding commission of a cognizable offence, whether
received orally or in writing, into writing and into the book
separately prescribed by the Provincial government for
recording such first information.
31) As such, a significant change that took place by way of
the 1898 Code was with respect to the placement of Section
34
154, i.e., the provision imposing requirement of recording
the first information regarding commission of a cognizable
offence in the special book prior to Section 156, i.e., the
provision empowering the police officer to investigate a
cognizable offence. As such, the objective of such
placement of provisions was clear which was to ensure that
the recording of the first information should be the starting
point of any investigation by the police. In the interest of
expediency of investigation since there was no safeguard of
obtaining permission from the Magistrate to commence an
investigation, the said procedure of recording first
information in their books along with the signature/seal of
the informant, would act as an “extremely valuable
safeguard” against the excessive, mala fide and illegal
exercise of investigative powers by the police.
32) Provisions contained in Chapter XII of the Code deal
with information to the police and their powers to
investigate. The said Chapter sets out the procedure to be
followed during investigation. The objective to be achieved
by the procedure prescribed in the said Chapter is to set the
criminal law in motion and to provide for all procedural
35
safeguards so as to ensure that the investigation is fair and
is not mala fide and there is no scope of tampering with the
evidence collected during the investigation.
33) In addition, Mr. Shekhar Naphade, learned senior
counsel contended that insertion of Section 166A in IPC
indicates that registration of FIR is not compulsory for all
offences other than what is specified in the said Section. By
Criminal Law (Amendment) Act 2013, Section 166A was
inserted in Indian Penal Code which reads as under:-
“Section 166A—Whoever, being a public servant.—
(a) knowingly disobeys any direction of the law which
prohibits him from requiring the attendance at any place
of any person for the purpose of investigation into an
offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person,
any other direction of the law regulating the manner in
which he shall conduct such investigation, or
(c) fails to record any information given to him under subsection
(1) of Section 154 of the Code of Criminal
Procedure, 1973, in relation to cognizable offence
punishable under Section 326A, Section 326B, Section
354, Section 354B, Section 370, Section 370A, Section
376, Section 376A, Section 376B, Section 376C, Section
376D, Section 376E, Section 509 shall be punished with
rigorous imprisonment for a term which shall not be less
than six months but which may extend to two years and
shall also be liable to fine.”
Section 166A(c) lays down that if a public servant (Police
Officer) fails to record any information given to him under
36
Section 154(1) of the Code in relation to cognizable offences
punishable under Sections 326A, 326B, 354, 354B, 370,
370A, 376, 376A 376B, 376C, 376D, 376E or Section 509,
he shall be punished with rigorous imprisonment for a term
which shall not be less than six months but may extend to
two years and shall also be liable to fine. Thus, it is the
stand of learned counsel that this provision clearly indicates
that registration of FIR is imperative and police officer has
no discretion in the matter in respect of offences specified in
the said section. Therefore, according to him, the legislature
accepts that as far as other cognizable offences are
concerned, police has discretion to hold a preliminary
inquiry if there is doubt about the correctness of the
information.
34) Although, the argument is as persuasive as it appears,
yet, we doubt whether such a presumption can be drawn in
contravention to the unambiguous words employed in the
said provision. Hence, insertion of Section 166A in the IPC
vide Criminal Law (Amendment) Act 2013, must be read in
consonance with the provision and not contrary to it. The
insertion of Section 166A was in the light of recent
37
unfortunate occurrence of offences against women. The
intention of the legislature in putting forth this amendment
was to tighten the already existing provisions to provide
enhanced safeguards to women. Therefore, the legislature,
after noticing the increasing crimes against women in our
country, thought it appropriate to expressly punish the
police officers for their failure to register FIRs in these cases.
No other meaning than this can be assigned to for the
insertion of the same.
35) With this background, let us discuss the submissions
in the light of various decisions both in favour and against
the referred issue.
Interpretation of Section 154:
36) It may be mentioned in this connection that the first
and foremost principle of interpretation of a statute in every
system of interpretation is the literal rule of interpretation.
All that we have to see at the very outset is what does the
provision say? As a result, the language employed in
Section 154 is the determinative factor of the legislative
intent. A plain reading of Section 154(1) of the Code
38
provides that any information relating to the commission of
a cognizable offence if given orally to an officer-in-charge of
a police station shall be reduced into writing by him or
under his direction. There is no ambiguity in the language
of Section 154(1) of the Code.
37) At this juncture, it is apposite to refer to the following
observations of this Court in M/s Hiralal Rattanlal (supra)
which are as under:
“22…In construing a statutory provision, the first and
the foremost rule of construction is the literary
construction. All that we have to see at the very outset is
what does that provision say? If the provision is
unambiguous and if from that provision, the legislative
intent is clear, we need not call into aid the other rules of
construction of statutes. The other rules of construction
of statutes are called into aid only when the legislative
intention is not clear…”
The above decision was followed by this Court in B.
Premanand (supra) and after referring the abovesaid
observations in the case of Hiralal Rattanlal (supra), this
Court observed as under:
“9. It may be mentioned in this connection that the
first and foremost principle of interpretation of a statute
in every system of interpretation is the literal rule of
interpretation. The other rules of interpretation e.g. the
mischief rule, purposive interpretation, etc. can only be
resorted to when the plain words of a statute are
ambiguous or lead to no intelligible results or if read
literally would nullify the very object of the statute. Where
the words of a statute are absolutely clear and
39
unambiguous, recourse cannot be had to the principles of
interpretation other than the literal rule, vide Swedish
Match AB v. SEBI (2004) 11 SCC 641.
The language of Section 154(1), therefore, admits of no
other construction but the literal construction.
38) The legislative intent of Section 154 is vividly
elaborated in Bhajan Lal (supra) which is as under:-
“30. The legal mandate enshrined in Section 154(1) is
that every information relating to the commission of a
“cognizable offence” (as defined Under Section 2(c) of the
Code) if given orally (in which case it is to be reduced into
writing) or in writing to “an officer incharge 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.
31. 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 Section 154(1)
of the Code, the concerned police officer cannot embark
upon an inquiry 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 the investigation if he has
reason 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. (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 ensuing 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 in
40
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 and 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.
32. Be it 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 nonqualification
of the word “information” in Section 154(1)
unlike in Section 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 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. 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 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 1898
which word is now used in Sections 154, 155, 157 and
190(c) of the present Code of 1973 (Act 2 of 1974). An
overall 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 information and
that information must disclose a cognizable offence.
41
33. 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.
39) Consequently, the condition that is sine qua non for
recording an FIR under Section 154 of the Code is that
there must be information and that information must
disclose a cognizable offence. If any information disclosing
a cognizable offence is led before an officer in charge of the
police station satisfying the requirement of Section 154(1),
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
provision of Section 154 of the Code is mandatory and the
concerned officer is duty bound to register the case on the
basis of information disclosing a cognizable offence. Thus,
the plain words of Section 154(1) of the Code have to be
given their literal meaning.
‘Shall’
40) The use of the word “shall” in Section 154(1) of the
Code clearly shows the legislative intent that it is mandatory
42
to register an FIR if the information given to the police
discloses the commission of a cognizable offence.
41) In Khub Chand (supra), this Court observed as under:
“7…The term “shall” in its ordinary significance is
mandatory and the court shall ordinarily give that
interpretation to that term unless such an interpretation
leads to some absurd or inconvenient consequence or be
at variance with the intent of the legislature, to be
collected from other parts of the Act. The construction of
the said expression depends on the provisions of a
particular Act, the setting in which the expression
appears, the object for which the direction is given, the
consequences that would flow from the infringement of
the direction and such other considerations…”
42) It is relevant to mention that the object of using the
word “shall” in the context of Section 154(1) of the Code is
to ensure that all information relating to all cognizable
offences is promptly registered by the police and
investigated in accordance with the provisions of law.
43) Investigation of offences and prosecution of offenders
are the duties of the State. For “cognizable offences”, a duty
has been cast upon the police to register FIR and to conduct
investigation except as otherwise permitted specifically
under Section 157 of the Code. If a discretion, option or
latitude is allowed to the police in the matter of registration
43
of FIRs, it can have serious consequences on the public
order situation and can also adversely affect the rights of
the victims including violating their fundamental right to
equality.
44) Therefore, the context in which the word “shall”
appears in Section 154(1) of the Code, the object for which it
has been used and the consequences that will follow from
the infringement of the direction to register FIRs, all these
factors clearly show that the word “shall” used in Section
154(1) needs to be given its ordinary meaning of being of
“mandatory” character. The provisions of Section 154(1) of
the Code, read in the light of the statutory scheme, do not
admit of conferring any discretion on the officer in-charge of
the police station for embarking upon a preliminary inquiry
prior to the registration of an FIR. It is settled position of
law that if the provision is unambiguous and the legislative
intent is clear, the court need not call into it any other rules
of construction.
45) In view of the above, the use of the word ‘shall’ coupled
with the Scheme of the Act lead to the conclusion that the
legislators intended that if an information relating to
44
commission of a cognizable offence is given, then it would
mandatorily be registered by the officer in-charge of the
police station. Reading ‘shall’ as ‘may’, as contended by
some counsel, would be against the Scheme of the Code.
Section 154 of the Code should be strictly construed and
the word ‘shall’ should be given its natural meaning. The
golden rule of interpretation can be given a go-by only in
cases where the language of the section is ambiguous
and/or leads to an absurdity.
46) In view of the above, we are satisfied that Section
154(1) of the Code does not have any ambiguity in this
regard and is in clear terms. It is relevant to mention that
Section 39 of the Code casts a statutory duty on every
person to inform about commission of certain offences
which includes offences covered by Sections 121 to 126,
302, 64-A, 382, 392 etc., of the IPC. It would be
incongruous to suggest that though it is the duty of every
citizen to inform about commission of an offence, but it is
not obligatory on the officer-incharge of a Police Station to
register the report. The word ‘shall’ occurring in Section 39
of the Code has to be given the same meaning as the word
45
‘shall’ occurring in Section 154(1) of the Code.
‘Book’/‘Diary’
47) It is contented by learned ASG appearing for the State
of Chhattisgarh that the recording of first information under
Section 154 in the ‘book’ is subsequent to the entry in the
General Diary/Station Diary/Daily Diary, which is
maintained in police station. Therefore, according to
learned ASG, first information is a document at the earliest
in the general diary, then if any preliminary inquiry is
needed the police officer may conduct the same and
thereafter the information will be registered as FIR.
48) This interpretation is wholly unfounded. The First
Information Report is in fact the “information” that is
received first in point of time, which is either given in
writing or is reduced to writing. It is not the “substance” of
it, which is to be entered in the diary prescribed by the
State Government. The term ‘General Diary’ (also called as
‘Station Diary’ or ‘Daily Diary’ in some States) is maintained
not under Section 154 of the Code but under the provisions
of Section 44 of the Police Act, 1861 in the States to which it
46
applies, or under the respective provisions of the Police
Act(s) applicable to a State or under the Police Manual of a
State, as the case may be. Section 44 of the Police Act,
1861 is reproduced below:-
“44. Police-officers to keep diary.—It shall be the
duty of every officer in charge of a police-station to
keep a general diary in such form as shall, from
time to time, be prescribed by the State
Government and to record therein all complaints
and charged preferred, the names of all persons
arrested, the names of the complainants, the
offences charged against them, the weapons or
property that shall have been taken from their
possession or otherwise, and the names of the
witnesses who shall have been examined. The
Magistrate of the district shall be at liberty to call
for any inspect such diary.”
49) It is pertinent to note that during the year 1861, when
the aforesaid Police Act, 1861 was passed, the Code of
Criminal Procedure, 1861 was also passed. Section 139 of
that Code dealt with registration of FIR and this Section is
also referred to the word “diary”, as can be seen from the
language of this Section, as reproduced below:-
“139. Every complaint or information preferred to an
officer in charge of a Police Station, shall be reduced into
writing, and the substance thereof shall be entered in a
diary to be kept by such officer, in such form as shall be
prescribed by the local government.”
Thus, Police Act, 1861 and the Code of Criminal Procedure,
1861, both of which were passed in the same year, used the
47
same word “diary”.
50) However, in the year 1872, a new Code came to be
passed which was called the Code of Criminal Procedure,
1872. Section 112 of the Code dealt with the issue of
registration of FIR and is reproduced below:-
“112. Every complaint preferred to an officer in charge of
a Police station shall be reduced into writing, and shall be
signed, sealed, or marked by the person making it; and
the substance thereof shall be entered in a book to be
kept by such officer in the form prescribed by the Local
Government.”
51) It is, thus, clear that in the Code of Criminal
Procedure, 1872, a departure was made and the word ‘book’
was used in place of ‘diary’. The word ‘book’ clearly referred
to FIR book to be maintained under the Code for
registration of FIRs.
52) The question that whether the FIR is to be recorded
in the FIR Book or in General Diary, is no more res integra.
This issue has already been decided authoritatively by this
Court.
53) In Madhu Bala vs. Suresh Kumar (1997) 8 SCC 476,
this Court has held that FIR must be registered in the FIR
48
Register which shall be a book consisting of 200 pages. It is
true that the substance of the information is also to be
mentioned in the Daily diary (or the general diary). But, the
basic requirement is to register the FIR in the FIR Book or
Register. Even in Bhajan Lal (supra), this Court held that
FIR has to be entered in a book in a form which is
commonly called the First Information Report.
54) It is thus clear that registration of FIR is to be done in
a book called FIR book or FIR Register. Of course, in
addition, the gist of the FIR or the substance of the FIR may
also be mentioned simultaneously in the General Diary as
mandated in the respective Police Act or Rules, as the case
may be, under the relevant State provisions.
55) The General Diary is a record of all important
transactions/events taking place in a police station,
including departure and arrival of police staff, handing over
or taking over of charge, arrest of a person, details of law
and order duties, visit of senior officers etc. It is in this
context that gist or substance of each FIR being registered
in the police station is also mentioned in the General Diary
since registration of FIR also happens to be a very important
49
event in the police station. Since General Diary is a record
that is maintained chronologically on day-to-day basis (on
each day, starting with new number 1), the General Diary
entry reference is also mentioned simultaneously in the FIR
Book, while FIR number is mentioned in the General Diary
entry since both of these are prepared simultaneously.
56) It is relevant to point out that FIR Book is maintained
with its number given on an annual basis. This means that
each FIR has a unique annual number given to it. This is
on similar lines as the Case Numbers given in courts. Due
to this reason, it is possible to keep a strict control and
track over the registration of FIRs by the supervisory police
officers and by the courts, wherever necessary. Copy of
each FIR is sent to the superior officers and to the
concerned Judicial Magistrate.
57) On the other hand, General Diary contains a huge
number of other details of the proceedings of each day.
Copy of General Diary is not sent to the Judicial Magistrate
having jurisdiction over the police station, though its copy is
sent to a superior police officer. Thus, it is not possible to
keep strict control of each and every FIR recorded in the
50
General Diary by superior police officers and/or the court in
view of enormous amount of other details mentioned therein
and the numbers changing every day.
58) The signature of the complainant is obtained in the
FIR Book as and when the complaint is given to the police
station. On the other hand, there is no such requirement of
obtaining signature of the complainant in the general diary.
Moreover, at times, the complaint given may consist of
large number of pages, in which case it is only the gist of
the complaint which is to be recorded in the General Diary
and not the full complaint. This does not fit in with the
suggestion that what is recorded in General Diary should be
considered to be the fulfillment/compliance of the
requirement of Section 154 of registration of FIR. In fact,
the usual practice is to record the complete complaint in the
FIR book (or annex it with the FIR form) but record only
about one or two paragraphs (gist of the information) in the
General Diary.
59) In view of the above, it is useful to point out that the
Code was enacted under Entry 2 of the Concurrent List of
the Seventh Schedule to the Constitution which is
51
reproduced below:-
“2. Criminal procedure, including all matters included in
the Code of Criminal Procedure at the commencement of
this Constitution.”
On the other hand, Police Act, 1861 (or other similar Acts in
respective States) were enacted under Entry 2 of the State
List of the Seventh Schedule to the Constitution, which is
reproduced below:-
“2. Police (including railway and village police) subject to
the provisions of Entry 2A of List I.”
60) Now, at this juncture, it is pertinent to refer Article
254(1) of the Constitution, which lays down the provisions
relating to inconsistencies between the laws made by the
Parliament and the State Legislatures. Article 254(1) is
reproduced as under:-
“254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States
(1) If any provision of a law made by the Legislature of a
State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject
to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made
by the Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the
repugnancy, be void.”
52
Thus it is clear from the mandate of Article 254(1) of the
Constitution that if there is any inconsistency between the
provisions of the Code and the Police Act, 1861, the
provisions of the Code will prevail and the provisions of the
Police Act would be void to the extent of the repugnancy.
61) If at all, there is any inconsistency in the provisions of
Section 154 of the Code and Section 44 of the Police Act,
1861, with regard to the fact as to whether the FIR is to be
registered in the FIR book or in the General Diary, the
provisions of Section 154 of the Code will prevail and the
provisions of Section 44 of the Police Act, 1861 (or similar
provisions of the respective corresponding Police Act or
Rules in other respective States) shall be void to the extent
of the repugnancy. Thus, FIR is to be recorded in the FIR
Book, as mandated under Section 154 of the Code, and it is
not correct to state that information will be first recorded in
the General Diary and only after preliminary inquiry, if
required, the information will be registered as FIR.
62) However, this Court in Tapan Kumar Singh (supra),
held that a GD entry may be treated as First information in
an appropriate case, where it discloses the commission of a
53
cognizable offence. It was held as under:
“15. It is the correctness of this finding which is assailed
before us by the appellants. They contend that the
information recorded in the GD entry does disclose the
commission of a cognizable offence. They submitted that
even if their contention, that after recording the GD entry
only a preliminary inquiry was made, is not accepted,
they are still entitled to sustain the legality of the
investigation on the basis that the GD entry may be
treated as a first information report, since it disclosed the
commission of a cognizable offence.
16. The parties before us did not dispute the legal
position that a GD entry may be treated as a first
information report in an appropriate case, where it
discloses the commission of a cognizable offence. If the
contention of the appellants is upheld, the order of the
High Court must be set aside because if there was in law
a first information report disclosing the commission of a
cognizable offence, the police had the power and
jurisdiction to investigate, and in the process of
investigation to conduct search and seizure. It is,
therefore, not necessary for us to consider the authorities
cited at the Bar on the question of validity of the
preliminary inquiry and the validity of the search and
seizure.
Xxx xxxx
19. The High Court fell into an error in thinking that the
information received by the police could not be treated as
a first information report since the allegation was vague
inasmuch as it was not stated from whom the sum of
rupees one lakh was demanded and accepted. Nor was it
stated that such demand or acceptance was made as
motive or reward for doing or forbearing to do any official
act, or for showing or forbearing to show in exercise of his
official function, favour or disfavour to any person or for
rendering, attempting to render any service or disservice
to any person. Thus there was no basis for a police officer
to suspect the commission of an offence which he was
empowered under Section 156 of the Code to investigate.”
63) It is thus unequivocally clear that registration of FIR is
54
mandatory and also that it is to be recorded in the FIR Book
by giving a unique annual number to each FIR to enable
strict tracking of each and every registered FIR by the
superior police officers as well as by the competent court to
which copies of each FIR are required to be sent.
‘Information’
64) The legislature has consciously used the expression
“information” in Section 154(1) of the Code as against the
expression used in Section 41(1)(a) and (g) where the
expression used for arresting a person without warrant is
“reasonable complaint” or “credible information”. The
expression under Section 154(1) of the Code is not qualified
by the prefix “reasonable” or “credible”. The non
qualification of the word “information” in Section 154(1)
unlike in Section 41(1)(a) and (g) of the Code is for the
reason that the police officer should not refuse to record any
information relating to the commission of a cognizable
offence 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 the registration of a case.
55
65) The above view has been expressed by this Court in
Bhajan Lal (supra) which is as under:-
“32. … 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 Section
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
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. 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.”
66) In Parkash Singh Badal (supra), this Court held as
under:-
“65. The legal mandate enshrined in Section 154(1) is
that every information relating to the commission of a
“cognizable offence” [as defined under Section 2(c) of the
Code] if given orally (in which case it is to be reduced into
writing) or in 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.
66. 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 Section 154(1) of the Code,
the police officer concerned cannot embark upon an inquiry
as to whether the information laid by the informant is
reliable and genuine or otherwise and refuse to register a
56
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 the investigation if he has reason 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 thereof. In case an officer in charge of a police
station refuses to exercise the jurisdiction vested in 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 and 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.
67. 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 Sections 41(1)(a) or (g) of the Code
wherein the expressions “reasonable complaint” and
“credible information” are used. Evidently, the nonqualification
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 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. 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 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 1898 which word is now used in
Sections 154, 155, 157 and 190(c) of the Code. An overall
57
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.
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.”
67) In Ramesh Kumari (supra), this Court held as
under:-
4. That a police officer mandatorily registers a case on a
complaint of a cognizable offence by the citizen under
Section 154 of the Code is no more res integra. The point of
law has been set at rest by this Court in State of Haryana v.
Bhajan Lal. This Court after examining the whole gamut and
intricacies of the mandatory nature of Section 154 of the
Code has arrived at the finding in paras 31 and 32 of the
judgment as under:
“31. 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 Section 154(1)
of the Code, the police officer concerned cannot embark
upon an inquiry 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 the investigation if he has
reason 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. (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 ensuing 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 in
him and to register a case on the information of a
cognizable offence reported and thereby violates the
58
statutory duty cast upon him, the person aggrieved by
such refusal can send the substance of the information in
writing and 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.
32. Be it 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 nonqualification
of the word ‘information’ in Section 154(1)
unlike in Section 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 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. 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 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 1898
which word is now used in Sections 154, 155, 157 and
190(c) of the present Code of 1973 (Act 2 of 1974). An
overall 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 information and
that information must disclose a cognizable offence.”
(emphasis in original)
59
Finally, this Court in para 33 said:
“33. 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.”
5. The views expressed by this Court in paras 31, 32 and
33 as quoted above leave no manner of doubt that the
provision of Section 154 of the Code is mandatory and the
officer concerned is duty-bound to register the case on the
basis of such information disclosing cognizable offence.”
68) In Ram Lal Narang (supra), this Court held as
under:-
“14. Under the CrPC, 1898, whenever an officer in charge
of the police station received information relating to the
commission of a cognizable offence, he was required to enter
the substance thereof in a book kept by him, for that
purpose, in the prescribed form (Section 154 CrPC). Section
156 of the CrPC invested the Police with the power to
investigate into cognizable offences without the order of a
Court. If, from the information received or otherwise, the
officer in charge of a police station suspected the commission
of a cognizable offence, he was required to send forthwith a
report of the same to a Magistrate empowered to take
cognizance of such offence upon a police report and then to
proceed in person or depute one of his subordinate officers to
proceed to the spot, to investigate the facts and
circumstances of the case and to take measures for the
discovery and arrest of the offender (Section 157 CrPC). He
was required to complete the investigation without
unnecessary delay, and, as soon as it was completed, to
forward to a Magistrate empowered to take cognizance of the
offence upon a police report, a report in the prescribed form,
setting forth the names of the parties, the nature of the
information and the names of the persons who appeared to
be acquainted with the circumstances of the case [Section
173(1) CrPC]. He was also required to state whether the
accused had been forwarded in custody or had been released
on bail. Upon receipt of the report submitted under Section
173(1) CrPC by the officer in charge of the police station, the
Magistrate empowered to take cognizance of an offence upon
60
a police report might take cognizance of the offence [Section
190(1)(b) CrPC]. Thereafter, if, in the opinion of the
Magistrate taking cognizance of the offence, there was
sufficient ground for proceeding, the Magistrate was required
to issue the necessary process to secure the attendance of
the accused (Section 204 CrPC). The scheme of the Code
thus was that the FIR was followed by investigation, the
investigation led to the submission of a report to the
Magistrate, the Magistrate took cognizance of the offence on
receipt of the police report and, finally, the Magistrate taking
cognizance issued process to the accused.
15. The police thus had the statutory right and duty to
“register” every information relating to the commission of a
cognizable offence. The police also had the statutory right
and duty to investigate the facts and circumstances of the
case where the commission of a cognizable offence was
suspected and to submit the report of such investigation to
the Magistrate having jurisdiction to take cognizance of the
offence upon a police report. These statutory rights and
duties of the police were not circumscribed by any power of
superintendence or interference in the Magistrate; nor was
any sanction required from a Magistrate to empower the
Police to investigate into a cognizable offence. This position
in law was well-established. In King Emperor v. Khwaja Nazir
Ahmad the Privy Council observed as follows:
“Just as it is essential that everyone accused of a
crime should have free access to a Court of justice, so
that he may be duly acquitted if found not guilty of the
offence with which he is charged, so it is of the utmost
importance that the judiciary should not interfere with
the police in matters which are within their province and
into which the law imposes on them the duty of inquiry.
In India, as has been shown, there is a statutory right on
the part of the police to investigate the circumstances of
an alleged cognizable crime without requiring any
authority from the judicial authorities, and it would, as
Their Lordships think, be an unfortunate result if it
should be held possible to interfere with those statutory
rules by an exercise of the inherent jurisdiction of the
Court. The functions of the judiciary and the police are
complementary, not overlapping, and the combination of
individual liberty with a due observance of law and order
is only to be obtained by leaving each to exercise its own
function, always of course, subject to the right of the
Courts to intervene in an appropriate case when moved
under Section 491 of the Criminal Procedure Code to give
directions in the nature of Habeas Corpus. In such a case
61
as the present, however, the Court’s functions begin when
a charge is preferred before it and not until then … In the
present case, the police have under Sections 154 and 156
of the Criminal Procedure Code, a statutory right to
investigate a cognizable offence without requiring the
sanction of the Court ….”
Ordinarily, the right and duty of the police would end with
the submission of a report under Section 173(1) CrPC upon
receipt of which it was up to the Magistrate to take or not to
take cognizance of the offence. There was no provision in the
1898 Code prescribing the procedure to be followed by the
police, where, after the submission of a report under Section
173(1) CrPC and after the Magistrate had taken cognizance
of the offence, fresh facts came to light which required
further investigation. There was, of course, no express
provision prohibiting the police from launching upon an
investigation into the fresh facts coming to light after the
submission of the report under Section 173(1) or after the
Magistrate had taken cognizance of the offence. As we shall
presently point out, it was generally thought by many High
Courts, though doubted by a few, that the police were not
barred from further investigation by the circumstance that a
report under Section 173(1) had already been submitted and
a Magistrate had already taken cognizance of the offence.
The Law Commission in its 41st report recognized the
position and recommended that the right of the police to
make further investigation should be statutorily affirmed.
The Law Commission said:
“14.23. A report under Section 173 is normally the
end of the investigation. Sometimes, however, the police
officer after submitting the report under Section 173
comes upon evidence bearing on the guilt or innocence of
the accused. We should have thought that the police
officer can collect that evidence and send it to the
Magistrate concerned. It appears, however, that Courts
have sometimes taken the narrow view that once a final
report under Section 173 has been sent, the police cannot
touch the case again and cannot re-open the
investigation. This view places a hindrance in the way of
the investigating agency, which can be very unfair to the
prosecution and, for that matter, even to the accused. It
should be made clear in Section 173 that the competent
police officer can examine such evidence and send a
report to the Magistrate. Copies concerning the fresh
material must of course be furnished to the accused.”
Accordingly, in the CrPC, 1973, a new provision, Section
62
173(8), was introduced and it says:
“Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the
Magistrate and, where upon such investigation, the officer
in charge of the police station obtains further evidence,
oral or documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in the
form prescribed; and the provisions of sub-sections (2) to
(6) shall, as far as may be, apply in relation to such report
or reports as they apply in relation to a report forwarded
under sub-section (2).”
69) In Lallan Chaudhary (supra), this Court held as
under:
“8. Section 154 of the Code thus casts a statutory duty
upon the police officer to register the case, as disclosed in
the complaint, and then to proceed with the investigation.
The mandate of Section 154 is manifestly clear that if any
information disclosing a cognizable offence is laid before an
officer in charge of a police station, such police officer has no
other option except to register the case on the basis of such
information.
9. In Ramesh Kumari v. State (NCT of Delhi) this Court has
held that the provision of Section 154 is mandatory. Hence,
the police officer concerned is duty-bound to register the
case on receiving information disclosing cognizable offence.
Genuineness or credibility of the information is not a
condition precedent for registration of a case. That can only
be considered after registration of the case.
10. 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 offence, the police officer
concerned cannot embark upon an inquiry 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 under
Section 154 of the Code.”
A perusal of the above-referred judgments clarify that the
63
reasonableness or creditability of the information is not a
condition precedent for the registration of a case.
Preliminary Inquiry
70) Mr. Naphade relied on the following decisions in
support of his arguments that if the police officer has a
doubt about the veracity of the accusation, he has to
conduct preliminary inquiry, viz., E.P. Royappa vs. State
of Tamil Nadu (1974) 4 SCC 3, Maneka Gandhi (supra),
S.M.D. Kiran Pasha vs. Government of Andhra Pradesh
(1990) 1 SCC 328, D.K. Basu vs. State of W.B. (1997) 1
SCC 416, Uma Shankar Sitani vs. Commissioner of
Police, Delhi & Ors. (1996) 11 SCC 714, Preeti Gupta
(supra), Francis Coralie Mullin vs. Administrator, Union
Territory of Delhi (1981) 1 SCC 608, Common Cause, A
Registered Society vs. Union of India (1999) 6 SCC 667,
District Registrar and Collector, Hyderabad vs. Canara
Bank (2005) 1 SCC 496 and Ranjitsing Brahmajeetsing
Sharma vs. State of Maharashtra (2005) 5 SCC 294.
71) Learned senior counsel for the State further
vehemently contended that in appropriate cases, it would be
64
proper for a police officer, on receipt of a complaint of a
cognizable offence, to satisfy himself that prima facie the
allegations levelled against the accused in the complaint are
credible. In this regard, Mr. Naphade cited the following
decisions, viz. Tapan Kumar Singh (supra), Bhagwant
Kishore Joshi (supra), P. Sirajuddin (supra), Sevi
(supra), Shashikant (supra), Rajinder Singh Katoch
(supra), Vineet Narain vs. Union of India (1998) 1 SCC
226, Elumalai vs. State of Tamil Nadu 1983 LW (CRL)
121, A. Lakshmanarao vs. Judicial Magistrate,
Parvatipuram AIR 1971 SC 186, State of Uttar Pradesh
vs. Ram Sagar Yadav & Ors. (1985) 1 SCC 552, Mona
Panwar vs. High Court of Judicature of Allahabad
(2011) 3 SCC 496, Apren Joseph vs. State of Kerala
(1973) 3 SCC 114, King Emperor vs. Khwaja Nazir
Ahmad AIR 1945 PC 18 and Sarangdharsingh
Shivdassingh Chavan (supra).
72) He further pointed out that the provisions have to be
read in the light of the principle of malicious prosecution and
the fundamental rights guaranteed under Articles 14, 19
and 21. It is the stand of learned senior counsel that every
65
citizen has a right not to be subjected to malicious
prosecution and every police officer has an in-built duty
under Section 154 to ensure that an innocent person is not
falsely implicated in a criminal case. If despite the fact that
the police officer is not prima facie satisfied, as regards
commission of a cognizable offence and proceeds to register
an FIR and carries out an investigation, it would result in
putting the liberty of a citizen in jeopardy. Therefore,
learned senior counsel vehemently pleaded for a preliminary
inquiry before registration of FIR.
73) In terms of the language used in Section 154 of the
Code, the police is duty bound to proceed to conduct
investigation into a cognizable offence even without
receiving information (i.e. FIR) about commission of such an
offence, if the officer in charge of the police station otherwise
suspects the commission of such an offence. The legislative
intent is therefore quite clear, i.e., to ensure that every
cognizable offence is promptly investigated in accordance
with law. This being the legal position, there is no reason
that there should be any discretion or option left with the
police to register or not to register an FIR when information
66
is given about the commission of a cognizable offence.
Every cognizable offence must be investigated promptly in
accordance with law and all information provided under
Section 154 of the Code about the commission of a
cognizable offence must be registered as an FIR so as to
initiate an offence. The requirement of Section 154 of the
Code is only that the report must disclose the commission
of a cognizable offence and that is sufficient to set the
investigating machinery into action.
74) The insertion of sub-section (3) of Section 154, by way
of an amendment, reveals the intention of the legislature to
ensure that no information of commission of a cognizable
offence must be ignored or not acted upon which would
result in unjustified protection of the alleged
offender/accused.
75) The maxim expression unius est exclusion alterius
(expression of one thing is the exclusion of another) applies
in the interpretation of Section 154 of the Code, where the
mandate of recording the information in writing excludes
the possibility of not recording an information of
commission of a cognizable crime in the special register.
67
76) Therefore, conducting an investigation into an offence
after registration of FIR under Section 154 of the Code is the
“procedure established by law” and, thus, is in conformity
with Article 21 of the Constitution. Accordingly, the right of
the accused under Article 21 of the Constitution is protected
if the FIR is registered first and then the investigation is
conducted in accordance with the provisions of law.
77) The term inquiry as per Section 2(g) of the Code reads
as under:
‘2(g) – “inquiry” means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court.”
Hence, it is clear that inquiry under the Code is relatable to
a judicial act and not to the steps taken by the Police which
are either investigation after the stage of Section 154 of the
Code or termed as ‘Preliminary Inquiry’ and which are prior
to the registration of FIR, even though, no entry in the
General Diary/Station Diary/Daily Diary has been made.
78) Though there is reference to the term ‘preliminary
inquiry’ and ‘inquiry’ under Sections 159 and Sections 202
and 340 of the Code, that is a judicial exercise undertaken
by the Court and not by the Police and is not relevant for
68
the purpose of the present reference.
79) Besides, learned senior counsel relied on the special
procedures prescribed under the CBI manual to be read into
Section 154. It is true that the concept of “preliminary
inquiry” is contained in Chapter IX of the Crime Manual of
the CBI. However, this Crime Manual is not a statute and
has not been enacted by the legislature. It is a set of
administrative orders issued for internal guidance of the
CBI officers. It cannot supersede the Code. Moreover, in the
absence of any indication to the contrary in the Code itself,
the provisions of the CBI Crime Manual cannot be relied
upon to import the concept of holding of preliminary inquiry
in the scheme of the Code of Criminal Procedure. At this
juncture, it is also pertinent to submit that the CBI is
constituted under a Special Act, namely, the Delhi Special
Police Establishment Act, 1946 and it derive its power to
investigate from this Act.
80) It may be submitted that Sections 4(2) and 5 of the
Code permit special procedures to be followed for special
Acts. Section 4 of the Code lays down as under:
69
“Section 4. Trial of offences under the Indian Penal Code
and other laws. (1) All offences under the Indian Penal Code (45
of 1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the
same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.”
It is thus clear that for offences under laws other than IPC,
different provisions can be laid down under a special Act to
regulate the investigation, inquiry, trial etc., of those
offences. Section 4(2) of the Code protects such special
provisions.
81) Moreover, Section 5 of the Code lays down as under:
“Section 5. Saving – Nothing contained in this Code shall, in
the absence of a specific provision to the contrary, affect any
special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of procedure
prescribed, by any other law for the time being in force.”
Thus, special provisions contained in the DSPE Act relating
to the powers of the CBI are protected also by Section 5 of
the Code.
82) In view of the above specific provisions in the Code, the
powers of the CBI under the DSPE Act, cannot be equated
with the powers of the regular State Police under the Code.
70
Significance and Compelling reasons for registration of
FIR at the earliest
83) The object sought to be achieved by registering the
earliest information as FIR is inter alia two fold: one, that
the criminal process is set into motion and is well
documented from the very start; and second, that the
earliest information received in relation to the commission
of a cognizable offence is recorded so that there cannot be
any embellishment etc., later.
84) Principles of democracy and liberty demand a regular
and efficient check on police powers. One way of keeping
check on authorities with such powers is by documenting
every action of theirs. Accordingly, under the Code, actions
of the police etc., are provided to be written and
documented. For example, in case of arrest under Section
41(1)(b) of the Code, arrest memo along with the grounds
has to be in writing mandatorily; under Section 55 of the
Code, if an officer is deputed to make an arrest, then the
superior officer has to write down and record the offence
etc., for which the person is to be arrested; under Section
91 of the Code, a written order has to be passed by the
concerned officer to seek documents; under Section 160 of
71
the Code, a written notice has to be issued to the witness so
that he can be called for recording of his/her statement,
seizure memo/panchnama has to be drawn for every article
seized etc.
85) The police is required to maintain several records
including Case Diary as provided under Section 172 of the
Code, General Diary as provided under Section 44 of the
Police Act etc., which helps in documenting every
information collected, spot visited and all the actions of the
police officers so that their activities can be documented.
Moreover, every information received relating to commission
of a non-cognizable offence also has to be registered under
Section 155 of the Code.
86) The underpinnings of compulsory registration of FIR is
not only to ensure transparency in the criminal justice
delivery system but also to ensure ‘judicial oversight’.
Section 157(1) deploys the word ‘forthwith’. Thus, any
information received under Section 154(1) or otherwise has
to be duly informed in the form of a report to the Magistrate.
Thus, the commission of a cognizable offence is not only
brought to the knowledge of the investigating agency but
72
also to the subordinate judiciary.
87) The Code contemplates two kinds of FIRs. The duly
signed FIR under Section 154(1) is by the informant to the
concerned officer at the police station. The second kind of
FIR could be which is registered by the police itself on any
information received or other than by way of an informant
[Section 157(1)] and even this information has to be duly
recorded and the copy should be sent to the Magistrate
forthwith.
88) The registration of FIR either on the basis of the
information furnished by the informant under Section
154(1) of the Code or otherwise under Section 157(1) of the
Code is obligatory. The obligation to register FIR has
inherent advantages:
a) It is the first step to ‘access to justice’ for a victim.
b) It upholds the ‘Rule of Law’ inasmuch as the
ordinary person brings forth the commission of a
cognizable crime in the knowledge of the State.
c) It also facilitates swift investigation and sometimes
73
even prevention of the crime. In both cases, it only
effectuates the regime of law.
d) It leads to less manipulation in criminal cases and
lessens incidents of ‘ante-dates’ FIR or deliberately
delayed FIR.
89) In Thulia Kali vs. State of Tamil Nadu (1972) 3 SCC
393, this Court held as under:-
“12…First information report in a criminal case is an
extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence adduced at the
trial. The importance of the above report can hardly be
overestimated from the standpoint of the accused. The
object of insisting upon prompt lodging of the report to
the police in respect of commission of an offence is to
obtain early information regarding the circumstances in
which the crime was committed, the names of the actual
culprits and the part played by them as well as the names
of eyewitnesses present at the scene of occurrence. Delay
in lodging the first information report quite often results
in embellishment which is a creature of afterthought. On
account of delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or
concocted story as a result of deliberation and
consultation. It is, therefore, essential that the delay in
the lodging of the first information report should be
satisfactorily explained…”
90) In Tapan Kumar Singh (supra), it was held as
under:-
“20. It is well settled that a first information report is
not an encyclopaedia, which must disclose all facts and
details relating to the offence reported. An informant may
lodge a report about the commission of an offence though
74
he may not know the name of the victim or his assailant.
He may not even know how the occurrence took place. A
first informant need not necessarily be an eyewitness so
as to be able to disclose in great detail all aspects of the
offence committed. What is of significance is that the
information given must disclose the commission of a
cognizable offence and the information so lodged must
provide a basis for the police officer to suspect the
commission of a cognizable offence. At this stage it is
enough if the police officer on the basis of the information
given suspects the commission of a cognizable offence,
and not that he must be convinced or satisfied that a
cognizable offence has been committed. If he has reasons
to suspect, on the basis of information received, that a
cognizable offence may have been committed, he is bound
to record the information and conduct an investigation. At
this stage it is also not necessary for him to satisfy
himself about the truthfulness of the information. It is
only after a complete investigation that he may be able to
report on the truthfulness or otherwise of the information.
Similarly, even if the information does not furnish all the
details he must find out those details in the course of
investigation and collect all the necessary evidence. The
information given disclosing the commission of a
cognizable offence only sets in motion the investigative
machinery, with a view to collect all necessary evidence,
and thereafter to take action in accordance with law. The
true test is whether the information furnished provides a
reason to suspect the commission of an offence, which the
police officer concerned is empowered under Section 156
of the Code to investigate. If it does, he has no option but
to record the information and proceed to investigate the
case either himself or depute any other competent officer
to conduct the investigation. The question as to whether
the report is true, whether it discloses full details
regarding the manner of occurrence, whether the accused
is named, and whether there is sufficient evidence to
support the allegations are all matters which are alien to
the consideration of the question whether the report
discloses the commission of a cognizable offence. Even if
the information does not give full details regarding these
matters, the investigating officer is not absolved of his
duty to investigate the case and discover the true facts, if
he can.”
91) In Madhu Bala (supra), this Court held:
“6. Coming first to the relevant provisions of the Code,
75
Section 2(d) defines “complaint” to mean any allegation made
orally or in writing to a Magistrate, with a view to his taking
action under the Code, that some person, whether known or
unknown has committed an offence, but does not include a
police report. Under Section 2(c) “cognizable offence” means
an offence for which, and “cognizable case” means a case in
which a police officer may in accordance with the First
Schedule (of the Code) or under any other law for the time
being in force, arrest without a warrant. Under Section 2(r)
“police report” means a report forwarded by a police officer to
a Magistrate under sub-section (2) of Section 173 of the
Code. Chapter XII of the Code comprising Sections 154 to
176 relates to information to the police and their powers to
investigate. Section 154 provides, inter alia, that the officer
in charge of a police station shall reduce into writing every
information relating to the commission of a cognizable
offence given to him orally and every such information if
given in writing 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. Section 156 of the Code with which
we are primarily concerned in these appeals reads as
under:….
9. The mode and manner of registration of such cases are
laid down in the Rules framed by the different State
Governments under the Indian Police Act, 1861. As in the
instant case we are concerned with Punjab Police Rules,
1934 (which are applicable to Punjab, Haryana, Himachal
Pradesh and Delhi) framed under the said Act we may now
refer to the relevant provisions of those Rules. Chapter XXIV
of the said Rules lays down the procedure an officer in
charge of a police station has to follow on receipt of
information of commission of crime. Under Rule 24.1
appearing in the Chapter every information covered by
Section 154 of the Code must be entered in the First
Information Report Register and the substance thereof in the
daily diary. Rule 24.5 says that the First Information Report
Register shall be a printed book in Form 24.5(1) consisting of
200 pages and shall be completely filled before a new one is
commenced. It further requires that the cases shall bear an
annual serial number in each police station for each
calendar year. The other requirements of the said Rules need
not be detailed as they have no relevance to the point at
issue.
10. From the foregoing discussion it is evident that
whenever a Magistrate directs an investigation on a
“complaint” the police has to register a cognizable case on
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that complaint treating the same as the FIR and comply with
the requirements of the above Rules. It, therefore, passes our
comprehension as to how the direction of a Magistrate
asking the police to “register a case” makes an order of
investigation under Section 156(3) legally unsustainable.
Indeed, even if a Magistrate does not pass a direction to
register a case, still in view of the provisions of Section
156(1) of the Code which empowers the police to investigate
into a cognizable “case” and the Rules framed under the
Indian Police Act, 1861 it (the police) is duty-bound to
formally register a case and then investigate into the same.
The provisions of the Code, therefore, do not in any way
stand in the way of a Magistrate to direct the police to
register a case at the police station and then investigate into
the same. In our opinion when an order for investigation
under Section 156(3) of the Code is to be made the proper
direction to the police would be “to register a case at the
police station treating the complaint as the first information
report and investigate into the same”.
92) According to the Statement of Objects and Reasons,
protection of the interests of the poor is clearly one of the
main objects of the Code. Making registration of
information relating to commission of a cognizable offence
mandatory would help the society, especially, the poor in
rural and remote areas of the country.
93) The Committee on Reforms of Criminal Justice System
headed by Dr. Justice V.S. Malimath also noticed the plight
faced by several people due to non-registration of FIRs and
recommended that action should be taken against police
officers who refuse to register such information. The
Committee observed:-
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“7.19.1 According to the Section 154 of the Code of
Criminal Procedure, the office incharge of a police station
is mandated to register every information oral or written
relating to the commission of a cognizable offence. Nonregistration
of cases is a serious complaint against the
police. The National Police Commission in its 4th report
lamented that the police “evade registering cases for
taking up investigation where specific complaints are
lodged at the police stations”. It referred to a study
conducted by the Indian Institute of Public Opinion, New
Delhi regarding “Image of the Police in India” which
observed that over 50% of the respondents mention nonregistration
of complaints as a common practice in police
stations.
7.19.2 The Committee recommends that all complaints
should be registered promptly, failing which appropriate
action should be taken. This would necessitate change in
the mind – set of the political executive and that of senior
officers.
7.19.4 There are two more aspects relating to
registration. The first is minimization of offences by the
police by way of not invoking appropriate sections of law.
We disapprove of this tendency. Appropriate sections of
law should be invoked in each case unmindfull of the
gravity of offences involved. The second issue is relating
to the registration of written complaints. There is an
increasing tendency amongst the police station officers to
advise the informants, who come to give oral complaints,
to bring written complaints. This is wrong. Registration
is delayed resulting in valuable loss of time in launching
the investigation and apprehension of criminals. Besides,
the complainant gets an opportunity to consult his
friends, relatives and sometimes even lawyers and often
tends to exaggerate the crime and implicate innocent
persons. This eventually has adverse effect at the trial.
The information should be reduced in writing by the SH, if
given orally, without any loss of time so that the first
version of the alleged crime comes on record.
7.20.11 It has come to the notice of the Committee that
even in cognizable cases quite often the Police officers do
not entertain the complaint and send the complainant
away saying that the offence is not cognizable.
Sometimes the police twist facts to bring the case within
the cognizable category even though it is non-cognizable,
due to political or other pressures or corruption. This
menace can be stopped by making it obligatory on the
78
police officer to register every complaint received by him.
Breach of this duty should become an offence punishable
in law to prevent misuse of the power by the police
officer.”
94) It means that the number of FIRs not registered is
approximately equivalent to the number of FIRs actually
registered. Keeping in view the NCRB figures that show that
about 60 lakh cognizable offences were registered in India
during the year 2012, the burking of crime may itself be in
the range of about 60 lakh every year. Thus, it is seen that
such a large number of FIRs are not registered every year,
which is a clear violation of the rights of the victims of such
a large number of crimes.
95) Burking of crime leads to dilution of the rule of law in
the short run; and also has a very negative impact on the
rule of law in the long run since people stop having respect
for rule of law. Thus, non-registration of such a large
number of FIRs leads to a definite lawlessness in the
society.
96) Therefore, reading Section 154 in any other form
would not only be detrimental to the Scheme of the Code
but also to the society as a whole. It is thus seen that this
79
Court has repeatedly held in various decided cases that
registration of FIR is mandatory if the information given to
the police under Section 154 of the Code discloses the
commission of a cognizable offence.
Is there a likelihood of misuse of the provision?
97) Another, stimulating argument raised in support of
preliminary inquiry is that mandatory registration of FIRs
will lead to arbitrary arrest, which will directly be in
contravention of Article 21 of the Constitution.
98) While registration of FIR is mandatory, arrest of the
accused immediately on registration of FIR is not at all
mandatory. In fact, registration of FIR and arrest of an
accused person are two entirely different concepts under the
law, and there are several safeguards available against
arrest. Moreover, it is also pertinent to mention that an
accused person also has a right to apply for “anticipatory
bail” under the provisions of Section 438 of the Code if the
conditions mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest under that
provision by obtaining an order from the Court.
80
99) It is also relevant to note that in Joginder Kumar vs.
State of U.P. & Ors. (1994) 4 SCC 260, this Court has held
that arrest cannot be made by police in a routine manner.
Some important observations are reproduced as under:-
“20…No arrest can be made in a routine manner on a
mere allegation of commission of an offence made against
a person. It would be prudent for a police officer in the
interest of protection of the constitutional rights of a
citizen and perhaps in his own interest that no arrest
should be made without a reasonable satisfaction reached
after some investigation as to the genuineness and bona
fides of a complaint and a reasonable belief both as to the
person’s complicity and even so as to the need to effect
arrest. Denying a person of his liberty is a serious matter.
The recommendations of the Police Commission merely
reflect the constitutional concomitants of the fundamental
right to personal liberty and freedom. A person is not
liable to arrest merely on the suspicion of complicity in an
offence. There must be some reasonable justification in
the opinion of the officer effecting the arrest that such
arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer
issues notice to person to attend the Station House and
not to leave the Station without permission would do.”
100) The registration of FIR under Section 154 of the Code
and arrest of an accused person under Section 41 are two
entirely different things. It is not correct to say that just
because FIR is registered, the accused person can be
arrested immediately. It is the imaginary fear that “merely
because FIR has been registered, it would require arrest of
the accused and thereby leading to loss of his reputation”
and it should not be allowed by this Court to hold that
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registration of FIR is not mandatory to avoid such
inconvenience to some persons. The remedy lies in strictly
enforcing the safeguards available against arbitrary arrests
made by the police and not in allowing the police to avoid
mandatory registration of FIR when the information
discloses commission of a cognizable offence.
101) This can also be seen from the fact that Section 151 of
the Code allows a police officer to arrest a person, even
before the commission of a cognizable offence, in order to
prevent the commission of that offence, if it cannot be
prevented otherwise. Such preventive arrests can be valid
for 24 hours. However, a Maharashtra State amendment to
Section 151 allows the custody of a person in that State
even for up to a period of 30 days (with the order of the
Judicial Magistrate) even before a cognizable offence is
committed in order to prevent commission of such offence.
Thus, the arrest of a person and registration of FIR are not
directly and/or irreversibly linked and they are entirely
different concepts operating under entirely different
parameters. On the other hand, if a police officer misuses
his power of arrest, he can be tried and punished under
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Section 166.
102) Besides, the Code gives power to the police to close a
matter both before and after investigation. A police officer
can foreclose an FIR before an investigation under Section
157 of the Code, if it appears to him that there is no
sufficient ground to investigate the same. The Section itself
states that a police officer can start investigation when he
has a ‘reason to suspect the commission of an offence’.
Therefore, the requirements of launching an investigation
under Section 157 of the Code are higher than the
requirement under Section 154 of the Code. The police
officer can also, in a given case, investigate the matter and
then file a final report under Section 173 of the Code
seeking closure of the matter. Therefore, the police is not
liable to launch an investigation in every FIR which is
mandatorily registered on receiving information relating to
commission of a cognizable offence.
103) Likewise, giving power to the police to close an
investigation, Section 157 of the Code also acts like a check
on the police to make sure that it is dispensing its function
of investigating cognizable offences. This has been recorded
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in the 41st Report of the Law Commission of India on the
Code of Criminal Procedure, 1898 as follows :
“14.1…….If the offence does not appear to be serious and
if the station-house officer thinks there is no sufficient
ground for starting an investigation, he need not
investigate but, here again, he has to send a report to the
Magistrate who can direct the police to investigate, or if
the Magistrate thinks fit, hold an inquiry himself.”
“14.2. A noticeable feature of the scheme as outlined
above is that a Magistrate is kept in the picture at all
stages of the police investigation, but he is not authorized
to interfere with the actual investigation or to direct the
police how that investigation is to be conducted.”
Therefore, the Scheme of the Code not only ensures that the
time of the police should not be wasted on false and
frivolous information but also that the police should not
intentionally refrain from doing their duty of investigating
cognizable offences. As a result, the apprehension of misuse
of the provision of mandatory registration of FIR is
unfounded and speculative in nature.
104) It is the stand of Mr. Naphade, learned senior counsel
for the State of Maharashtra that when an innocent person
is falsely implicated, he not only suffers from loss of
reputation but also from mental tension and his personal
liberty is seriously impaired. He relied on the Maneka
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Gandhi (supra), which held the proposition that the law
which deprives a person of his personal liberty must be
reasonable both from the stand point of substantive as well
as procedural aspect is now firmly established in our
Constitutional law. Therefore, he pleaded for a fresh look at
Section 154 of the Code, which interprets Section 154 of the
Code in conformity with the mandate of Article 21.
105) It is true that a delicate balance has to be maintained
between the interest of the society and protecting the liberty
of an individual. As already discussed above, there are
already sufficient safeguards provided in the Code which
duly protect the liberty of an individual in case of
registration of false FIR. At the same time, Section 154 was
drafted keeping in mind the interest of the victim and the
society. Therefore, we are of the cogent view that mandatory
registration of FIRs under Section 154 of the Code will not
be in contravention of Article 21 of the Constitution as
purported by various counsel.
Exceptions:
106) Although, we, in unequivocal terms, hold that Section
85
154 of the Code postulates the mandatory registration of
FIRs on receipt of all cognizable offence, yet, there may be
instances where preliminary inquiry may be required owing
to the change in genesis and novelty of crimes with the
passage of time. One such instance is in the case of
allegations relating to medical negligence on the part of
doctors. It will be unfair and inequitable to prosecute a
medical professional only on the basis of the allegations in
the complaint.
107) In the context of medical negligence cases, in Jacob
Mathew (supra), it was held by this Court as under:
“51. We may not be understood as holding that doctors
can never be prosecuted for an offence of which rashness
or negligence is an essential ingredient. All that we are
doing is to emphasise the need for care and caution in the
interest of society; for, the service which the medical
profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting
doctors from frivolous or unjust prosecutions. Many a
complainant prefer recourse to criminal process as a tool
for pressurising the medical professional for extracting
uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.
52. Statutory rules or executive instructions
incorporating certain guidelines need to be framed and
issued by the Government of India and/or the State
Governments in consultation with the Medical Council of
India. So long as it is not done, we propose to lay down
certain guidelines for the future which should govern the
prosecution of doctors for offences of which criminal
rashness or criminal negligence is an ingredient. A private
complaint may not be entertained unless the complainant
86
has produced prima facie evidence before the court in the
form of a credible opinion given by another competent
doctor to support the charge of rashness or negligence on
the part of the accused doctor. The investigating officer
should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent
and competent medical opinion preferably from a doctor
in government service, qualified in that branch of medical
practice who can normally be expected to give an
impartial and unbiased opinion applying the Bolam9 test
to the facts collected in the investigation. A doctor
accused of rashness or negligence, may not be arrested in
a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary for
furthering the investigation or for collecting evidence or
unless the investigating officer feels satisfied that the
doctor proceeded against would not make himself
available to face the prosecution unless arrested, the
arrest may be withheld.”
108) In the context of offences relating to corruption, this
Court in P. Sirajuddin (supra) expressed the need for a
preliminary inquiry before proceeding against public
servants.
109) Similarly, in Tapan Kumar Singh (supra), this Court
has validated a preliminary inquiry prior to registering an
FIR only on the ground that at the time the first information
is received, the same does not disclose a cognizable offence.
110) Therefore, in view of various counter claims regarding
registration or non-registration, what is necessary is only
that the information given to the police must disclose the
commission of a cognizable offence. In such a situation,
87
registration of an FIR is mandatory. However, if no
cognizable offence is made out in the information given,
then the FIR need not be registered immediately and
perhaps the police can conduct a sort of preliminary
verification or inquiry for the limited purpose of ascertaining
as to whether a cognizable offence has been committed.
But, if the information given clearly mentions the
commission of a cognizable offence, there is no other option
but to register an FIR forthwith. Other considerations are
not relevant at the stage of registration of FIR, such as,
whether the information is falsely given, whether the
information is genuine, whether the information is credible
etc. These are the issues that have to be verified during the
investigation of the FIR. At the stage of registration of FIR,
what is to be seen is merely whether the information given
ex facie discloses the commission of a cognizable offence. If,
after investigation, the information given is found to be
false, there is always an option to prosecute the
complainant for filing a false FIR.
Conclusion/Directions:
88
111) In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154
of the Code, if the information discloses commission
of a cognizable offence and no preliminary inquiry is
permissible in such a situation.
(ii) If the information received does not disclose a
cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted
only to ascertain whether cognizable offence is
disclosed or not.
(iii) If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In
cases where preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure must
be supplied to the first informant forthwith and not
later than one week. It must disclose reasons in
brief for closing the complaint and not proceeding
further.
(iv) The police officer cannot avoid his duty of
registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do
89
not register the FIR if information received by him
discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but
only to ascertain whether the information reveals
any cognizable offence.
(vi) As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts
and circumstances of each case. The category of
cases in which preliminary inquiry may be made are
as under:
(a)Matrimonial disputes/ family disputes
(b)Commercial offences
(c) Medical negligence cases
(d)Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over
3 months delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
90
preliminary inquiry.
(vii) While ensuring and protecting the rights of the
accused and the complainant, a preliminary inquiry
should be made time bound and in any case it
should not exceed 7 days. The fact of such delay
and the causes of it must be reflected in the General
Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary
is the record of all information received in a police
station, we direct that all information relating to
cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be
mandatorily and meticulously reflected in the said
Diary and the decision to conduct a preliminary
inquiry must also be reflected, as mentioned above.
91
112) With the above directions, we dispose of the reference
made to us. List all the matters before the appropriate
Bench for disposal on merits.
………………………………CJI.
(P. SATHASIVAM)
………….……………………J.
(DR. B.S. CHAUHAN)
………….………………………J.
(RANJANA PRAKASH DESAI)
……….………………………J.
(RANJAN GOGOI)
………….……………………J.
(S.A. BOBDE)
NEW DELHI;
NOVEMBER 12, 2013.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1651 OF 2013
[Arising out of S.L.P.(Crl.)No.6191 of 2011]

 
Somnath Sarkar ..Appellant
Versus
Utpal Basu Mallick & Anr. ….Respondents

 

 

 
J U D G M E N T

 
VIKRAMAJIT SEN, J.

 
1. Leave granted. The Appellant before us makes what is essentially
a mercy plea – to reduce the sum of Rs.80,000/- imposed on him by way
of compensation in lieu of the six months sentence of incarceration
imposed by the Metropolitan Magistrate, Calcutta. The Appellant has
admittedly issued a cheque in favour of the Respondent No.1-
complainant for a sum of Rs.69,500/-, which cheque on presentation was
dishonourned with the endorsement ‘insufficient funds’. After due
compliance with the statutory provisions contained in the Negotiable
Instruments Act, 1881 (for short, ‘N.I. Act’) prosecution was
commenced and the aforementioned punishment under Section 138 thereof
came to be passed. The payment of compensation amounting to
Rs.80,000/- has admittedly been received by the complainant. The
Appellant preferred an appeal to the Additional District & Sessions
Judge, Calcutta who by judgment dated 5.7.2004 dismissed the appeal
and ordered the Appellant to surrender within 15 days. In these
circumstances, Criminal Revision Record No.2447 of 2004 was filed in
the High Court of Calcutta which was pleased to substitute the six
months’ sentence by an additional payment of Rs.69,500/-. C.R.R.
No.2447 of 2004 was heard and decided along with C.R.R. No.2865 of
2004 also filed by the Appellant. Accordingly, as against the cheque
amount of Rs.69,500/- the Appellant is liable to the extent of
Rs.1,49,500/-. Faced with the prospects of jail the Appellant had
earlier agreed to payment of the additional sum of Rs.80,000/- and for
these reasons his plea for reduction thereto was turned down by the
High Court in the impugned order. The Appellant was directed to pay a
sum of Rs.19,500/- by May 31, 2011 and the balance of Rs.50,000/- in
five equal instalments thereafter. Unfortunately, despite repeated
readings of the Orders and related documents, the total liability of
the Appellant is not clear as also the payments made till date.
2. Although the learned counsel for the complainant has appeared
before us and has endeavoured to persuade us to uphold the impugned
order, we find it unnecessary to hear him since the complainant has
indubitably already received the sum of the dishonourned cheque
alongwith the compensation thereon aggregating Rupees Eighty Thousand.
3. It seems to us that since the Appellant has already faced
prosecution in the Magistracy in which he presented virtually no
defence, and has thereafter filed an appeal before the Sessions Court,
and subsequently two Revisions before the High Court, the ends of
justice will be met, were he be directed to pay a sum of Rs.20,000/-
only, in default, of which he would be liable to undergo the
punishment of simple imprisonment for a term of six months as imposed
by the aforementioned Magistrate. The said payment should be made
within eight weeks.
4. As already expressed, the language employed by the High Court in
the impugned order raises a doubt as to the total liability of the
Appellant. A perusal of the sentence passed by the Trial Court as
well as the Sessions Judge while dismissing the Appeal also does not
completely clarify the position. The cheque amount is Rs.69,500/- and
in this regard a sum of Rs.80,000/- has been directed towards
compensation which, by virtue of Section 357(3), Code of Criminal
Procedure (Cr.P.C.) would be receivable by the complainant. It
appears that this sum of Rs.80,000/- has been received by the
complainant. The use of the word, ‘additional sum’ in the impugned
order has led to considerable confusion. To put the matter finally at
rest, we hold that the total compensation payable under Section 138 of
the N.I. Act read with Section 357(3), Cr.P.C. is Rs.80,000/-. i.e.,
the cheque amount of Rs.69,500/- together with Rs.10,500/- which may
be seen as constituting interest on the dishonoured cheque. In the
arguments addressed before us there appears to be no controversy that
this sum has been duly paid to the Respondent-complainant. A reading
of the impugned order appears to indicate that the payment of further
sum of Rs.69,500/-, in the instalments indicated in that order would
be over and above the said sum of Rs.80,000/-. This would violate
Section 138 of the N.I. Act inasmuch as it would exceed the double of
the cheque amount. This leads us to conclude that the intention of
the High Court was that upon deposit/payment of the further sum of
Rs.69,500/- (in addition to the earlier sum of Rs.80,000/-), the
sentence of imprisonment for six months would stand withdrawn.
Learned counsel for the Appellant has fervently submitted that the
Appellant is a man of limited financial means and this position has
not been controverted. Palpably, the convict has filed appeals all
the way to the Apex Court which would have entailed further expenses
of no mean measure. We think that with the receipt of Rs.80,000/-,
the complainant has received compensation for the dishonoured cheque
as per the adjudication of the Trial Court. In these circumstances,
any further payment would be in the nature of fine. Accordingly, we
clarify that the Appellant must pay a sum of Rs.80,000/- receivable by
the complainant within four weeks from today, if not already paid.
The Appellant is also sentenced to payment of a fine of Rs.20,000/-,
payable within eight weeks from today, and on the failure to make this
payment, would be liable for imprisonment for six months. The Appeal
is allowed in these terms.

 

……………………………J.
[T.S. THAKUR]

 
………………….…J.
[VIKRAMAJIT SEN]
New Delhi
October 07, 2013

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1651 OF 2013
(Arising out of S.L.P. (Crl.) No.6191 of 2011)

Somnath Sarkar …Appellant

Versus
Utpal Basu Mallick & Anr. …Respondents
J U D G M E N T
T.S. THAKUR, J.
I have had the advantage of going through the order proposed by my
esteemed Brother Vikramajit Sen, J. While I entirely agree that the order
passed by the High Court directing payment of a sum of Rs.69,500/- over and
above Rs.80,000/- already paid under the orders of the Court to the
complainant towards compensation needs to be modified to bring the same in
tune with Section 138 of Negotiable Instruments Act, 1881, I would like to
add a few words of my own in support of that view. Before I do that, I may
briefly set out the factual backdrop in which the appellant came to be
prosecuted and convicted under the provision mentioned above.
The appellant, who is the proprietor of M/s Tarama Medical Centre,
Tarakeswar, Hooghly, issued a cheque in favour of the
respondent/complainant bearing no.419415 dated 6th September, 1999 drawn on
SBI, Tarakeswar Branch for Rs.69,500/- towards discharge of existing
liabilities. When the cheque was presented by the complainant through his
banker on 6th September, 1999 it was dishonoured for “insufficient funds”,
which dishonour was communicated to the complainant on 7th October, 1999.
The complainant respondent issued a demand notice, which was received by
the accused appellant within the prescribed limitation period. However,
since the accused failed to repay the amount within time, the complainant
filed a complaint under Section 138 of the Negotiable Instruments Act, 1881
on 9th December, 1999.
The Metropolitan Magistrate, 6th Court, Calcutta convicted the
appellant for the offence under Section 138, Negotiable Instruments Act and
sentenced him to six months simple imprisonment and to pay compensation of
Rs.80,000/- under Section 357(3) CrPC vide order dated 10th December, 2003
in Case No.C-4490/99. Both the conviction and sentence were upheld by the
Additional District & Sessions Judge of the Fast Track Court in appeal vide
order dated 5th July, 2004. In a revision petition filed against the said
two orders, the High Court upheld the conviction, but imposed an additional
fine of Rs.69,500/- (cheque amount) in lieu of six months simple
imprisonment awarded by the Metropolitan Magistrate. That the appellant
has paid the compensation amount of Rs.80,000/- in instalments of
Rs.30,000/- and Rs.50,000/- is not disputed before us and is evidenced by
an affidavit dated 20th November, 2006 filed in CRR No.2447 of 2004 before
the Calcutta High Court besides a receipt dated 14th February, 2008
respectively, which are on record.
The only question that falls for our determination in the above
backdrop is whether the High Court was justified in directing payment of an
additional fine of Rs.69,500/- which happens to be the cheque amount also,
having regard to the fact that the appellant has already paid the sum of
Rs.80,000/- to the complainant towards compensation in obedience to the
order made by the Metropolitan Magistrate. There is no gainsaying that the
High Court could have sentenced the appellant to imprisonment extending up
to two years and/or to payment of fine equivalent to twice the cheque
amount. This is evident from the provisions of Section 138 which reads as
under:

“138. Dishonour of cheque for insufficiency, etc., of funds in
the account. Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of
money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability,
is returned by the bank unpaid. either because of the amount of
money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank, such
person shall be deemed to have committed an offence and shall,
without prejudice. to any other provision of this Act, be
punished with imprisonment for a term which may extend to one
year, or with fine which may extend to twice the amount of the
cheque, or with both: Provided that nothing contained in this
section shall apply unless-

(a) the cheque has been, presented to the bank within a period
of six months from the date on which it is drawn or within the
period of its validity, whichever is earlier;
(b) the payee or the holder in due course. of the cheque as the
case may be, makes a demand for the payment of the said amount
of money by giving a notice, in writing, to the drawer of the
cheque, within fifteen days of the receipt of information by him
from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to the
holder in due course of the cheque, within fifteen days of the
receipt of the said notice. Explanation.- For the purposes of
this section,” debt or other liability” means a legally
enforceable debt or other liability.”
(emphasis supplied)

 

In as much as the High Court set aside the sentence of six months
simple imprisonment awarded to the appellant there is no quarrel nor any
challenge mounted before us. That part of the order could be assailed by
the complainant who has not chosen to do so. Whether or not the High Court
was justified in setting aside the sentence of imprisonment awarded to the
appellant is, therefore, a non-issue before us. Having said that we have
no hesitation in adding that the High Court may have indeed been justified
in setting aside the sentence of imprisonment awarded to the appellant in
the facts and circumstances of the case. We say so having regard to a three-
Judge Bench decision of this Court in Damodar S. Prabhu v. Syed Babalal H.
(2010) 5 SCC 663 where this Court briefly examined the object sought to be
achieved by the provisions of Section 138 and the purpose underlying the
punishment provided therein. This Court has held that unlike other crimes,
punishment in Section 138 cases is meant more to ensure payment of money
rather than to seek retribution. The Court said:
“17….Unlike that for other forms of crime, the punishment here
(in so far as the complainant is concerned) is not a means of
seeking retribution, but is more a means to ensure payment of
money. The complainant’s interest lies primarily in recovering
the money rather than seeing the drawer of the cheque in jail.
The threat of jail is only a mode to ensure recovery. As against
the accused who is willing to undergo a jail term, there is
little available as remedy for the holder of the cheque.”

(emphasis supplied)
This Court also took note of the number of cases involving dishonor of
cheques choking the criminal justice system of this country, especially at
the level of the Magisterial Courts, and held that dishonor of cheque being
a regulatory offence, aimed at ensuring the reliability of negotiable
instruments, the provision for imprisonment extending up to two years was
only intended to ensure quick recovery of the amount payable under the
instrument. The following passages from the decision are in this regard
apposite:
“4…It is quite evident that the legislative intent was to
provide a strong criminal remedy in order to deter the
worryingly high incidence of dishonour of cheques. While the
possibility of imprisonment up to two years provides a remedy of
a punitive nature, the provision for imposing a `fine which may
extent to twice the amount of the cheque’ serves a compensatory
purpose. What must be remembered is that the dishonour of a
cheque can be best described as a regulatory offence that has
been created to serve the public interest in ensuring the
reliability of these instruments. The impact of this offence is
usually confined to the private parties involved in commercial
transactions.
5. Invariably, the provision of a strong criminal remedy has
encouraged the institution of a large number of cases that are
relatable to the offence contemplated by Section 138 of the Act.
So much so, that at present a disproportionately large number of
cases involving the dishonour of cheques is choking our criminal
justice system, especially at the level of Magistrates’ Courts.
As per the 213th Report of the Law Commission of India, more
than 38 lakh cheque bouncing cases were pending before various
courts in the country as of October 2008. This is putting an
unprecedented strain on our judicial system.”
(emphasis supplied)
We do not consider it necessary to examine or exhaustively enumerate
situations in which Courts may remain content with imposition of a fine
without any sentence of imprisonment. There is considerable judicial
authority for the proposition that the Courts can reduce the period of
imprisonment depending upon the nature of the transaction, the bona fides
of the accused, the contumacy of his conduct, the period for which the
prosecution goes on, the amount of the cheque involved, the social strata
to which the parties belong, so on and so forth. Some of these factors may
indeed make out a case where the Court may impose only a sentence of fine
upon the defaulting drawer of the cheque. There is for that purpose
considerable discretion vested in the Court concerned which can and ought
to be exercised in appropriate cases for good and valid reasons. Suffice it
to say that the High Court was competent on a plain reading of Section 138
to impose a sentence of fine only upon the appellant. In as much as the
High Court did so, it committed no jurisdictional error. In the absence of
a challenge to the order passed by the High Court deleting the sentence of
imprisonment awarded to the appellant, we do not consider it necessary or
proper to say anything further at this stage.
Coming then to the question whether the additional amount which the
High Court has directed the appellant to pay could be levied in lieu of the
sentence of imprisonment, we must keep two significant aspects in view.
First and foremost is the fact that the power to levy fine is circumscribed
under the statute to twice the cheque amount. Even in a case where the
Court may be taking a lenient view in favour of the accused by not sending
him to prison, it cannot impose a fine more than twice the cheque amount.
That statutory limit is inviolable and must be respected. The High Court
has, in the case at hand, obviously overlooked the statutory limitation on
its power to levy a fine. It appears to have proceeded on the basis as
though payment of compensation under Section 357 of CrPC is different from
the power to levy fine under Section 138, which assumption is not correct.
The second aspect relates precisely to the need for appreciating that
the power to award compensation is not available under Section 138 of
Negotiable Instruments Act. It is only when the Court has determined the
amount of fine that the question of paying compensation out of the same
would arise. This implies that the process comprises two stages. First,
when the Court determines the amount of fine and levies the same subject to
the outer limit, if any, as is the position in the instant case. The second
stage comprises invocation of the power to award compensation out of the
amount so levied. The High Court does not appear to have followed that
process. It has taken payment of Rs.80,000/- as compensation to be distinct
from the amount of fine it is imposing equivalent to the cheque amount of
Rs.69,500/-. That was not the correct way of looking at the matter.
Logically, the High Court should have determined the fine amount to be paid
by the appellant, which in no case could go beyond twice the cheque amount,
and directed payment of compensation to the complainant out of the same.
Viewed thus, the direction of the High Court that the appellant shall pay a
further sum of Rs.69,500/- does not appear to be legally sustainable as
rightly observed by my erudite Brother Vikramajit Sen, J. I, therefore,
entirely agree with my Brother’s view that payment of a further sum of
Rs.20,000/- towards fine, making a total fine of Rs.1,00,000/- (Rupees one
lac) out of which Rs.80,000/- has already been paid as compensation to the
complainant, should suffice. The amount of Rs.20,000/- (Rupees twenty
thousand) now directed to be paid shall not go to the complainant who is,
in our view, suitably compensated by the amount already received by him.
In the event of failure to pay the additional amount of Rs.20,000/- the
appellant shall undergo imprisonment for a period of six months. With these
words, I concur with the order proposed by Brother Vikramajit Sen, J.
………………….……….…..…J.
(T.S. Thakur)
New Delhi
October 7, 2013
———————–
15

 

 

“According to the prosecution the appellant is guilty of the said
offence for having caused the death of one Ramayan Prasad, who
was present in the marriage ceremony of one Kaushalya, daughter
of Shyam Sunder. The incident took place on 22.05.1998
in the courtyard (aangan) inside the house of Shyam Sunder,
father of the bride, where around 30 people were present to
attend the ceremony while about 60 people were outside the house
having snacks. The appellant was sitting at one side of the
courtyard in the verandah on a trunk box. Four persons, namely,
Hanuman Prasad, Ram Sewak, Mangal Singh and the appellant
–Kunwar Pal, had brought double barrel guns, ostensibly for
celebration. Ramayan Prasad prohibited them from firing but
they did not listen. Due to negligent firing a cartridge
hit the neck of the deceased, who fell down. The deceased was
taken to Gadarpur Government Hospital in a Tractor
Trolley where a doctor declared him dead. Ram Sewak ran
away from the spot leaving behind his double barrel gun.”

 

 

—————————————————————————————————————————————-

 

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1643 OF 2013
[Arising out of S.L.P. (Crl.) No. 2792 of 2013]

 
Kunwar Pal …. Appellant
Versus

State of Uttarakhand …. Respondent

 

 
1 JUDGMENT

 
S. A. BOBDE, J.
1. The appellant has approached this Court challenging the
concurrent finding of the Trial Court and the High Court
convicting and sentencing him to rigorous life imprisonment
under Section 304 of the Indian Penal Code, 1860 [for short
‘IPC’] and imposing a fine of Rs. 1,000/-, in default, to
undergo further imprisonment for one year.
2. According to the prosecution the appellant is guilty of the said
offence for having caused the death of one Ramayan Prasad, who
was present in the marriage ceremony of one Kaushalya, daughter
of Shyam Sunder. The incident took place on 22.05.1998
in the courtyard (aangan) inside the house of Shyam Sunder,
father of the bride, where around 30 people were present to
attend the ceremony while about 60 people were outside the house
having snacks. The appellant was sitting at one side of the
courtyard in the verandah on a trunk box. Four persons, namely,
Hanuman Prasad, Ram Sewak, Mangal Singh and the appellant
–Kunwar Pal, had brought double barrel guns, ostensibly for
celebration. Ramayan Prasad prohibited them from firing but
they did not listen. Due to negligent firing a cartridge
hit the neck of the deceased, who fell down. The deceased was
taken to Gadarpur Government Hospital in a Tractor
Trolley where a doctor declared him dead. Ram Sewak ran
away from the spot leaving behind his double barrel gun.
Mangal Singh ran away with his double barrel gun. Hanuman
Prasad and the appellant did not run away.
3. A first information report (FIR) was lodged on the same day i.e. on
22.05.1998 by one Kamlesh Kumar nephew of Ramayan Prasad, the
deceased. In the FIR the informant alleged that three persons had brought
guns and though prohibited they fired their gun. Due to negligent firing a
cartridge hit the neck of the Ramayan Prasad, who fell down. The person
who fired and the other instigators were caught by the villagers, who beat
them. He named the appellant – Kunwar Pal. He further stated that from
one barrel of the gun one empty cartridge was found and from the other
barrel a live cartridge was found. He further stated that Ram Sewak and
Mangal Singh, who were Barati, had fired from their guns and ran away. Ram
Sewak left behind his gun at the spot.
4. After conclusion of the investigation, a charge sheet was filed naming
the appellant and one Hanuman Prasad under Section 304 read with Section
120-B IPC.
5. The learned trial Judge recorded the evidence and heard the matter and
convicted the appellant as aforesaid on the basis of the statements
recorded from PW-1, PW-2, PW-4, PW-5 and PW-6. The High Court dismissed
the appeal carried by the appellant and confirmed the finding of the
learned Trial Judge.
6. Shri Jayant Bhushan, learned senior counsel, appearing for the
appellant submitted that the impugned judgment as well as the judgment of
the Trial Court is erroneous and illegal. According to the learned counsel
no attempt was made by the prosecution to co-relate the fatal shot,
which killed Ramayan Prasad with the gun of the appellant. No Ballistic
Expert was consulted. According to the learned counsel this was
crucial since even according to the prosecution 3 people had been
firing from their gun and there was absolutely no motive for the appellant
to kill Ramayan Prasad. Assuming without admitting that the appellant was
guilty no reasons whatsoever have been recorded by the High Court
for coming to the conclusion that the appellant is liable to be
convicted and sentenced under Part I of Section 304 of the IPC instead of
Part II of that section. Without prejudice it is submitted assuming
that the appellant is responsible for causing the death of the deceased it
can only be attributed to a rash and negligent act within the meaning of
Section 304A of the IPC. On the other hand, learned counsel for the
prosecution supported the conviction and sentence. According to the
learned counsel it is established that the appellant was carrying
a gun and had fired it. There was no reason for him to carry a gun to a
celebration of a marriage and it has been rightly found that he did so only
with the intention of killing.
7. We have heard the learned counsel for the parties and perused the
record. The prosecution has mainly relied on the FIR and the deposition of
PW-2, who is the nephew of the deceased and PW-1, who was the priest called
for performing the marriage rites. A perusal of the evidence of PW-2, who
also lodged the FIR, shows that at least 3 persons were firing from 3 guns.
Though they were prohibited by his uncle, they continued firing. One shot
hit the neck of his uncle. Ram Sewak ran away leaving his gun. Mangal
Singh ran away with his gun. He identified the gun used by the
appellant. He also stated that one empty and one live cartridge were found
in the barrels of gun of Ram Kunwar. He stated that his uncle, the
deceased, was sitting facing the east and he was sitting facing the
west. From this evidence, it is not at all clear that he saw the appellant
or anyone else firing. He does not say he saw. It is difficult to read
the deposition of this witness to mean that he saw the appellant firing at
his uncle or anyone else in particular. The witness does not
state where the other persons, who were also firing, were located and in
which direction they were firing.
8. PW-1, the priest, states that he was invited to perform the marriage
rituals of the daughter of Shyam Sunder and the incident took place in the
courtyard where the wedding rituals were to be performed. He deposed that
he heard firing and in two-three minutes a shot from Kunwar Pal hit the
right side of neck of the deceased. This happened though Ramayan Prasad
had asked the gun toting guests not to fire. According to this witness,
the appellant was instigated by Ram Sewak and Hanuman Prasad to
fire. Thereafter accused Ram Sewak and Hanuman Prasad were caught with a
gun on the spot. It is difficult from the evidence of this witness to
infer the veracity of his claim that it was the cartridge of Kunwar Pal
that hit the deceased. He does not say whether all those firing from
their gun were in his field of vision and whether he was watching each
person. At another place he said that he was waiting for the bride when he
“heard” the sound of fire. He did not say he saw the firing. PW-6, the
investigating officer, deposed that he identified the live cartridge and
empty cartridge shown to him and that he obtained the statement of FIR
writer, namely, Rishi Pal Singh and complainant Kamlesh Kumar. He deposed
that on the day of the incident he recorded the statement of
accused persons, appellant- Kunwar Pal and Hanuman Prasad. He inspected
the place of incident and prepared a site plan. He stated that he
investigated the matter against Ram Sewak and Mangal Singh, who had run
away. He said that he does not know from whom he enquired nor their
details were mentioned in the case diary. He said that he had not taken
the guns of Ram Sewak and Mangal Singh in his possession. He said that gun
of the accused person was sent to the Ballistic Expert but he does not
remember the report. Then he said that he does not remember whether the
guns were sent or not to the Ballistic Expert. It is apparent from
the deposition that the investigation was slipshod and careless.
Why, without investigation about the notice of the others, the I.O. only
chose to proceed against the appellant is not known. Why a ballistic
report was not obtained is not known.
9. From the evidence on record, we find much substance in the submissions
made on behalf of the appellant. It is difficult to accept that the shot
which killed the deceased came from the gun of the appellant only. This
assumes importance because admittedly there were three other persons in the
ceremony, who were firing their gun. It is not possible therefore
to attribute the act of killing to the appellant, leave alone attributing
any intention to import causing the death of the deceased. The High
Court in its judgment has found intention to kill only with the observation
that “a person, who goes to holy ceremony along with DBBL gun, which is
used for killing animals, must be said to be going there with the intention
to create ruckus and to kill someone in the holy ceremony. What for the
DBBL gun was taken to the marriage ceremony then? The obvious inference
was that the same was carried to the ceremony with a view to create wild
disorder (pandemonium) and to do some harm to some people.” This
observation is not sufficient to attribute the intention to kill a
particular person. It is also made in disregard of the practice in this
part of the country to use guns while celebrating marriages in some
communities. We must say at once that we do not mean to approve of this
practice in any way. It is not possible to agree with the High Court that
in the instant case the gun was carried to the marriage ceremony only
to kill someone.
10. In these circumstances, we find that the intention of the appellant to
kill the deceased, if any, has not been proved beyond a reasonable doubt
and in any case the appellant is entitled to the benefit of doubt which is
prominent in this case. It is not possible therefore to sustain the
sentence under Section 304 Part I of the IPC, which requires that the act
by which death is caused, must be done with the intention of causing death
or with the intention of causing such bodily injury as is likely to cause
death. Though it is not possible to attribute intention it is equally not
possible to hold that the act was done without the knowledge that it is
likely to cause death. Everybody, who carries a gun with live cartridges
and even others know that firing a gun and that too in the presence of
several people is an act, is likely to cause death, as indeed it did. Guns
must be carried with a sense of responsibility and caution and are not
meant to be used in such places like marriage ceremonies.
11. It was argued by Shri Jayant Bhushan, learned senior counsel that the
appellant might at the most, be guilty of doing a rash and negligent act
not amounting to culpable homicide under section 304A. Section 304A reads
as follows:
“304A. Causing death by negligence – Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with
both.”
12. It is not possible to accept this submission since, for an act to be
construed as an act not amounting to culpable homicide it is
necessary that the act be done without the knowledge that the act is likely
to cause death. Section 299 of the IPC reads as under:
“299. Culpable homicide.– Whoever causes death by doing an act with
the intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide.”
13. In the present case, we are of the view that the appellant is guilty
of committing the act which caused the death of the deceased since the act
was done with the knowledge that is it likely to cause death within the
meaning of Section 304 Part II of the IPC. In the circumstances, the
appeal is allowed in part, however, we reduce the sentence imposed upon the
appellant to a period of 7 (seven) years without making any
alteration in the fine amount imposed by the trial court and confirmed by
the High Court.

…………………….………………..J.

[DR. B.S. CHAUHAN]

..……………………………………J.
[S.A. BOBDE]

New Delhi,
October 8, 2013

 

Section 7 in The Prevention Of Corruption Act, 1988
7. Public servant taking gratification other than legal remuneration in respect of an official Act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanations.– (a)” Expecting to be a public servant.” If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) ” Gratification.” The word’ gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) ” Legal remuneration.” The words” legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) ” A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
—————————————————————————————————————————————-

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1041 OF 2011

(Arising out of SLP (Crl.) No. 3449/2009)

KANWARJIT SINGH KAKKAR ..Appellant Versus

STATE OF PUNJAB & ANR. ..Respondents WITH

CRIMINAL APPEAL NO. 1042 OF 2011

(Arising out of SLP (Crl.) No.4010/2009)

DR. RAJINDER SINGH CHAWLA ..Appellant Versus

STATE OF PUNJAB & ANR. ..Respondents J U D G M E N T

GYAN SUDHA MISRA, J.

Leave granted.

 

2. These appeals by special leave had been filed against the order dated 2.4.2009 passed by the High Court of Punjab and Haryana at Chandigarh in two Criminal Miscellaneous Petitions Nos. M-15695/2007 and 23037-M of 2007 for quashing FIR No.13 dated 9.4.2003 which was registered for offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and under Section 168 of the Indian Penal Code, at Police Station, Vigilance Bureau, Ludhiana but were dismissed as the learned single Judge declined to quash the proceedings against the appellants.

 

3. Relevant facts of the case under which the two cases were registered against the appellants disclose that the appellants are Medical Officers working with the State Government of Punjab against whom first information report was registered on the statement of informant/Raman Kumar alleging that he knew the appellants Dr. Rajinder Singh Chawla who was posted as Government Doctor at Dhanasu and Dr. Kanwarjit Singh Kakkar who also was serving as Government Doctor in Koom Kalan in District Ludhiana. It was alleged that both the doctors were doing private practice in the evening at Metro Road, Jamalpur and charged Rs.100/- in cash per patient as prescription fee. While Dr. Rajinder Singh Chawla checked the blood pressure of the patients Dr. Kanwarjit Singh issued 1

prescription slips and medicines to the patients after checking them properly and charged Rs.100/- from each patient. The complainant Raman Kumar got medicines from the two doctors regarding his ailment and the doctor had charged Rs.100/- as professional fee from him. The informant further stated in his FIR that as per the government instructions, the government doctors are not supposed to charge any fee from the patients for checking them as the same was contrary to the government instructions. In view of this allegation, a raid was conducted at the premises of both these doctors and it was alleged that they could be nabbed doing private practice as they were trapped receiving Rs.100/- as consultation charges from the complainant. On the basis of this, the FIR was registered against the appellants under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and under Section 168, IPC which has registered at Police Station Vigilance Bureau, Ludhiana.

4. As already stated, the appellants felt aggrieved with the case registered against them and hence filed two Criminal Miscellaneous Petitions for quashing FIR No.13 1

dated April 9, 2003 before the High Court of Punjab and Haryana at Chandigarh wherein counsel for the appellants contended that no offence is made out from the allegations in the FIR even as it stands. Substantiating the arguments, it was submitted that neither any medical instrument was recovered nor any apparatus or blood pressure checking machine or even thermometer was recovered from the residence of the appellants. It was explained that the complainant had come to the house of Dr. Kanwarjit Singh Kakkar which was under renovation and requested for treatment. It was added that on humanitarian grounds, the appellant just scribbled down the prescription on a plain paper which does not even bear the signature of the appellant.

 

5. It was also contended by learned counsel for the appellants that there is no law prohibiting government doctor from doing any act on humanitarian ground and the appellants could be alleged to have indulged in private practice only if they have deviated from the rules laid down by the State Government in this regard. In the alternative, it was contended that even if there is a deviation from 1

these rules prohibiting private practice by government doctors contrary to the government instructions, it could warrant initiation of departmental proceeding and the punishment under the Punjab Civil Services (Punishment and Appeal) Rules and not under IPC much less under the Prevention of Corruption Act.

 

6. The learned single Judge, however, was pleased to dismiss the Criminal Miscellaneous Applications refusing to quash the FIR relying on Rule 15 of the Punjab Civil Medical (State Service Class I) Rules, 1972. As per Rule 15 of the said Rules, the Government may by general or special order permit any member of the Service to engage in private service on such terms and conditions and subject to such restrictions and limitations as may be specified in the order provided that such practice does not in any way interfere with the discharge of his or their official duties. Rule 15 of the aforesaid Rules states as follows: "15. Private Practice: (1) The Government may, by general or special order, permit any member of the Service to engage in private practice on such terms and conditions and subject to such restrictions and limitations as may be specified in the order, provided that such practice does not in any way 1

interfere with the discharge of his or their official duties.

(2) Nothing contained herein shall be construed to limit or abridge the power of the Government at any time to withdraw such permission or to modify the terms on which it

is granted without assigning any cause and without payment of compensation."

 

7. The relevant question which requires determination in these appeals is whether a government doctor alleged to be doing practice can be booked within the ambit and purview of the Prevention of Corruption Act or under Indian Penal Code, or the same would amount to misconduct under the Punjab Civil Medical(State Service Class I) Rules, 1972 under Rule 15 which has been extracted above.

 

8. Learned counsel for the appellants submitted that the FIR was fit to be quashed as the case against the appellants who admittedly are government doctors could not have been registered under IPC or the Prevention of Corruption Act as Section 7 of the Prevention of Corruption Act explains `corruption’ as acceptance or `demand’ illegal gratification for doing any official act’. It was submitted that the demand/receipt of `fee’ while doing private 1

practice is not an illegal gratification for official duties. It was further submitted that even Section 13(1)(d) of the Prevention of Corruption Act does not apply since the main ingredients of this Section are:

(a) the accused must be a public servant at the time of the offence;

(b) he must have used corrupt or illegal means and obtain for himself or for any other person any valuable or pecuniary advantage; or

(c) he must have abused his position as a public servant and have obtained for himself and for any other person any valuable thing or pecuniary advantage; or (d) while holding such office he must have obtained for any other person any valuable thing or pecuniary advantage without any motive.

 

9. Learned counsel for the respondents however repelled the arguments advanced in support of the plea of the appellants and it was contended that the provisions of Prevention of Corruption Act clearly apply as the government doctors in the State of Punjab have been specifically prohibited to carry private practice under the departmental rules and as such the act of the appellants were illegal.

1

 

10. By way of a rejoinder, it was again submitted by the counsel for the appellants that it is the `departmental rules’ which bar private practice by a government doctor, hence action if any, is liable to be initiated/taken under the departmental rules which in the present case are the Punjab Civil Services (Punishment and Appeal) Rules. Rule 15 of the Punjab Civil Medical (State Service Class I) Rules, 1972 states that a government doctor may engage in practice with prior permission from the government. It was still further submitted that the FIR against the appellant has also been registered under Section 168 of the Indian Penal Code which states as follows:

"168. Public servant unlawfully engaging in trade.–Whoever, being a public servant and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both." It was submitted that this Section makes it amply clear that `private practice’ cannot be termed as `trade’, as accepting of `fee’, does not involve profit making which is an essential ingredient of the term `trade’ as held in State 1

of Gujarat vs. Maheshkumar Dheerajlal Thakkar1. The counsel further took assistance from the Punjab Government Vigilance Department ( Vigilance -3 Branch) which vide Memo No. 53/168/02-54/20094dated 23.12.2004 (T) instructed the Chief Director, Vigilance Bureau, Punjab, Chandigarh on 19.1.2005, that the cases pending against the government teachers for holding tuition classes should be withdrawn as these cases do not come within the purview of the Prevention of Corruption Act as fees demanded/accepted by a teacher in view of teaching private tuition classes can neither be termed as a corruption nor can it be said to be a demand for remuneration for some official act. It was submitted that this principle needs to be applied on all professionals on the basis of the principle of equity. The counsel also submitted on the merit of the case given out in the FIR, by urging that the appellants although wrote down the prescription on a plain paper for the complainant who had approached him for medical assistance at about 8.30 p.m. on 9.4.2003, he obliged him merely on humanitarian grounds and the raid which was conducted on the appellant’s premises, no 1 AIR 1980 SC 1167

1

recovery of medical instruments or medical apparatus was made. It was, therefore, contended that the impugned order of the High Court refusing to quash the FIR against the appellants is liable to be set aside and the FIR against the appellants should be quashed as the FIR alleging private practice by the government doctors/appellants herein is not criminal in nature but at the most would amount to a deviation from the departmental rules and hence at the most, it could be dealt with under the Punjab Civil Services (Punishment and Appeal) Rules only.

11. On a critical analysis of the arguments advanced in the light of the definition of `corruption’ defined under the Prevention of Corruption Act in its Preamble and under Section 7 of the Act, it clearly emerges that `corruption’ is acceptance or demand of illegal gratification for doing an official act. We find no difficulty in accepting the submission and endorsing the view that the demand/receipt of fee while doing private practice by itself cannot be held to be an illegal gratification as the same obviously is the amount charged towards professional remuneration. It would be preposterous in our view to 1

hold that if a doctor charges fee for extending medical help and is doing that by way of his professional duty, the same would amount to illegal gratification as that would be even against the plain common sense. If however, for the sake of assumption, it were alleged that the doctor while doing private practice as Government doctor indulged in malpractice in any manner as for instance took money by way of illegal gratification for admitting the patients in the government hospital or any other offence of criminal nature like prescribing unnecessary surgery for the purpose of extracting money by way of professional fee and a host of other circumstances, the same obviously would be a clear case to be registered under the IPC as also under the Prevention of Corruption Act which is not the case in the instant matter. The FIR sought to be quashed, merely alleges that the appellants were indulging in private practice while holding the post of government doctor which restrained private practice, and charged professional fee after examining the patients.

 

12. We however, came across a case of Raj Rajendra Singh Seth alias R.R.S. Seth vs. State of Jharkhand And 1

Anr.2, wherein a doctor who had demanded Rs.500/- for giving proper medical treatment to the complainant’s father resulted in conviction of the doctor as it was held in the circumstances of the said case that all the requisites for proving demand and acceptance of bribe were clearly established and the appellant therein was held to have been rightly convicted. However, the prosecution version in the said case disclosed that a written complaint was made to SP., CBI, Dhanbad that on 1.9.1985 one Raju Hadi, a Safai Mazdoor of the Pathological Laboratory Area -9, BCCL, Dhanbad, alleged therein that he had visited Chamodih Dispensary in connection with the treatment of his father who was examined by Dr. L.B. Sah who referred him to Central Hospital, Dhanbad. The complainant’s father was admitted in the Central Hospital and the complainant visited his ailing father who complained of lack of proper treatment and he requested him to meet the doctor concerned. The complainant met Dr. R.R.S. Seth who was treating the complainant’s father. It was alleged by the complainant therein that Dr. R.R.S. Seth demanded a sum of Rs. 500/- from the complainant for giving proper 2 (2008) 11 SCC 681

1

medical treatment to his father and also insisted that the amount be paid to the doctor on 1.9.1985. The doctor also told the complainant Raju Hadi that in case he was not available in the hospital, he should pay the amount to his ward boy Nag Narain who would pass the amount to him. Since the complainant Raju Hadi was not willing to make the payment of bribe amount to the doctor and ward boy, he lodged a complaint to the SP, CBI, Dhanbad for taking necessary action.

 

13. On the basis of this complaint, which was finally tried and resulted into conviction, came up to this Court (Supreme Court) challenging the conviction. This conviction was upheld by this Court as it was held therein that there is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from the complainant. It was, therefore, held that when the amount is found to have been passed to the public servant, the burden is on public servant to establish that it was not by way of illegal gratification. This Court held that the said burden was not discharged by the accused and hence it was held that all the requisites 1

for proving the demand and acceptance of bribe had been established and hence interference with the conviction and sentence was refused. The learned Judges in this matter had placed reliance on the case of B. Noha vs. State of Kerala3, wherein this Court took notice of the observations made in the said case at paras 10 and 11 wherein it was observed as follows:

"………….When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only

to be deduced from the facts and

circumstances obtained in the particular case."

 

14. The learned Judges also took notice of the observations made by this Court in Madhukar Bhaskarrao Joshi vs. State of Maharashtra,4 (2000) 8 SCC 571 at 577, para 12 wherein it was observed that

"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established, the 3 (2006) 12 SCC 277

4 (2000) 8 SCC 571

1

inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of

gratification. ……………………………………… …..If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."

This decision was followed by this Court in M. Narsinga Rao vs. State of A.P5..

Thus in all the cases referred to hereinabove, the amount received was held to be by way of gratification as there could be no escape from the conclusion that it would amount to corruption within the meaning of Prevention of Corruption Act as also the offence under the IPC.

15. But the most important and vital check before a public servant can be booked under the Prevention of Corruption Act, the ingredients of the offence will have to be deduced from the facts and circumstances obtained in 5 (2001) 1 SCC 691

1

the particular case. Judging the case of the appellants on this anvil, it is not difficult to notice that in the case at hand, the amount that is alleged to have been accepted even as per the allegation of the complainant/informant was not by way of gratification for doing any favour to the accused, but admittedly by way of professional fee for examining and treating the patients. However, no presumption can be drawn that it was accepted as motive or reward for doing or forbearing any official act so as to treat the receipt of professional fee as gratification much less illegal gratification. The professional fee even as per the case of the complainant/informant was that this act on the part of the accused appellants was, contrary to the government circular and the circular itself had a rider in it which stated that the government doctor could do private practice also, provided he sought permission from the government in this regard. Thus the conduct of the appellants who are alleged to have indulged in private practice while holding the office of government doctor and hence public servant at the most, could be proceeded with for departmental proceeding under the Service Rules but in 1

so far as making out of an offence either under the Prevention of Corruption Act or under the IPC, would be difficult to sustain as we have already observed that examination of patients by doctor and thereby charging professional fee, by itself, would not be an offence but as per the complaint, since the same was contrary to the government circular which instructed that private practice may be conducted by the government doctors in the State of Punjab provided permission was sought from the Government in this regard, the appellants were fit to be prosecuted. Thus, the appellants even as per the FIR as it stands, can be held to have violated only the government instructions which itself has not termed private practice as `corruption’ under the Prevention of Corruption Act merely on account of charging fee as the same in any event was a professional fee which could not have been charged since the same was contrary to the government instructions. Thus, if a particular professional discharges the duty of a doctor, that by itself is not an offence but becomes an offence by virtue of the fact that it contravenes a bar imposed by a circular or instruction of the government. In 1

that event, the said act clearly would fall within the ambit of misconduct to be dealt with under the Service Rules but would not constitute criminal offence under the Prevention of Corruption Act.

 

16. However, the question still remains whether the indulgence in private practice would amount to indulgence in `trade’ while holding the post of a government doctor and hence an offence under Section 168 of the IPC, so as to hold that it constitutes a criminal offence in which case that FIR could be held to have made out a prima facie case against the appellants under Section 168 of the IPC on the ground that the appellants who are public servants unlawfully engaged in trade. In our view, offence under Section 168 of the IPC cannot be held to have been made out against the appellants even under this Section as the treatment of patients by a doctor cannot by itself be held to be engagement in a trade as the doctors’ duty to treat patients is in the discharge of his professional duty which cannot be held to be a `trade’ so as to make out or constitute an offence under Section 168 of the IPC. As already stated, there may be cases of doctors indulging in cases of 1

medical negligence, demand or accept amount in order to incur favour on the patients which would amount to illegal gratification and hence `corruption’, and in such cases offence can most certainly be held to have been made out under the Prevention of Corruption Act also. Cases of unlawful engagement in trade by public servants can also be held to be made out under Section 168 of the IPC if the facts of a particular case indicate that besides professional discharge of duty by the doctor, he is indulging in trading activities of innumerable nature which is not expected of a medical professional as was the fact in the case referred to herein before. But if the medical professional has acted in a manner which is contrary only to the government instructions dehors any criminal activity or criminal negligence, the same would not constitute an offence either under the IPC or a case of corruption under the Prevention of Corruption Act. In our considered view, the allegation even as per the FIR as it stands in the instant case, do not 1

constitute an offence either under the Prevention of Corruption Act or under Section 168 of the IPC.

17. For the reasons discussed hereinbefore, we are pleased to set aside the impugned orders passed by the High Court and quash the FIR No.13 dated 9.4.2003 registered against the appellants as we hold that no prima facie case either under Section 168 of the IPC or Section 13 (1)(d) read with 13(2) of the Prevention of Corruption Act is made out under the prevailing facts and circumstances of the case and hence proceeding in the FIR registered against the appellants would ultimately result into abuse of the process of the Court as also huge wastage of time and energy of the Court. Hence, the respondent – State, although may be justified if it proceeds under the Punjab Civil Services (Punishment and Appeal) Rules against the appellants initiating action for misconduct, FIR registered against them under IPC or Prevention of Corruption Act is not fit to be sustained. Consequently, both the appeals are allowed.

…………………………….J

(MARKANDEY KATJU)

1

…………………………….J

(GYAN SUDHA MISRA)

New Delhi,

April 28, 201

IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision: 6.7.2012 + (Formerly Crl. Rev. 338 of 2006) WP(Crl.) No.870/2010

Sh. Vishwa Vibhuti … Petitioner versus

Central Bureau of Investigations. … Respondents Advocates who appeared in this case:

For the Petitioner : Mr.R.N.Mittal, Sr. Advocate with Mr. Pushkar Sood & Mr. Shalabh Rastogi,

Advocates

For Respondents : Mr.P.K.Sharma Standing Counsel & Mr. Uday Prakash Yadav, Advocate for the

respondent/CBI with Sh. Lalit Phular,

SI/AC-II/CBI.

CORAM:

HON’BLE MR. JUSTICE ANIL KUMAR

ANIL KUMAR, J.

1. The petitioner has impugned the order on charge dated 19th April, 2005 and the charge framed under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 by the learned Special Judge, Delhi in complaint case no. 64/1998 arising out of R.C.No. 1(A)/96 and order dated 12th April, 2006 passed by Special Judge, Delhi rejecting the application of the petitioner under Section WP (Crl.) 870 of 2010 Page 1 of 54 216 of Cr.P.C. , filed in furtherance of the order dated 16h October, 2005 passed by this Court in Revision petition No. 730/05.

2. The brief facts for comprehending the dispute in the present petition are that the petitioner while working in the capacity of Deputy Assistant Director General/Assistant Director General, Government Medical Store Depot at Hyderabad and New Delhi is alleged to have acquired disproportionate assets to the tune of Rs. 19,00,851/- during the period 1st June, 1985 to 16th June 1996, in his name as well as in the name of his family members. After investigation a charge sheet was filed by the respondent against the petitioner in the Court of Special Judge, Delhi on 13th July, 1998. The learned Special Judge vide order dated 19th April, 2005 directed framing of charge against the petitioner under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. The said order of charge was challenged by the petitioner on the ground that the order does not mention the mandate provided under Section 13(1)(e) of the Prevention of Corruption Act, 1988 through a revision petition being Crl Rev. No. 730/05, which petition was disposed of by this Court vide order dated 6th October, 2006 observing that „the trial court may, if so required amend/alter the charge to include the mandate of Section 13(1)(e) of the Act for which the petitioner if so advised may move the trial court.‟ WP (Crl.) 870 of 2010 Page 2 of 54

3. Subsequent to the order of this Court the petitioner moved an application before the trial court dated 22nd November, 2005 for reconsideration of charges. The said application was dismissed by the trial court vide order dated 12th April, 2006 holding that the submissions of the petitioner could not be appreciated at the pre-trial stage.

 

4. The petitioner has contended that charge has been framed against him not on merits and statements on record but on conjectures and surmises. It is contended that the learned trial judge while ordering framing of charge against the petitioner never gave a finding that the petitioner has assets disproportionate to his known sources of income, but proceeded on the ground that the petitioner has not intimated the Government Department about the business activities or earnings of his family members. It is contended that the learned Special Judge while framing charges proceeded on the wrong assumption that a violation of Rule 15(3) of CCS (Conduct) Rules would be considered as a breach as explained in the explanation to Section 13(1)(e) of the Prevention of Corruption Act, 1988. It is contended that the word „intimation‟ as is used in Section 13(1)(e) of the Prevention of Corruption Act, 1988 cannot be equated with the „report‟ as it occurs in rule 15(3) of the CCS (Conduct) Rules, 1964. It is further contended that the learned trial judge failed to consider the documents whereby the petitioner had WP (Crl.) 870 of 2010 Page 3 of 54 intimated his department that his wife was engaged in business including pharmaceuticals, manufacturing and purchases. It is contended that though the petitioner had intimated the Investigating Officer that he had informed the Government vide letter dated 31st September, 1991 about the business activities of his wife and daughters, the investigating officer had failed to bring it on record.

5. It is contended by the petitioner that his mother had purchased the House No. 178, Munirka Enclave, New Delhi from her own Istridhan and that the learned trial judge has erred in considering her as a person possessing property „on his behalf‟. It is also contended that the wife of the petitioner as well as his three daughters were filling independent income tax returns since the year 1985 and that the assets possessed by them were acquired by them out of their own incomes and savings. It is contended that they cannot be treated as persons possessing pecuniary resources or property on the petitioner‟s behalf. The petitioner has placed reliance on an order of the Income Tax Appellate Tribunal „C‟ Bench, Kolkata dated 31st December, 2003 wherein it was held that the assets, funds and investments by the petitioner‟s family members cannot be connected to the alleged income illegally earned by the petitioner. It is also contended that the learned Special Judge, erred in not considering the above mentioned order of the ITAT while passing the order dated 12th April, 2006. It is contended that the WP (Crl.) 870 of 2010 Page 4 of 54 learned Special Judge misinterpreted the judgment of the Hon‟ble Supreme Court in State of Orissa v. Debendra Nath Padhi 2004 (10) SCALE 50 in not considering the judgment of the ITAT. It is contended that though the Hon‟ble Supreme Court had held in Debendra Nath Padhi‟s case that at the time of framing of charge the accused has no right to produce any „material‟, the word „material‟ does not preclude a judgment of a judicial body. It is contended that a reading of Sections 74, 76, 77, 79 & 80 of the Indian Evidence Act also makes it clear that a judgment of a Court cannot fall within the ambit of the word „material. The petitioner has also relied on Janaki Ballavh Patnaik v. State of Orissa in support of his contention. It is also contended that in Debendra Nath Padhi‟s case the Supreme Court had held that the accused can produce material of unimpeachable character or sterling quality and that the width of the powers of the High Court under Section 482 of Cr.P.C. and Article 226 of the Constitution is unlimited. Relying on M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. 1998 Cri.L.J 1 it is contended that the power of superintendence and control of the High Court remains even in Revisional Jurisdiction.

6. During the pendency of the Criminal Revision Petition, the petitioner had filed and Crl.Misc App No.2310 of 2010 dated 25th February, 2010 seeking conversion of revision petition into a Writ Petition under Article 226 and 227 of the Constitution of India which WP (Crl.) 870 of 2010 Page 5 of 54 was allowed by order dated 21st May, 2010. Consequently the petition was registered as WP (Crl.) No. 870 of 2010.

 

7. The petitioner has contended that the Central Vigilance Commission in its second advice had exonerated him of the same charges as has been pressed in the present case and the ITAT also had upheld the advice of the CVC in its order dated 31st December, 2003 and therefore in view of the judgment of the Hon‟ble Supreme Court in V.K. Bhutiani v. Central Bureau of Investigation 2005 (2) JCC 764 and P.S. Rajya v. State of Bihar 1996 SCC (Cri) 897, the CBI cannot be allowed to prosecute the petitioner on the same facts.

8. It is contended that the total income of the family, excluding the income of the mother, was Rs. 78,51,491/- till 31st March, 1995 whereas the total expenses and assets of the family till 16th June, 1996 was Rs. 77,18,849/-. It is contended that the income being Rs. 1,33,642/- more than the expenses and assets, no case of disproportionate assets has been made out and therefore no charges under Section 13(1)(e) read with Section 13(2) could have been framed.

9. The learned counsel for the petitioner also contended that the charge sheet dated 27.04.1998 was issued against the petitioner and the disciplinary authority had imposed the punishment of compulsory WP (Crl.) 870 of 2010 Page 6 of 54 punishment was challenged by the petitioner in O.A No.1151 of 2004 before Central Administrative Tribunal Principal Bench. The tribunal had held that the requirement of Rule 15 (2) of CCS (CCA) was not followed and therefore the original application filed by the petitioner was allowed and the order of punishment was quashed. The concerned authorities were however given liberties, if so advised, to proceed in the matter strictly in accordance with law and rules. A copy of the order dated 16th August, 2007 passed by Central Administrative Tribunal Principal Bench in OA 1151/2004 titled as Vishwa Vibhuti Vs Union of India & ors. was produced by the learned counsel for the petitioner in the present Writ Petition.

 

10. The respondent has contended that the petitioner himself had made the acquisition of various properties in the name of his mother, his wife and three daughters. It is also contended that during the check period the three daughters of the petitioner were in education and that the petitioner‟s mother got prepared drafts after availing cheques from the account of the petitioner‟s wife and on one single day huge cash was deposited in the mother‟s account and then draft was prepared in the name of the seller of the flat in Munirka Enclave. It is also contended that the income/expenditure of the wife of the petitioner has also been considered during investigation. It is also contended that the legitimate income of the petitioner and his family members as shown in the WP (Crl.) 870 of 2010 Page 7 of 54 income tax return has been given benefit of to the tune of Rs. 18,64,246/- even though the salary received by the petitioner during the check period was only Rs. 4,98,446/-.

 

11. It is contended that in view of the „explanation‟ to Section 13(1)(e) of the Prevention Act, 1988 and the judgment of the Supreme Court in P. Nallammal & Another v. State 1999 SCC (Cri) 1133, the petitioner had to intimate his department the income acquired from any source. It is contended that a categorical statement of Shri. Harsh Malviya (PW-1) is on record to the effect that the petitioner did not intimate the competent authority regarding the business activities of his wife. As regards the letter dated 31st September, 1991 whereby the petitioner had allegedly informed his department about the business activities of his wife, the respondent has contended that the said letter was produced by the petitioner himself to the investigating officer and that it could not be proved during investigation whether the letter was received by the competent authority.

 

12. The respondent has further contended that the order passed by the learned trial Court is in consonance with the judgment of the Supreme Court in Debendra Nath Padhi‟s case (supra) and the expression „any material‟ as used in the judgment would include the WP (Crl.) 870 of 2010 Page 8 of 54 judgment of ITAT and so the petitioner has no right to place on record the judgment of the ITAT at the stage of framing of charge.

13. The respondent has further contended that the CVC is only an advisory body and the decision on the enquiry report of the CVC is subject to the decision of the competent authority and therefore it cannot be said that the CVC had exonerated the petitioner of the charge of having acquired or disposed of property in his name and in the name of family members without the knowledge of the competent authority as required vide Rule 18 of CCS (Conduct) Rules. It is further contended that the competent authority, i.e. the Govt. of India, Ministry of Health and Family Welfare did not accept the finding of the CVC and was of the view that on the principle of preponderance of probability the charge was proved against the petitioner.

 

14. It is also contended that the law laid down in Janki Ballabh Patnaik‟s case and V.K. Bhutani‟s case is not applicable to the facts and circumstances of this case. It is contended that the petitioner was found guilty of misconduct and was punished by the President of India vide order No. C.13011/31/96-Vig dated 26th May, 2003 imposing a penalty of compulsory retirement from service with immediate effect with 30% cut in pension otherwise admissible on a permanent basis. WP (Crl.) 870 of 2010 Page 9 of 54

15. The petitioner had challenged the order of compulsory retirement from service with immediate effect with 30% cut in pension otherwise admissible on a permanent basis inter alia on the grounds that the correct procedure as prescribed in Rule 15 (2) of CCS (CCA) contemplating that in case of disagreement with the findings of the enquiry officer on any article of charge, the disciplinary authority has to send the copy of the report of the enquiry officer together with its own tentative reason for disagreement. The Central administrative tribunal agreed with the contention of the petitioner that there had been violation of Rule 15 (2) of CCS (CCA) rules and therefore, had set aside the order of compulsory retirement and cut in pension, however, liberty was granted to the respondent to proceed in the matter strictly in accordance with the law and the rules by order dated 16th August, 2007 in O.A No. 1151 of 2004 titled as Vishwa Vibhuti Vs Union of India & ors.

 

16. This Court has heard the learned counsel for the parties and have also perused the documents on record and various precedents cited and relied on by the counsel for the parties. It will be appropriate to consider first the precedents relied on by the counsel for the parties.

17. In P.Nallamal Vs State rep. by Inspector of Police, JT 1999 (5) SC 410 relied on by the petitioner, some former Ministers of the Tamil Nadu government were being prosecuted before certain Special Courts WP (Crl.) 870 of 2010 Page 10 of 54 for the offence under S-13(1)(e) of the PC Act, 1988. In all these cases some of their kith and kin were also arraigned as co-accused to face the said offence r/w S-109 IPC. The issue before the court was whether the kith and kin of the ministers, being non-public servants, were liable to be prosecuted along with public servants for the offence under section 109 of IPC r/w S-13(1)(e) PC Act. The Apex Court held:- “Thus, Clause (b) of section-3(1) encompasses the offences committed in conspiracy with others or by abetment of “any of the offences” punishable under the P.C. Act. If such conspiracy or abetment of “any of the offences” punishable under the P.C. Act can be tried “only” by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the P.C. Act, or if such non- public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the court of a Special Judge having jurisdiction in the matter

18. The petitioner has also relied on State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568. The issue before the Apex Court was whether, at the time of framing of charges, the trial court can consider the material filed by the accused. The Court held:-

“…No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. The right is granted only at the stage of trial.” The Court further observed:-

“..If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the WP (Crl.) 870 of 2010 Page 11 of 54 stage of framing of charge, the defense of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defense at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence….”

Though the accused haven‟t got a right to adduce any material at the time of framing of charge, the Court observed:- “Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case”

 

19. Another precedent relied on by the petitioner is Janaki Ballav Patnaik v. State of Orissa, 1995 Cri.L.J. 1110 in which the petitioner was facing charges u/s 13(2) r/w S-13(1)(e) of the PC Act on the allegation that he was in possession of assets disproportionate to his known sources of income, to the tune of Rs. 5,49,060.31. He filed an application u/s 227 Cr.P.C. for discharge, on the ground that there was no sufficient ground to proceed against him, which was rejected. The entire basis of the petitioner‟s case in the application for discharge was that the prosecution has not taken into consideration one of the known sources of income, namely the income of the petitioner‟s wife, which would have covered the alleged disproportionate assets. The accused thereafter, invoked the writ jurisdiction of the Orissa High Court. The WP (Crl.) 870 of 2010 Page 12 of 54 issue before the Orissa High Court was „if the Court comes to the conclusion that prosecution has deliberately not taken into consideration a particular item of evidence, which if taken into account will have a vital bearing even in the matter of evaluation and finding out a prima facie case, would the Court be justified in refusing to frame charge and in calling upon the prosecution to further investigate into the matter, or to frame the charge on the materials as they stood leaving the matter for trial? The Court had observed:- “…….But at the same time, in a case coming under Section 13(1)(e) of the Act, if the prosecution ignores a material source of income of the accused which the prosecution was aware of and that income would have a vital bearing in the matter of framing of charge, then the evaluation made by the Court for satisfying itself that all the ingredients constituting the alleged offence exist becomes vitiated and in such a case, calling upon the accused to face trial would be a travesty of justice. In such a case framing a charge and calling upon the accused to go through the entire gamut of trial would tantamount to abuse of the process of Court and, therefore, this Court would be justified in interfering with the same. When charges are framed on the materials produced by the prosecution, in which case the High Court would be justified in interfering, no inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case. But the position is beyond pale of controversy that the High Court would be fully justified in interfering either to prevent the abuse of the process of court or to secure the ends of justice..”

20. In this case relied on by the petitioner it had been established that the prosecution was aware that the wife of the petitioner was a member of the Parliament and that she had received a substantial amount, Rs. 7,45,335.62 as allowances during the check period. The WP (Crl.) 870 of 2010 Page 13 of 54 prosecution did not proceed in accordance with the guidelines of the Lok Sabha Secretariat to find out the income of the petitioner‟s wife. Further when the accused produced the certificate from the Lok Sabha Secretariat along with the application for discharge, the prosecution never denied or doubted the authenticity of the same. On the above- said facts the Court was of the opinion that there has been a gross miscarriage of justice and the accused will be grossly prejudiced if the matter is not interfered with at this stage and the accused is called upon to face the trial. Therefore the High Court quashed the order of framing of charges.

 

21. Another precedent relied on by the petitioner is V.K. Bhutani v. CBI, 2005 (2) JCC 764. In this case the petitioner, a senior manager in the New Bank of India, was charged with the offence of committing conspiracy to cheat the Bank with the help of forged documents punishable u/s 120B r/w section 467/468/471 of IPC and for committing an offence punishable u/s 13(2) r/w S-13(1)(d) of the PC Act. The order of framing of charges was challenged in the revision petition. The defense put forth by the petitioner at the time of arguments on charge was that he had already been exonerated by the enquiry conducted by the Central Vigilance Commission (CVC). The Delhi High Court was of the opinion that each and every allegation against the petitioner was considered thoroughly by the CVC. The WP (Crl.) 870 of 2010 Page 14 of 54 charges in the case were also found to be based on the same allegations which were under consideration before the CVC. The Court had held:- ” If the charge could not be proved before the Central Vigilance Commission where the standard of proof was much lower it is very unlikely that the same charge could be proved in a criminal trial where the standard of proof is more stringent. If the petitioner is tried, the respondent-CBI will at best prove the factors mentioned above to indicate involvement of the petitioner in the conspiracy. The vigilance report has actually taken note of all of them and has yet exonerated the petitioner. Following the judgment of the Supreme Court in the case of P.S. Rajya v. State of Bihar (Supra), I am of the opinion that the prosecution of the petitioner will only result in nothing more than harassment. Hence the petition is allowed and the impugned orders are set aside. The petitioner is

discharged.”

 

22. In the case of P.S. Rajya v. State of Bihar, (1996) 9 SCC 1, an officer of the income-tax department despite being exonerated by the Central Vigilance Commission was being prosecuted by the CBI for offence under Sections 13(2) & 13(1)(b) of the Prevention of Corruption Act. The Supreme Court observed that the standard of proof required to be established in a criminal case is far higher than the standard of proof required to establish the guilt in a departmental proceedings. Further the Supreme Court observed that the charge in the departmental proceedings and in the criminal proceedings was one and the same and if the same could not be established in the departmental proceedings, there was lesser chance of the charge being established in a criminal trial. The Supreme Court said that the criminal proceedings would only result in harassment and, therefore, found it fit to quash the WP (Crl.) 870 of 2010 Page 15 of 54 FIR against the accused. In another case relied on by the petitioner D.S.P., Chennai v. K. Inbasagaran, 2005 X AD(SC) 368, the Income-Tax Authorities conducted a raid in the house of the accused, a senior IAS officer and recovered a huge amount of cash amounting to Rs. 30 lakhs, 7 gold biscuits weighing 819 grams, $1118 and certain documents regarding purchase of immovable properties and also fixed deposit receipts of the Bank for Rs. 25,000/- in the name of third parties. The accused was charged with the offence punishable under section 13(2) r/w S-13(1)(e) of the PC Act. The issue before the Apex Court was whether, in view of the fact that both the accused and his wife were living together, the unaccounted money which has been recovered from the house could not be said to be in exclusive possession of the accused. The Apex Court had observed:-

“……..when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money could be laid in his hands. The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income-tax Department has assessed in her hand, then in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her WP (Crl.) 870 of 2010 Page 16 of 54 by not showing in the Income-tax return and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Department, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable.”

 

23. In P.S. Rajya (supra) a departmental enquiry was conducted by the CVC and after a detailed enquiry, CVC submitted a report exonerating the accused of all charges. The report was forwarded by the department to the UPSC for its opinion. By a long report, the UPSC concurred with the conclusion of exonerating the appellant of all charges. Accepting the report of the UPSC, the President passed final orders in favor of the appellant. The appellant then moved the High Court u/s 482 of Cr.P.C for quashing of the cognizance of charge. The High Court dismissed the petition holding that the issues raised before it have to be gone into in the final proceedings and those cannot be gone into at the preliminary stage. The Apex Court observed:- WP (Crl.) 870 of 2010 Page 17 of 54 “At the outset we may point out that the learned Counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings.”

The Court was of the opinion that the case could be brought under more than one head enunciated in Bhajan Lal‟s case and quashed the proceedings.

 

24. Gulab Chand Sharma v. Shri. H.P. Sharma, ILR (1974) 1 Delhi 190 is another precedent relied on by the petitioner in which two complaints were filed against the accused, one by the Income Tax Officer and the other by the Commissioner of Income Tax for having committed offences u/s-277 Income Tax Act, 1961 and sections 193, 467 and 471 of IPC. The petitioner filed a writ petition praying that the complainants be restrained from pursuing the said complaints. The writ petition was dismissed by a Division Bench of the Delhi High Court. The petitioner then filed the petitions u/s 561A Cr.P.C. praying that the complaints against him be quashed. Some of the grounds raised in the petition were the same as those raised in the earlier writ petition. The WP (Crl.) 870 of 2010 Page 18 of 54 question for consideration before the High Court was whether the decision of the Court in the Civil writ petition would be res judicata, with the effect that the contentions rejected in the writ petition could not be raised in subsequent petitions u/s 561-A Cr.P.C. The Court had observed:-

” In our view, the general principle of res judicata is based firstly on public policy and secondly on private justice both of which apply to all judicial proceedings whether civil, criminal or otherwise. Public policy requires that in the general interest of the community litigation must come to an end and its conclusion must have finality. Private justice requires that an individual should be protected from vexatious multiplication of suits and prosecutions at the instance of an opponent whose superior power and resources may enable him to abuse the process of court. The principle of res judicata should, therefore, apply equally to civil and criminal proceedings inasmuch as the decisions of courts in both the proceedings are justified by and rest upon “the same theoretical basis of public policy and private justice” (Spencer-Bower and Turner on Res Judicata 2nd Edition paragraph 13).”

“……..But in all criminal proceedings, the principle of res judicata or issue of estoppel may come into conflict with another principle, namely, that the prosecution must prove that the accused is guilty and unless this is done the accused is presumed to be innocent. But principle of estoppel cannot over-ride the principle of presumption of innocence of the accused. Similarly, the following special features of the criminal proceeding would further modify the application of issue estoppel. Firstly, in a criminal case there is no duty on the accused to adduce evidence in defense while in a civil case adverse inference may be drawn from the refusal of a party to adduce evidence in his possession or power. Secondly, the burden of proof to prove the guilt of the accused is higher on the prosecution in a criminal case as compared to the burden of proof on the plaintiff to prove his case against the defendant in a civil case. Lastly, certain evidence such as confessions in certain circumstances cannot be proved in a criminal case against accused though there is no such restriction between the parties to a civil proceeding. The result is that a finding of WP (Crl.) 870 of 2010 Page 19 of 54 fact arrived at in a civil proceeding may not be binding in a criminal proceeding against the accused.”

The Court had further held:-

“Generally speaking, the principle of issue estoppel is invoked to bar the adducing of evidence to prove facts which have been already adjudicated upon in a previous proceeding between the parties. It being easier (for the reasons stated above) to obtain a finding of fact for a plaintiff against a defendant in a civil proceeding than for the prosecution to do so against the accused in a criminal proceeding, the finding of fact given in a previous civil proceeding may not act as res judicata in a subsequent criminal proceeding. For the same reasons, therefore, a finding of fact in a criminal proceeding against an accused person should act as res judicata in a subsequent civil proceeding between the same parties.”

It was further held:-

“However that may be, there is no question of presumption of innocence of the accused and no question of the rules of procedure and evidence being more favorable to him when a pure question of law is decided in a criminal or a civil proceeding. In respect of a finding on a question of law, therefore, both the civil and the criminal proceedings ought to be on par. The finding of law in a previous civil proceeding should, therefore, act as res judicata in a subsequent criminal proceeding in accordance with the well established general law of res judicata.”

 

25. The petitioner has also referred to M/s Pepsi Foods Ltd. & another v. Special Judicial Magistrate and Others 1998 Cri.L.J. 1 in which, the complaint was filed alleging that the complainant had sold a bottle of beverage which was adulterated. After recording preliminary evidence the Magistrate passed orders summoning the appellants and others. The appellants filed a writ petition under Articles 226 & 227 of the Constitution in the Allahabad High Court praying for quashing of WP (Crl.) 870 of 2010 Page 20 of 54 the complaint against them. The High Court refused to entertain the writ petition on the ground that the appellants should approach the Judicial Magistrate u/s 245 Cr.P.C. for their discharge, if the complaint did not disclose commission of any offence by the appellants and the Court considered the charge to be groundless. The Apex Court observed:-

” Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one, the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.”

” Summoning of an accused in criminal cases is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then WP (Crl.) 870 of 2010 Page 21 of 54 examine if any offence is prima facie committed by all or any of the accused.”

” No doubt the magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.”

 

26. In K.C. Builders and Another v. Assistant Commissioner of Income Tax, (2004) 2 SCC 731 relied on by the petitioner, the appellant was engaged in the business of construction and sale of flats. He filed the returns of income for Assessment years 1983-84 to 1986-87 disclosing the assessed income as income. As these returns were found to be defective the appellants filed revised returns, which were accepted by the department. The assessing authority treated the difference between the income as per the original return and revised income, as concealed income and the Asst. Commissioner of Income Tax levied penalties u/s 271(1)(c) of the IT Act. The first appeal against the order of penalties was confirmed by the CIT (Appeals). Four complaints were also filed against the appellants u/s 276-C (2), 277 and 278-B of the IT Act and sections 120-B, 34, 193, 196, and 420 IPC. The appellant preferred an appeal against the order of the CIT (Appeals) to the Income Tax Appellate Tribunal. The Tribunal held that there was no concealment of income by the assessee and accordingly the penalties WP (Crl.) 870 of 2010 Page 22 of 54 were cancelled. The application filed by the Revenue Department u/s 271(1)(c) of the IT Act for reference of the question of law which had arisen out of the IT Appellate tribunal‟s order was rejected. The tribunals order was given effect to and the penalties levied were cancelled by the respondents. Consequent to the IT Appellate Tribunal‟s order the appellant moved an application before the Additional CMM praying the Court for adjourning the proceedings in the criminal case, to enable them to move the necessary petition and to file the copy of the order of the Tribunal which allowed the appeal against the levy of penalty. However, the Magistrate permitted the appellants to mark the order of the Tribunal in evidence at the appropriate stage of the trial. The appellants filed a criminal revision u/s 397 and 401 of Cr.P.C. before the High Court for setting aside the order of the Additional CMM. The criminal revision petition was rejected holding that the Income Tax Appellate Tribunal‟s order was inapplicable, since it was not marked as defense document. The Apex Court in these circumstances had held:- “….the High Court is not justified in dismissing the criminal revision vide its judgment ignoring the settled law as laid down by this Court that the finding of the appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been cancelled by the complainant following the Appellate Tribunal’s order, no offence survives under the Income Tax Act and thus quashing of prosecution is automatic.”

” In the instant case, the penalties levied under Section 271(1)(c) were cancelled by the respondent by giving effect to the order of the Income Tax Appellate Tribunal in I.T.A. Nos. 3129-3132. It is settled law that levy, of penalties and prosecution under Section 276C are simultaneous. Hence, once the penalties are cancelled on the ground that there is WP (Crl.) 870 of 2010 Page 23 of 54 no concealment, the quashing of prosecution under Section 276C is automatic”

” In our opinion, the appellants cannot be made to suffer and face the rigorous of criminal trial when the same cannot be sustained in the eyes of law because the entire prosecution in view of a conclusive finding of the Income Tax Tribunal that there is no concealment of income becomes devoid of jurisdiction and under Section 254 of the Act, a finding of the Appellate Tribunal supersedes the order of the Assessing Officer under Section 143(3) more so when the Assessing Officer cancelled the penalty levied.” ” In our view, once the finding of concealment and subsequent levy of penalties under Section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his order under Section 154 of the Act as per the directions of the Tribunal. As already noticed, the subject matter of the complaint before this Court is concealment of income arrived at on the basis of the finding of the Assessing Officer. If the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eyes of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction. The Assistant Commissioner of Income Tax cannot proceed with the prosecution even after the order of concealment has been set aside by the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal proceedings against the appellants cannot survive for further consideration. In our view, the High Court has taken the view that the charges have been framed and the matter is in the stage of further cross-examination and, therefore, the prosecution may proceed with the trial. In our opinion, the view taken by the learned Magistrate and the High Court is fallacious. In our view, if the trial is allowed to proceed further after the order of the Tribunal and the consequent cancellation of penalty, it will be an idle and empty formality to require the appellants to have the order of Tribunal exhibited as a WP (Crl.) 870 of 2010 Page 24 of 54 defence document inasmuch as the passing of the order as aforementioned is unsustainable and unquestionable.”

27. In Baldev Singh v. State & Ors., 2006(3) JCC 1281 relied on by the petitioner, the complainant filed a complaint before the Crime Against Women (CAW) Cell. The petitioner was called by the CAW cell and proceedings were conducted, wherein the petitioner is said to have filed various documents. The Cell could not reconcile the parties and ultimately a FIR was registered. Investigation was conducted and charge sheet was filed and the case was at the stage of framing of charges. The petitioner had moved an application before the MM requesting the Court to summon the record of the CAW cells, which was rejected. A revision petition filed by the petitioner was also rejected by the ASJ, who relying on State of Orissa v. Debendra Nath Pandhi was of the opinion that at that stage the accused could not rely upon the documents submitted by him. The High Court in these circumstances had held:-

” As noted above, the CAW Cell is an amalgam of investigating agency which is also entrusted with the function of attempting to reconcile the parties. The proceedings before the CAW Cell are initiated pursuant to the complaint filed by the complainant in which there may be allegations of harassment on account of demand of dowry, etc./ on the basis of which complaint generally is under section 498-A/406 IPC. I am, therefore of the opinion that there is no harm in summoning the record of the CAW Cells at Krishna Nagar and Nanak Pura. At the same time while hearing arguments on charge, the learned trial Court should be prudent enough to see as to which documents WP (Crl.) 870 of 2010 Page 25 of 54 contained in the record before the CAW Cells are to be considered and parties allowed to rely thereupon.”

28. The petitioner has also referred to Shakuntala v. State of Delhi, 139 (2007) DLT 178, in which case, the complainant Smt. Radha had married Nagender Singh who was the son of the petitioner. A divorce petition was filed by Nagender which was contested by the complainant. Ultimately the divorce petition was withdrawn by Nagender under an arrangement. It was decided that Nagender and the complainant would live separate from her in-laws in a rented accommodation. The complainant shifted to that house along with all her articles. However Nagender married another woman with whom he was having an affair. She left the house for her parent‟s house and she along with her father and Nagender‟s father made an application to the Police station. However the complainant filed a complaint with the CAW Cell alleging that her husband was not returning her istridhan and dowry articles. Although under the directions of the CAW Cell the husband had returned some goods. The complainant averred that these were not complete goods and more istridhan and dowry articles were lying with her husband. She got an FIR registered wherein she made allegations against her father-in-law, mother-in-law, sister-in-law and her sister-in- law‟s husband apart from her husband. The MM after considering the statement of the complainant and evidence collected by the police discharged the father-in-law, sister-in-law and sister-in-law‟s husband. WP (Crl.) 870 of 2010 Page 26 of 54 However the MM was of the opinion that charge under sec 406 was made out against the mother-in-law. A revision petition before the ASJ was also dismissed. The reason for upholding the order of MM by ASJ was that the documents relied upon by the petitioner were not the part of the charge- sheet filed by police. The documents relied upon by the petitioners were those documents which were the case diary of the investigating officer, but the investigating officer did not make them part of the challan. These documents included the earlier complaint made by the complainant, her father and father- in-law to the police, supplementary statements of the complainant recorded after filing of FIR regarding return of istridhan. The High Court in these circumstances had held:-

” It is settled law that fair and just investigation is a hallmark of any investigation. It is not the duty of the Investigating Officer to strengthen the case of prosecution by withholding the evidence collected by him. If an Investigating Officer withholds the evidence collected by him, the accused has a right to rely upon that evidence and tell the Court to take that evidence into account while framing the charges. The Court while framing charges may not take into account the defense of the accused or the documents in custody of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the investigation but the Court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. If it is brought to the notice of the Court by the accused that some of the evidence or documents have been withheld by the Investigating Officer or the prosecution deliberately, so that truth does not come out before the Court, the Court, before framing of charge can order the Investigating Officer to place the entire investigation before it and ask him to produce case diaries. Fair investigation is the right of the accused and this right can be exercised by the accused at WP (Crl.) 870 of 2010 Page 27 of 54 the time of charge and the accused can insist upon the Court to consider the evidence collected by the Investigating Officer but not made part of the charge-sheet. In this case the evidence relied upon by the accused is not produced by the accused from his custody but is the evidence collected by the Investigating Officer. These are the supplementary statements of complainant under Section 161, Cr.P.C. recorded by the I.O…….”

 

29. In State of Madhya Pradesh v. Mohan Lal Soni, AIR 2000 SC 2583 referred to by the counsel for the petitioner, a complaint u/s 13(1)(e) r/w section 13(2) of the PC Act was filed against the respondent, a Road Transport Inspector. While submitting the charge sheet several important documents which were collected during the course of the investigation were withheld. At the time of framing of charge the respondent made an application seeking production of these documents in Court before proceeding to frame charge. The said application was rejected holding that for the purpose of framing of charge only the documents forwarded to the court u/s 173(5) Cr.P.C need to be considered. The revision petition against the said order was disposed of by the High Court by its order dated 8.9.1997, holding that the documents made available by the accused during investigation be produced and be taken into consideration by the trial Court while framing of charges. Thereafter, the trial court framed charges under section 13(1)(e) r/w section 13(2) of the Act. Aggrieved by the order framing charges the respondent filed a criminal revision petition in the High Court. The High Court set aside the order framing charges and WP (Crl.) 870 of 2010 Page 28 of 54 discharged the respondent. The High Court while making the order in the Criminal revision petition had relied upon the decision in Satish Mehra v. Delhi Administration, which was specifically overruled by the Supreme Court in State of Orissa v. Debendra Nath Pandhi. The State filed a petition challenging the said order in which the Apex Court had held and observed:-

” Our attention was specifically drawn to the earlier order of the High court dated 8.9.1997 passed in Criminal Revision No. 337/97 in which the trial court was directed that the documents made available by the accused during investigation be produced and they be taken into

consideration by the court while framing charges. The said order became final, it having not been challenged further. In this situation the parties and the trial court were bound and governed by the said direction. Since the trial court did not follow the said direction, the High Court having considered all the material including the documents produced by the prosecution itself, which were collected during the course of investigation, and on being prima facie satisfied taking the documents on their face value held that no offence was made out and as such no charge could be framed against the respondent. In this view, the High Court set aside the order of the trial court and passed the order discharging the respondent. The High Court in the order under appeal has elaborately considered the documents collected during the course of investigation and produced by the prosecution itself which were available at the time of framing charges……”

The Court further held:-

” From the decisions referred to in the same paragraph and the decisions already referred to above there was no bar to consider the material on record in the case on hand, which was collected during the course of investigation and produced before the court and particularly in view of the directions given earlier by the High Court.”

WP (Crl.) 870 of 2010 Page 29 of 54

30. Per Contra the learned counsel for the respondent, CBI has relied on Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another, (2005) 2 SCC 370. In the said case the appellants filed proceedings before the District Judge for grant of probate of a will, allegedly executed by the deceased brother of the appellants. The respondents filed a criminal complaint for prosecution of the appellants and their mother u/s- 192,193, 463, 464, 465, 467, 469, 471, 499 & 500 of IPC on the ground that the said will produced by the appellants was a forged and fictitious document. The Magistrate dismissed the complaint in view of the bar contained in section 195(1)(b)(ii). In revision the ASJ held that the bar contained in section 195(1)(b)(ii) would not apply where forgery of a document was committed before the said document was produced in Court. The High Court upheld the order of the ASJ. The issue before the Apex Court was the interpretation of the expression “when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court.” Occurring in S-195(1)(b)(ii) Cr.P.C. The Apex Court had held:-

” Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodial legis.”

WP (Crl.) 870 of 2010 Page 30 of 54 ” In the present case, the will has been produced in the Court subsequently. It is nobody’s case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents.”

 

31. In V.K. Puri v. CBI, (2007) 6 SCC 91 relied on by the Respondent, the issue before the Apex Court was the territorial jurisdiction of a Special Court within the meaning of the provisions of Prevention of Corruption Act, 1988. The appellant was an officer working in the Customs Department. The CBI registered an FIR against him purported to be for the commission of an offence under section 13(2) r/w S- 13(1)(e) of the PC Act. The contention of the appellant was that since he has never been posted in Delhi during the check period, The Delhi Courts has no jurisdiction to his case. The Court had observed:- “Ingredients of the offence under Section 13(1)(e) of the 1988 Act are:

(i) The accused is a public servant;

(ii) The nature and extent of the pecuniary resources of property found in his possession;

(iii) His known sources of income, i.e., known to the prosecution.

(iv) Such resources or properties found in possession of the accused were disproportionate to his known sources of income.

WP (Crl.) 870 of 2010 Page 31 of 54 One of the ingredients of offences, therefore, is known sources of income. What is material therefore is that the criminal misconduct had been committed during the period he held office and not the places where he had held offices.” The Court had further held:-

” In a case involving section 13(1)(e) of the 1988 Act, what is necessary is as to whether keeping in view the period in question, commonly known as check period, the public servant has acquired wealth which is disproportionate to his known sources of income. It has nothing to do with individual case of bribery. It has nothing to do with a series of acts culminated into an offence. Each Court, where a part of the offence has been committed, would, therefore, be entitled to try an accused. The 1988 Act does not bar application of Section 178 of the Code of Criminal Procedure. If application of the provision of Section 178 of the Code of Criminal Procedure is not barred, the fact that the appellant has a part of his known source of income at Delhi, in our opinion, would confer jurisdiction upon the Delhi Courts. It is one thing to say that only the Special Courts will have jurisdiction to try the offence, but for the purpose of arriving at a decision as to the Special Judge of which place shall have the requisite jurisdiction, the situs of the property may or may not have any relevance. Once the situs of the property is held to have relevance for the purpose of ascertaining his known source of income and consequent acquisition of disproportionate assets, in our opinion, the Special Judge concerned will also have the requisite jurisdiction to try the case.”

32. In another judgment relied on by the respondent, Hem Chand v. State of Jharkhand, (2008) 5 SCC 113, a raid was conducted by the CBI officials at the residence of the appellant, an IPS officer, pursuant to which an FIR was lodged and a charge sheet was filed. The appellant filed an application for discharge on the ground that no case for framing WP (Crl.) 870 of 2010 Page 32 of 54 of charge has been made out. He also filed some documents in his own defense. The said application for discharge was rejected by the Special Judge, CBI, opining that the documents relied on by the appellant cannot be looked into for the purpose of passing an order on his application for discharge. A revision application filed by the appellant in the High Court was also disposed off. The issue before the Apex Court was whether any documents whereupon the appellant may rely in support of his defense, can be looked into at the stage of framing of charge. The Court had held:-

” It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on record at the trial.”

” It is one thing to say that on the basis of the admitted documents, the appellant was in a position to show that the charges could not have been framed against him, but it is another thing to say that for the said purpose he could rely upon some documents whereupon the prosecution would not rely upon.”

” The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any.

WP (Crl.) 870 of 2010 Page 33 of 54

33. In State of Maharashtra v. Ishwar Piraji Kalpatri, (1996) 1 SCC 542, another precedent relied on by the respondent, the Anti- Corruption Bureau, Bombay made enquiries with regard to the respondent, who was holding the post of Vigilance Officer at the relevant time. A FIR was recorded and the case was registered u/s-15(2) r/w section 5(1)(e) of the PC Act. The government of Maharashtra accorded sanction to prosecute the respondent. The respondent filed a Criminal Writ petition which was allowed and all the proceedings which were pending before the Special Judge against him were quashed. One of the grounds on which the High Court quashed the prosecution was that the appellants were guilty of mala fides. As to this point the Apex Court held:-

” In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or mis-conduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the court of competent jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not. Allegations WP (Crl.) 870 of 2010 Page 34 of 54 of mala fides were also made in P.P. Sharma’s case (supra) against the informer. It was held by this Court that when information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings.” ” This Court has consistently taken the view that the Court should not, except in extra-ordinary circumstances, exercise its jurisdiction under Section 482 Cr.P.C. so as to quash the prosecution proceedings after they have been launched……..at the stage of quashing an First Information Report or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. This is precisely what has been done by the learned Judge in the present case. The First Information Report having been lodged, the Government of Maharashtra having accorded sanction and thereafter, the charge having been filed, there was absolutely no justification for the High Court to have stopped the normal procedure of the trial being allowed to continue.”

 

34. In P. Nallammal and Another v. State, (1999) 6 SCC 559 which precedent has also been relied on by the respondent, as already detailed hereinabove, some former Ministers of the Tamil Nadu government were being prosecuted before certain Special Courts for the offence under section 13(1)(e) of the PC Act, 1988. In all these cases some of their kith and kin were also arraigned as co-accused to face the said offence r/w section 109 of IPC. The issue before the court was whether the kith and kin of the ministers, being non-public servants, were liable to be prosecuted along with public servants for the offence under section 109 IPC r/w S-13(1)(e) PC Act. The Apex Court held:-

WP (Crl.) 870 of 2010 Page 35 of 54 ” Thus, Clause (b) of section-3(1) encompasses the offences committed in conspiracy with others or by abetment of “any of the offences” punishable under the P.C. Act. If such conspiracy or abetment of “any of the offences” punishable under the P.C. Act can be tried “only” by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non- public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the P.C. Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non- public servant is also liable to be tried along with the public servant before the court of a Special Judge having jurisdiction in the matter”

 

35. In Soma Chakravarty v. State, (2007) 5 SCC 403 also relied on by the respondent, the appellant is alleged to have entered into criminal conspiracy with two other persons and by misusing their official position to have caused undue pecuniary advantage to themselves and caused a corresponding loss to the Indian Trade Promotion Organization (ITPO). They have been charged for offences u/s 12B, 429, 468 and 471 of IPC as well as various provisions of the PC Act. The appellant filed criminal revision on the High Court against the framing of charges which was dismissed. He impugned the above said order in the Special Leave petition. The Apex Court observed: (as per Katju J) ” It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record WP (Crl.) 870 of 2010 Page 36 of 54 cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.”

(As per Sinha,J.) – ” The learned Trial Judge, it appears, did not properly apply its mind in regard to the different categories of accused while framing charges. It ought to have been done. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exists some materials therefore. Suspicion cannot alone, without anything more, it is trite, form the basis therefore or held to be sufficient for framing charge.” “The courts although may take a strict view of an offence where fraud is alleged against a public servant, but only because it is found to have been committed, the same by itself may not be sufficient to arrive at a conclusion that all officers who have dealt with the files at one point of time or the other would be taking part in conspiracy thereof or would otherwise be guilty for aiding and abetting the offence. It is necessary to deal with the individual acts of criminal misconduct for finding out a case therefore.” “In a case of this nature, the learned Special Judge also should have considered the question having regard to the ‘doctrine of parity’ in mind. An accused similarly situated has not been proceeded against only because, the

departmental proceedings ended in his favour. Whether an accused before him although stands on a similar footing despite he having not been departmentally proceeded against or had not been completed exonerated also required to be considered. If exoneration in a departmental proceeding is the basis for not framing a charge against an accused person who is said to be similarly situated, the question which requires a further consideration was as to whether the applicant before it was similarly situated or not and/ or whether the exonerated officer in the department proceeding also faced same charges including the charge of being a party to the larger conspiracy.”

WP (Crl.) 870 of 2010 Page 37 of 54

36. The respondent also relied on (2005) 1 SCC 568, State of Orissa Vs Debendra Nath Padhi, which precedent has also been relied on by the petitioner, to contend that `the record of the case‟ as used in section 227 of Cr.P.C relate to the case and the documents referred to in Section 209 of Cr. P.C. It was further contended that expression `hearing the submission of the accused‟ means hearing the submission of the accused on the record of the case as filed by the prosecution and documents submitted therewith and it cannot mean opportunity to file material to be granted to the accused. Regarding Court‟s power to summon the documents under section 97 of Cr. P.C it was held that a police officer may move the Court for summoning and production of a document at any of the stages mentioned in the section but the accused can seek such order only at the stage of defense. It was specifically held that no right is conferred on the accused to produce document in his possession to prove his defense at the stage of framing of charge. The law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the Code of Criminal Procedure, 1973, grants to the accused any right to file any material or document at that stage of framing of charge. That right is granted only at that stage of the trial. Referring to Satish Mehra case, (1996) 9 SCC 766 where it was held that the trial Court has powers to consider even materials which the accused may produce at this stage of section 227 of the Code had not been correctly decided. It is well settled that at the stage of framing of charge the defense of the accused cannot WP (Crl.) 870 of 2010 Page 38 of 54 be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defense at that stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. In para 8 at page 574 and in para 25 on pages 579,-580 the Apex Court had held as under:

8. What is the meaning of the expression “the record of the case” as used in Section 227 of the Code. Though the word “case” is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to the Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit “the case” to the Court of Session and send to that court “the record of the case” and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.

 

25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is “necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code”. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that WP (Crl.) 870 of 2010 Page 39 of 54 stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be

necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.

 

37. Both the parties have referred to a number of decisions which have been referred to hereinabove. Some of the precedents have been relied on by both the parties referring to different observations in the same precedent. However, it has to be remembered that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot WP (Crl.) 870 of 2010 Page 40 of 54 of difference in the precedential value of a decision. The Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr., AIR 2004 SC 778 had observed:-

” Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

” Each case depends on its own facts and a close similarity between one case and Anr. is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of Anr.. To decide therefore, on which side of the line a case falls, the broad resemblance to Anr. case is not at all decisive.”

In Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59), the Supreme had observed:- WP (Crl.) 870 of 2010 Page 41 of 54 ” It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.”

Similarly In Ambica Quarry Works v. State of Gujarat and Ors. MANU/SC/0049/1986 the Supreme Court had also observed:- “The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.”

38. By order dated 12th April, 2006 the Special Judge had dismissed the application which had been filed by the petitioner pursuant to order dated 6th October, 2005 passed in Criminal Revision Petition No.730/2005 titled as Vishwa Vibhuti v. CBI holding that the expression “known source of income” must have reference to source known to the prosecution and the prosecution cannot, in every nature of offence, be expected to know firms of the accused person. It was further held that the prosecution could only lead evidence to show that the accused was known to earn his living by service under Government during the material period. Relying on Section 13(1)(e) of the PC Act it was held that it casts burden on the accused not only to offer a plausible explanation as to how he came to have his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. The reliance was placed on P.Nallamal v. State (Supra); State of Maharashtra v. Ishwar Piraji Kapatri, (1996) 1 SCC 542 and State through CBI v. S.Bangarappa, 2000 (4) Crimes 276 (SC). WP (Crl.) 870 of 2010 Page 42 of 54

39. This cannot be disputed that to substantiate a charge, the prosecution must prove the following ingredients namely:- 1) the prosecution must establish that the accused is a public servant; 2) the nature and extent of the pecuniary resources or property which were found in his possession; 3) it must be proved as to what were his known sources of income, i.e. known to the prosecution, and 4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. In Hem Chand (Supra) the issue before the Apex Court was whether any documents which the accused may rely in support of his defense could be looked into at the stage of framing of charge or not. It was held that at the stage of framing of charge, the Court will not weigh the evidence as the stage for appreciating the evidence for the purpose of arriving at a conclusion is where the prosecution was able to bring home the charge against the accused or not, would arise only if all the evidence is brought on record at the trial. Though on the basis of admitted documents the accused may be in a position to show that the charge could not have been framed against him but the accused could not rely upon some documents upon which the prosecution does not rely. The Court at the stage of framing charge exercises a limited jurisdiction and what is to be seen is whether prima facie case has been made out or not. What is also to be considered is whether a case of probable conviction for commission of an offence has been made out on the basis WP (Crl.) 870 of 2010 Page 43 of 54 of the materials found during investigation and at that stage the Court should not delve deep into the matter for the purpose of appreciation of evidence as it would ordinarily not consider as to whether the accused would be able to establish his defense, if any. In Debendra Nath Padhi the Apex Court had held that if any document is necessary or desirable for the defense of the accused, the question of invoking Section 91 at the initial stage of framing of charge would not arise since the defense of the accused is not relevant at that stage. As far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defense. It was further held that under Section 227 Cr. P.C, what is necessary and relevant is only the record produced in terms of Section 173 of the Code and the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence.

 

40. The learned counsel for the petitioner had laid great emphasis on a decision of Division Bench of Orissa High Court, Janaki Ballav Patnaik (Supra) to contend that the order passed by IATA should be considered as in the case relied on by the petitioner, the accused case was that the prosecution had not taken into consideration one of the known sources of income, namely the income of the petitioner accused wife. In the said case the prosecution was aware that the wife of the petitioner was a Member of Parliament and that she had received a substantial amount as allowances during the cheque period still the WP (Crl.) 870 of 2010 Page 44 of 54 prosecution had not proceeded in accordance with the guidelines of Lok Sabha Secretariat to find out the income of the petitioner‟s wife. Even the certificate produced by the accused in the said case from the Lok Sabha Secretariat, the said certificate was not denied or doubted by the prosecution. In contra distinction to the case of Janaki Ballav Patnaik, the case of the respondent is that the petitioner had not intimated about the business activities or earnings of his family members. The plea of the petitioner is that the trial Judge failed to consider the documents whereby the petitioner had intimated his department that his wife was engaged in business including pharmaceuticals manufacturing sale and purchase and relied on a letter dated 31st September, 1991 which was produced by the petitioner. However, the said document is not admitted by the prosecution and at the stage of framing of charge, the Court is not to embark on a mini trial. The acceptance of contention of the petitioner would rather mean permitting him to adduce his defense at the stage of framing of charge and this is against the criminal jurisprudence. The reliance has also placed by the petitioner on the 2nd stage advice of the Central Vigilance Commission allegedly exonerating him of the same charges as has been proposed in the criminal case. According to the petitioner the advice of CVC has also been upheld by ITAT, however, it is to be noted that on the basis of 2nd stage advice of CVC the disciplinary proceedings initiated against the petitioner have not concluded and the punishment of compulsory retirement with 30% cut in pension has only been set aside for non WP (Crl.) 870 of 2010 Page 45 of 54 compliance of Rule 15(2) of CCS (CCA) Rules which contemplates that in case of disagreement with the findings of the enquiry authority on any article of charge, the disciplinary authority has to send the copy of the report of the enquiry authority together with its tentative reasons for disagreement, which was not done in the case of the petitioner and thus though the order of punishment in disciplinary proceedings of compulsory retirement and 30% cut in the pension was set aside, the disciplinary authorities were, however, given liberty to proceed in the matter strictly in accordance with law and rules.

41. Lot of emphasis has also been laid by the learned counsel for the petitioner on the order of Income Tax Appellate Tribunal dated 31st December, 2003, however, perusal of the said order, even if it can be considered though it has been produced by the petitioner on the ground that it is of impeachable character, the same is only for the assessment year 1995-1996 in an appeal filed by the revenue against the reliefs given by CIT Appellate in the matter of an amount of Rs.2,46,000/- received in cash by the assessee‟s wife from 17 loan creditors, unexplained investment in immovable properties and unexplained household appliances and jewellery. The order categorically stipulates that on behalf of petitioner it was represented before the Income Tax Appellate Tribunal that all the disciplinary proceedings have been cancelled against him which, however, is contrary to the order dated 16th August, 2007 passed in O.A No.1151/2004 Vishwa Vibhuti v. WP (Crl.) 870 of 2010 Page 46 of 54 Union of India and Ors where the disciplinary authorities were permitted to proceed in the matter against the petitioner in accordance with rules and law.

 

42. The plea of the respondent that during the cheque period which is from 1st January, 1985 to 16th June, 1996, the daughters of the petitioner were having income and even the petitioner‟s mother had got the drafts prepared for payment to seller of the property after availing the cheques from the account of petitioner‟s wife and on single day huge cash was deposited in the mother‟s account. It is thereafter, that a draft was got prepared in the name of the seller of the flat in Munirka Enclave. The respondent has contended that the legitimate income of the petitioner and his family members as shown in the income tax return had been given benefit to the tune of Rs.18,64,246/- even though the salary received by the petitioner during the cheque period was only Rs.4,98,446/-. Prima facie reliance has also been placed on the categorical statement of Sh.Harsh Malviya (PW-1) that the petitioner had not intimated to the competent authority regarding the alleged business activities of his wife by the petitioner.

43. On behalf of the petitioner it was contended that if in a departmental proceedings a person stood exonerated, can the criminal proceedings continue against him. The said proposition on behalf of petitioner is based on the premise that he has been exonerated in the WP (Crl.) 870 of 2010 Page 47 of 54 departmental proceedings whereas what has happened is that the order had been set aside on account of technical violation of Rule 15(2) of CCS (CCA) Rules with liberty to the disciplinary authority to proceed in accordance with law and rules. There is not the complete exoneration of the petitioner as is sought to be made out.

 

44. The respondents have also emphasized that the petitioner cannot avail the benefit of alleged intimation about the income of his wife and children and he would be hit by explanation to Section 13(1)(e), however, at the stage of framing of charge this Court in exercise of its jurisdiction under Article 226 of the Constitution of India does not have to start a mini trial. Even the trial Judge at the stage of framing charge exercises a limited jurisdiction and has to see as to whether a prima facie case has been made out or not. At this stage this Court would not delve into the matter for the purpose of appreciation of evidence nor it would consider as to whether the petitioner would be able to establish his defense if any. This also has been the consistent view that the Court, should not except in extraordinary circumstances, exercise its jurisdiction so as to quash the prosecution proceedings after they have been launched as the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein.

WP (Crl.) 870 of 2010 Page 48 of 54

45. On behalf of the petitioner it was also contended that only one person PW.1 was called to enquire whether any intimation was on record or not, by the petitioner about the income of the business activities of his wife and daughters and any steps were taken to summon the appropriate persons and seeking an official explanation in enquiry about the intimation of the petitioner about the business of the wife and the daughter. This plea of the petitioner is also to be repelled as the Court does not have to embark upon a mini trial at this stage at the time of framing of charge.

 

46. The contention of the learned counsel that the law does not require intimation about the assets of the wife and the daughter also cannot be accepted as no satisfactory explanation has been given by the learned counsel for the petitioner except making an allegation in this regard.

 

47. From the written submissions dated 20th March, 2012 filed on behalf of the respondent what also transpires that at the stage of 294 Criminal Procedure Code, the petitioner has admitted 175 documents out of 256 documents relied upon by the respondent. If the petitioner has not relied upon 81 documents which can be proved only during the trial, it cannot be contended on behalf of the petitioner that prima facie case has not been made out against him. The learned counsel for the petitioner has also not addressed about the documents which have not WP (Crl.) 870 of 2010 Page 49 of 54 been admitted by the petitioner. It has also not been addressed that the documents which have not been admitted by the petitioner are not relevant or that on the basis of the same the charge cannot be framed against the petitioner.

 

48. The learned counsel for the respondent had relied on Crl.M.C No. 1876 of 2011 titled Om Prakash Sharma Vs CBI decided on 26th March, 2012. However, in the said case the petitioner had not based his claim on the documents like the order of Income Tax Appellate Authority. The said case is therefore, distinguishable with the present case of the petitioner who is basing his claim on the order passed by the Income Tax Appellate Tribunal. It was however, held that the supervisory jurisdiction conferred on the High Court is to be used sparingly and only in appropriate cases where the judicial conscience dictates to act, lest a gross failure of justice or grave injustice should occasion. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India is not to convert itself into a court of appeal and indulge in reappreciation or reevaluation of evidence or correct errors in drawing inferences or errors of mere formal technical character. On the basis of date of birth of daughters, the petitioner has tried to emphasize that the daughters could earn and this fact has been admitted by The Income Tax authorities. The petitioner has asserted that the deduction of Rs.19,00,851.00 is not correct in the facts and circumstances. However this Court does not have to recalculate the various figures and WP (Crl.) 870 of 2010 Page 50 of 54 facts in detail propounded by prosecution to arrive at a different mathematical calculations in order to ascertain whether the charge framed against the petitioner is liable to be quashed or not in the facts and circumstances this case. This court in exercise of its jurisdiction under Article 226 of the Constitution of India will not shift through the evidence and the deduct that the amounts which are allegedly not disproportionate to the known source of income, as known to the prosecution has been taken into consideration. It would be erroneous to assess the material relied on by the petitioner and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. It is not necessary that there should be meticulous analysis of the evidence produced by the petitioner on the ground that the evidence is of impeccable nature and on the basis of same the case would not end in conviction. At this stage the scope of interference being very limited, this court will not delve into the matter for the purpose of shifting the evidence and venture a mini trial. The learned counsel for the respondent had also relied on Ankur Kumar Jain Vs Central Bureau of Investigation , 178 (2011) DLT 501 in which it was held that an order framing charge under Prevention of Corruption Act, 1988 is an interlocutory order and a revision against an interlocutory order and framing of charge being also an interlocutory order, a revision will not be maintainable. The petitioner had filed a WP (Crl.) 870 of 2010 Page 51 of 54 revision petition which was later on converted into a Writ Petition. In the circumstances the respondent cannot contend that the writ petition cannot be filed by the petitioner. However, in a writ petition whether this High Court will interfere with the order of framing the charge against the petitioner or not is a different matter. The learned counsel for the respondent has also relied on (1991) 3 SCC 655, K.Veeraswami Vs Union of India & ors where the Supreme Court had held that that fair investigation requires that the accused should not be kept in darkness. But it does not contemplates that after collection of all material the investigating officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory are not. This cannot be done as it would amount to elevating the investigating officer to the position of an enquiry officer or a Judge.

 

49. In the totality of the facts and circumstances and for the foregoing reasons it cannot be held that the order of the Income Tax Appellate Tribunal will be “any material” of unimpeachable sterling quality which can be considered in the present facts and circumstances and which will absolve the petitioner completely. The material sought to be produced by the petitioner cannot be considered at the stage of framing of charge in the present facts and circumstances and consequently the decision of the trial Judge in framing charge against the petitioner WP (Crl.) 870 of 2010 Page 52 of 54 cannot be faulted. Even if the said order is considered, it will not absolve the petitioner completely of the charge framed against him. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on record at the trial. The Court at the stage of framing charge exercises a limited jurisdiction. No right is conferred on the accused to produce document in his possession to prove his defense at the stage of framing of charge. Under Section 227 of Cr. P.C, what is necessary and relevant is only the record produced in terms of Section 173 of the Code and the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. The Court only have to see as to whether a prima facie case has been made out. If that be so then the Criminal Court has not committed any jurisdictional error which is to be corrected by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

WP (Crl.) 870 of 2010 Page 53 of 54

50. Consequently, for the foregoing reasons the writ petition is without any merit and it is dismissed. On 31st July, 2006 this Court had directed to fix the matter before the trial Court after 22nd August, 2006, as the writ petition was ordered to be listed on the said date which order has been treated as an interim order since that day. The said order is, therefore, vacated. The trial Court shall conclude the trial as expeditiously as possible in the facts and circumstances of the case. All the pending applications are also disposed of. JULY 6, 2012 ANIL KUMAR, J. „k‟

Section 12 of P.C.Act

“an offence under Section 12 of P.C. Act, offer to bribe would amount to abetment irrespective of the fact whether cash was placed before the public servant or not and whether he agrees to accept the same or not. The mens rea of the bribe giver is relevant consideration for purpose of offence under Section 12 of the P.C. Act”

 

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on : 13th May, 2013 Pronounced on :22nd May, 2013

+ W.P.(CRL) 545/2003

R.P.MALIK ….. Petitioner Through : Mr.Aman Lekhi, Sr. Advocate

with Mr.J.K.Chawla, Advocate.

versus

STATE OF NCT OF DELHI & ORS. ….. Respondents Through : Mr.Saleem Ahmed, Addl.

Standing Counsel for the State

with ACP Sheel Nidhi.

CORAM:

HON’BLE MS. JUSTICE PRATIBHA RANI

%

PRATIBHA RANI, J.

1. In the year 2003, the petitioner R.P.Malik filed this Criminal Writ Petition No.545/2003 invoking the jurisdiction of this Court under Article 226 of the Constitution of India read with Section 482 CrPC for issuance of appropriate writ or direction for quashing the FIR No.60/2000 under Section 12 of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘P.C. Act’) as well the chargesheet and the proceedings arising therefrom. In addition, the petitioner has also prayed for issuance of appropriate writ or direction to the respondent to pay a sum of Rs.10 lacs (in prayer clause (iii) the amount of compensation is given in numbers as Rs.10,00,000/-, but in words as Rupees Fifty Lacs)

W.P.(Crl.) No.545/2003 Page 1 of 28 as compensation to the petitioner as a public law remedy.

2. Case FIR No.60/2000 was registered on 28.11.2000 under Section 12 of P.C. Act against the present petitioner at Anti Corruption Branch, Govt. of NCT of Delhi on the basis of complaint made by ACP Rajeev Ranjan who was posted as ACP/HQ/OPS/East. After completion of investigation, chargesheet has already been filed in this case. However, the chargesheet was consigned to Record Room by learned Special Judge (ACB), Delhi vide order dated 08.02.2011 extracted below : „08.02.2011

Present : Shri B.S. Kain, Ld. APPfor the State.

Accused on bail.

Accused submits that the appeal filed by him has been admitted by Hon‟ble High Court of Delhi.

In these circumstances, let the file be consigned to the record room to be revived as soon as the records are received from the Hon‟ble High Court.

Special Judge (ACB)

Delhi/08.02.2011‟

3. This criminal writ petition was admitted on 08.12.2010 and ordered to be listed in due course before the Roster Bench.

4. Before this criminal writ petition could come up for hearing in due course, Crl.M.A. No.4991/2013 was filed by Naveen Soni for direction to the Trial Court for adjudication and trial of the case. In the application, while giving the background of the litigation between him and the petitioner R.P.Malik, it was brought on record that due to the pendency of this writ petition, Trial Court has also stopped the proceedings against the petitioner despite the fact that there is no order to

W.P.(Crl.) No.545/2003 Page 2 of 28 stay the proceedings before learned Trial Court. The case being under Prevention of Corruption Act, in view of Section 19(3)(c) of P.C. Act, there cannot be any stay of proceedings before the Trial Court. Thus, the trial against the petitioner should proceed.

5. Crl.M.A. No.4991/2013 was listed before this Bench alongwith the record of Criminal Writ Petition No.545/2003. Noticing that writ petition of the year 2003 seeking quashing of FIR and chargesheet is pending for a decade, efforts were made to expedite the hearing.

6. Reference to the background in which this writ petition has come up for hearing has been necessitated in view of the statement made on behalf of petitioner to point out the motive of the applicant Naveen Soni behind moving this application that resulted in the writ petition being taken up for final hearing and disposal.

7. In order to appreciate the contentions and the grounds on which the quashing of FIR and chargesheet has been sought by the petitioner, it is necessary to give in brief the facts leading to registration of FIR No.60/2000 under Section 12 of P.C. Act at ACB, Govt. of NCT of Delhi.

8. The case of the petitioner is that he was retired Chief Administrative Officer of District Court, Delhi and also a former Executive Magistrate, Delhi having high reputation, goodwill and status in the society. The petitioner is associated with a renowned Educational Society running number of public schools in East Delhi and is a well known personality of the area for his social, charitable and philanthropic activities. He is an income tax payee showing high income in his income tax returns.

W.P.(Crl.) No.545/2003 Page 3 of 28

9. The petitioner claims that he is a victim of conspiracy hatched by Naveen Soni, his parents and brother Vikas Soni and their associates including their well wishers in Delhi Police.

10. The petitioner and Naveen Soni entered into an agreement dated 14.01.1998 for sale of property bearing No.3, DLF Industrial Area, Moti Nagar, New Delhi for a sum of Rs.30 lacs. Since the parties to the agreement were having old association, the petitioner paid Rs.15 lacs as part consideration on 14.01.1998.

11. On 05.03.1998 Naveen Soni expressed his inability to honour the agreement and handed over a cheque No.722832 dated 10.03.1998 for a sum of Rs.15 lacs which was refund of the part sale consideration paid by the petitioner. The cheque, on presentation, was dishonouored resulting into filing of a complaint case under Section 138 NI Act by R.P. Malik against M/s New Gayatri Cork Industries and Ors. wherein Naveen Soni and his mother Asha Soni as well as the firm M/s New Gayatri Cork Industries were summoned as accused. The application filed by the accused persons for recalling the summoning order dated 09.03.1999 was dismissed.

12. Giving history of the previous litigations between the petitioner and Naveen Soni, his family and their firm, it is stated in this petition that with a view to blackmail the petitioner and to frustrate the order dated 09.03.1999, a false case was engineered after four years of the alleged loss of cheque. Case FIR No.270/2000 was registered against the petitioner in collusion with the police officials of PS Kirti Nagar and ACP & DCP (West District) at the instance of the then Commissioner of Police. Although the petitioner submitted detailed representation

W.P.(Crl.) No.545/2003 Page 4 of 28 alongwith the supported documents running into 52 pages, despite that he was arrested, tortured and harassed.

13. The petitioner also filed a complaint case No.139/1 (new number 25/2000) before learned MM and on the basis of direction in that complaint case, case FIR No.220/2000 was registered at PS Preet Vihar against Naveen Soni and his family.

14. Sh.Anoop Minocha, son-in-law of the present petitioner R.P.Malik was criminally intimidated, hence case FIR No.187/2000 under Sections 341/323/506/34 IPC was registered against Naveen Soni and Vikas Soni at PS Shakar Pur, Delhi and chargesheet had been filed in this case.

15. The case FIR No.187/2000 PS Shakar Pur is relevant for our purpose as it is in connection with investigation and chargesheet of this FIR that the complainant ACP Rajeev Ranjan was allegedly approached by the petitioner and offence under Section 12 of P.C. Act was allegedly committed, resulting into registration of FIR No.60/2000 at ACB, Delhi at the instance of Rajeev Ranjan against the present petitioner.

16. The petitioner has also given details of other litigations between him and Naveen Soni and his family but the same are not relevant for purpose of disposal of this writ petition.

17. The petitioner is seeking quashing of FIR No.60/2000 under Section 12 of P.C. Act registered as ACB, Govt. of NCT of Delhi on the following grounds :

(i) Charge-sheet has been filed in case FIR No.187/2000, P.S. Shakarpur, Delhi against Naveen Soni and others which establishes the truthfulness of the accusation made by Mr.Anoop Minocha, son-in-law of the petitioner in that case.

W.P.(Crl.) No.545/2003 Page 5 of 28 (ii) This Court in exercise of jurisdiction under Section 482 Cr.P.C can look into the documents of litigation between the parties which are of sterling quality, while considering the prayer of the petitioner to quash the proceedings.

(iii) Case FIR No.60/2000 has been registered in conspiracy with Naveen Soni and unscrupulous police officials to pressurize the petitioner not to continue with the legal proceedings against them; (iv) The material placed on record by the prosecution does not disclose the commission of offence under Section 12 of P.C. Act; (v) Nothing incriminating had been recovered from the petitioner or at his instance;

(vi) Making request to a senior police officer to send the case to the Court is not an illegal act;

(vii) FIR has been registered to settle personal scores and falsity of the case can be gathered that ACP/OPS even did not know which police official or agency is competent to register a case which was fabricated by the ACP;

(viii) Fabrication and falsity is apparent because : (a) Complainant, who is Asstt. Commissioner of Police, tampered with the case property and did not call the police immediately on his arrival at his residence;

(b) The case property was also tampered with by the wife and servant of the complainant and it was discovered after almost four hours of leaving the house of complainant by the petitioner. (c) The complainant, after taking the case property from his residence, kept on roaming here and there without lodging the report or produce the

W.P.(Crl.) No.545/2003 Page 6 of 28 case property before the DCP (East) who was informed about the incident.

(d) The complainant did not take any step to deposit the case property at PS, ACB, Civil Lines, rather went to Addl. Commissioner of Police for issuance of order for registration of FIR because he knew that his case was false;

(e) The complainant admittedly called the petitioner at about 2.00/3.00 pm on 28.11.2000 in his office but neither produced him before DCP nor arrested the petitioner with the case property either himself or in presence of other witnesses like SHO, Farsh Bazar, SHO Anand Vihar or DCP (East).

(vii) The prosecution has fabricated some statement as supplementary statements after about one year of registration of FIR just to plug the loopholes in its case;

(viii) FIR had been registered with oblique motive to pressurize the petitioner to enter into compromise with Naveen Soni and also to withdraw the contempt case as well the revision petition filed by him against his false custody and to withdraw the criminal complaint cases; (ix) No fruitful purpose will be served by continuation of the proceedings against the petitioner which are otherwise abuse of process of law.

18. The prayers made in the writ petition are to the following effect : (a) to call for the records of case FIR No.60/2000, PS ACB, NCT of Delhi pending before the Court of learned Special Judge; (b) to quash the FIR No.60/2000 under Section 12 of the P.C. Act, chargesheet and the proceedings emanating therefrom;

W.P.(Crl.) No.545/2003 Page 7 of 28 (c) to grant writ of mandamus and/or any other writ, and/order or direction directing thereby the respondents to pay a sum of Rs.10,00,000/- (Rupees Fifty Lacs) as compensation/damages to the petitioner, as remedy under the public law.

(d) to pass such other/further order or direction as may be deem fit and proper to do justice to the petitioner and facts and the circumstances of the case; and

(e) to grant cost of proceedings, in the interest of justice.

19. Mr.Aman Lekhi, Senior Advocate appearing on behalf of the petitioner has taken this Court through the complaint which formed basis of registration of case FIR No.60/2000 under Section 12 of P.C. Act, PS ACB, NCT of Delhi as well the statements recoded during investigation. He also referred to the copies of the litigations between petitioner and his son-in-law on the one hand and Naveen Soni and his family on the other hand.

20. Learned Senior Advocate of the petitioner has relied upon S.N.Sharma vs. Bipen Kumar Tiwari & Ors. 1970(1) SCC 653, P.V.Jagannath Rao & Ors. vs. State of Orissa & Ors. 1968 SCR 789,Madhavrao Jiwajirao Scindia & Ors. vs. Sambhajirao Chandrojirao Angre & Ors. (1988) 1 SCC 692,Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. (1998) 5 SCC 749, Harshendra Kumar D. vs. Rebatilata Koley & Ors. (2011) 3 SCC 351, Anita Malhotra vs. Apparel Export Promotion Council & Anr. (2012) 1 SCC 520, Sanju alias Sanjay Singh Sengar vs. State of M.P.(2002) 5 SCC 371, and Om Prakash vs. State of Haryana (2006) 2 SCC 250 in support of his contentions.

W.P.(Crl.) No.545/2003 Page 8 of 28

21. First I would like to deal with the case law cited by learned Senior Advocate for the petitioner in support of his plea that the chargesheet against him is required to be quashed in view of the legal position laid down in the above noted cases.

22. The case law S.N.Sharma vs. Bipen Kumar Tiwari & Ors., P.V.Jagannath Rao & Ors. vs. State of Orissa & Ors., Madhavrao Jiwajirao Scindia & Ors. vs. Sambhajirao Chandrojirao Angre & Ors., Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors., Harshendra Kumar D. vs. Rebatilata Koley & Ors., Anita Malhotra vs. Apparel Export Promotion Council & Anr. (Supra) relied upon by learned Senior Advocate for the petitioner deal with the powers of the High Court under Articles 226 & 227 of the Constitution of India and under Section 482 CrPC and when such power can be exercised.

23. Here it is to be noted that it appears to have escaped the notice of learned Senior Advocate for the petitioner that the principle stated by Supreme Court in the case of Madhavrao Jiwajirao Schindia & Ors. vs. Sambhajirao Chandrojirao Angre & Ors. (Supra) was reconsidered in two subsequent judgments reported as State of Bihar & Anr. vs. Shri P.P.Sharma & Anr. AIR 1991 SC 1260 and M.N.Damani vs. S.K.Sinha & Ors. AIR 2001 SC 2037. In the case State of Bihar & Anr. vs. Shri P.P.Sharma & Anr. (Supra), it was observed that :

‘Madhaorao J. Scindhia v. Sambhaji Rao MANU/SC/0261/1988 : AIR 1988 SC 709, also does not help the Respondents. In that case the allegations constituted civil wrong as the trustees created tenancy of Trust property to favour the third party. A private complaint was laid for the offence under Section 467 read with Section 34 and Section 120B I.P.C. which the High Court refused

W.P.(Crl.) No.545/2003 Page 9 of 28 to quash under Section 482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own contentions in the complaint, it would be a case of breach of trust or a civil wrong but no ingredients of criminal offences were made out. On those facts and also due to the relation of the settler, the mother, the Appellant and his wife, as the son and daughter-in- law, this Court interfered and allowed the appeal. Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this Court laid down as a proposition of law that in every case the court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and exercise of the power under Section 482 or Article 226 to quash the proceedings or the charge-sheet.‟

24. The case of Madhavrao Jiwajirao Schindia & Ors. vs. Sambhajirao Chandrojirao Angre & Ors. (Supra) was further dealt in the case of Padal Venkata Rama Reddy @ Ramu vs. Kovvuri Satyanarayana Reddy & Ors. JT 2011(8) SC 646) and the observation made is :

‘Thus, the judgment in Madhavrao Jiwaji Rao Scindia (supra) does not lay down a law of universal application. Even as per the law laid down therein, the Court can not examine the facts/evidence etc. in every case to find out as to whether there is sufficient material on the basis of which the case would end in conviction. The ratio of Madhavrao Jiwaji Rao Scindia (supra) is applicable in cases where the Court finds that the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a compromise e.g. matrimonial, property and family disputes etc. etc. The superior Courts have been given inherent powers to prevent the abuse of the process of court where the court finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher than the end of merely following the law. It is not necessary for the court to hold a full fledged inquiry or to appreciate the evidence, collected by the Investigating Agency to find out whether the case would end in conviction or acquittal.’

W.P.(Crl.) No.545/2003 Page 10 of 28

25. Report Sanju alias Sanjay Singh Sengar vs. State of M.P. (Supra) has been relied upon by learned Senior Advocate for the petitioner to explain that for purpose of Section 107 IPC what ‘instigation’ means.

26. This decision relates to offence under Section 306 IPC wherein the appellant was charge-sheeted for abetment to commit suicide on the basis of suicide note left by his sister’s husband. While quashing the charge-sheet, the Supreme Court observed that the deceased was under great stress and depression and he alone was responsible for his death. The ratio of this case has no applicability to the facts of case FIR No.60/2000, P.S. Anti Corruption Branch being under Section 12 of P.C Act.

27. The case law Om Prakash vs. State of Haryana (Supra) is on the effect of delay in lodging the FIR.

28. The petitioner has prayed for quashing of the FIR which has already culminated into chargesheet. The Trial is yet to commence in this case and suffice it to say that whether a case of abetment for the purpose of offence punishable under Section 12 P.C. Act is made out, is required to be dealt with by the Trial Court at the appropriate stage. Similarly, the effect of delay of few hours in registration of FIR cannot be taken into account while considering the prayer for quashing of charge-sheet. Thus placing reliance on Om Prakash vs. State of Haryana (Supra) is of no help to the petitioner.

29. Mr.Aman Lekhi, learned Senior Advocate for the petitioner submitted that a bare perusal of the complaint would reveal that it is fabricated after a well planned move and the motive was to enable

W.P.(Crl.) No.545/2003 Page 11 of 28 Naveen Soni and his family to settle score with the petitioner who had been litigating with them. Learned senior counsel referred to the statement under Section 161 Cr.P.C. of the servant Ashok Kumar as well as wife of the complainant, ACP Rajiv Ranjan to highlight that their version is at variance. While the complaint which is in English refers to some sentences in Hindi also like ‘MAIN JANAB KI SEWA KARNE AAYA HOON, AAP I.O. KO KEH KAR MERA CASE COURT

BHIJWADO‟, statement of servant Ashok Kumar is to the effect that the entire conversation was in English. Not only that despite being holding a high position i.e. ACP, he was hopping from one Police Station to another Police Station for getting the FIR registered. The currency notes kept in sweet box were counted at various stages and being taken to different places which had the effect of tampering with the case property. Attention of this Court was also drawn to the fact that though R.P.Malik on being called to the office remained present there, but he was not arrested on the same day. Rather, later on supplementary statements of the SHOs, P.S.Farsh Bazar & Anand Vihar have been recorded to show the presence of R.P.Malik in the office. It has been urged that in ordinary course if a person visits the senior police officer and offers to pay bribe to which the officer takes offence, natural conduct would be to turn out that person ensuring that he leaves the house immediately by showing him the door immediately which did not happen in this case. Rather, the sweet box with the envelope containing the currency notes remained lying the ante room to the drawing room till it was noticed by the servant while dusting the room. On getting telephonic information about the sweet box and the currency notes, as a police officer, the

W.P.(Crl.) No.545/2003 Page 12 of 28 complainant should have informed the local police station instead of visiting and informing other senior officers and talking to the SHOs of Police Stations Farsh Bazar & Anand Vihar before finally reporting the matter to Anti Corruption Branch. While urging this Court to take into account the fact that the litigation in respect of dishonoured cheque of Rs.15 lacs was going on between the petitioner and Naveen Soni and others, the case FIR No.187/2000 was ultimately sent for trial, thus, vindicating the stand of the petitioner that the complaint lodged by his son-in-law Anoop Minocha was not false and if all these documents are taken into account along with the conduct of the complainant and the manner in which the FIR has been recorded at Anti Corruption Branch after an inordinate delay, this is a fit case where charge-sheet is required to be quashed to save the petitioner from undue harassment and protracted trial and humiliation.

30. I have considered the submissions made by learned Senior Advocate for the petitioner and also perused the record including statements and supplementary statements of the witnesses recorded under Section 161 Cr.P.C.

31. The proposition of law pertaining to quashing of criminal prosecution initiated against the accused, by High Court in exercise of power under Section 482 Cr.P.C. has been dealt with by the Supreme Court in a recent report Satish Mehra vs. State of NCT of Delhi 2013 CriLJ 411 as under:-

“14. Though a criminal complaint lodged before the court under the provisions of Chapter XV of the Code of Criminal Procedure or an FIR lodged in the police station under Chapter XII of the

W.P.(Crl.) No.545/2003 Page 13 of 28 Code has to be brought to its logical conclusion in accordance with the procedure prescribed, power has been conferred Under Section 482 of the Code to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of court. An early discussion of the law in this regard can be found in the decision of this Court in R.P. Kapur v. State of Punjab MANU/SC/0086/1960 : AIR 1960 SC 866 wherein the parameters of exercise of the inherent power vested by Section 561A of the repealed Code of Criminal Procedure, 1898, (corresponding of Section 482 Code of Criminal Procedure, 1973) had been laid down in the following terms:

(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;

(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction;

(iii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and

(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

15. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a

W.P.(Crl.) No.545/2003 Page 14 of 28 pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed.”

32. In yet another report Rajiv Thapar and Ors. Vs. Madan Lal Kapoor (2013) 3 SCC 330, the Supreme Court had the occasion to consider the jurisdiction of the High Court to quash the prosecution at the initial stage. Various parameters to be considered by the High Court while exercising the discretion under Section 482 Cr.P.C. to quash the proceedings have been laid down in the above-noted case. It would be apposite to refer to paras 21 to 23 of the said Report which crystallize the factors to be considered by the High Court in recording its satisfaction while considering the prayer for quashing of the prosecution:-

“21. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to

W.P.(Crl.) No.545/2003 Page 15 of 28 succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.

22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Code of Criminal Procedure, at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the

prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Code of Criminal Procedure the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would

W.P.(Crl.) No.545/2003 Page 16 of 28 persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Code of Criminal Procedure to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure:

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Code of Criminal Procedure. Such exercise of power, besides doing justice to the accused, would save precious

W.P.(Crl.) No.545/2003 Page 17 of 28 court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”

33. Now, it is time to examine the accusations made against the present petitioner and whether on the basis of grounds stated in the petition, the FIR which has already culminated into charge-sheet, satisfies the above parameters laid down by the Supreme Court in Satish Mehra vs. State of NCT of Delhi and Rajiv Thapar and Ors. Vs. Madan Lal Kapoor (Supra).

34. The complainant in this case Shri Rajiv Ranjan ACP Headquarters has addressed the complaint to DCP, Anti Corruption Branch, NCT of Delhi. In order to appreciate the contention of the petitioner, it is necessary to reproduce the complaint and also examine statement under Section 161 Cr.P.C. recorded during investigation of this case to find out whether it is a fit case for quashing of proceedings against the petitioner. The complaint reads as under.

“MOST IMMEDIATE

No.196 IQ.ACP-HQ-East Distt, dated Delhi, dt. 28.11.2000

ACP Sh.D.S.Sandhu

Register a case

Sd/-

28/11/2000

The Deputy Commissioner of Police

Anti Corruption Branch

Govt. of NCT, Delhi

W.P.(Crl.) No.545/2003 Page 18 of 28 Subject: Regarding complaint for registration of a case against Shri R.P.Malik former Executive

Magistrate and Chairman of Lovely Public School, Secondary School, Priyardarshini Vihar, Delhi-

110092, under Prevention of Corruption Act.

Sir/Madam,

A case was registered with Shakarpur Police Station vide F.I.R. No.187/2000 under Section 323/341/506 IPC on the complaint of Shri Anoop Manocha son-in-law of Shri R.P.Malik against Naveen Soni and Vikas Soni who were arrested.

The Soni brothers have filed a complaint with the D.C.P. East that they were falsely implicated by Shri Anoop Manocha at the behest of Shri R.P.Malik with whom he has huge accounts to settle. The D.C.P. transferred the enquiry as well as the case, F.I.R. in question to operation cell which is headed by the undersigned. Shri R.P.Malik had come to my office requesting for filing of the Charge-Sheet against Soni brothers. He was told that Charge-Sheet will be filed after all the facts are ascertained. In the event the Charge-Sheet was not filed, Shri R.P.Malik stands to loose. Today in the morning Shri R.P.Malik came to my residence at about 8.00 A.M. when I was getting ready to an arrangement duty. My domestic help Ashok had opened the door and finding a gentleman in suit and Tie politely had him seated in the drawing room and then informed that somebody has come to meet me. When I saw Mr.R.P.Malik I asked him why have you come here? He said MAIN JANAB KI SEWA KARNE AAYA HOON, AAP I.O. KO KEH KAR MERA CASE COURT BHIJWADO. I told

Mr.R.P.Malik that what he is trying to tell me is absolutely illegal. He wanted to plead further but I told him to leave immediately as he started walking out of my drawing room I retreated to the interior. There is a small guest room before drawing room, which has a bookshelf and a few books by its side, while dusting the room, the domestic help discovered a packet of sweet at about 12.00 noon and took the packet to my wife who asked him to open it. The box of sweets had another brown paper bag of Madhuban

W.P.(Crl.) No.545/2003 Page 19 of 28 Sweets, Madhuban Road, Shakarpur, within which there was white envelope of a firm Archetects the living Anil Mehra, 18, Ansari Road, Daryaganj, New Delhi at top of the envelope it was written Shri R.P.Malik in green ink. The white envelope contains Rs.15,000/- (Fifteen Thousand) in cash. The packet of 100/- notes which is bound by red paper and stapled at one end. Another pack of 100 currency notes of Rs.50/- denomination. The box of sweet is also of Madhuban Sweets. It is wrapped in green decorative papers which is also of Madhuban Sweets and the box was kept in a white polythene packet again of Madhuban Sweet and the box of sweets also had a Visiting Card of Mr.R.P.Malik in it. To confirm it, I called Mr.R.P.Malik to my office and he came here and admitted that he had left the packet in my house while going out in the morning. He apologized for it and said „HUMEIN KHALI HATH JANE KI AADAT NAHIN HAI‟.

I am sending all the above mentioned items as they were left to you for your goodself for registration of a case against Mr.R.P.Malik and appropriate report action against him. The action taken may kindly be informed.

Thanking you,

Time of occurrence 8.00 AM Yours faithfully Add: E-15, Type-IV

NEW POLICE LINES sd/- KINGS WAY CAMP DCP/HQ/OPS/East DELHI-9 28/11/2000 7248685

NPL/5523

Copy to DCP/East for info.”

35. Ashok Kumar working as servant at the house of the complainant was examined under Section 161 Cr.P.C. and the gist of his statement is that he was working as servant at the house of Rajiv Ranjan and

W.P.(Crl.) No.545/2003 Page 20 of 28 addressed him as ‘Papa’ and his wife as ‘Mummy’. On 28.11.2000 at about 8/8:30 a.m one guest came who was wearing coat and tie carrying white colour polythene bag which appeared to be containing sweet box. He disclosed his name as R.P.Malik and enquired about ‘Sahab’. He said yes he was at home and asked him to sit in the drawing room by gesture and went inside to inform ‘Papa’. His ‘Papa’ came to drawing room to meet the guest. His ‘Papa’ was angrily talking to Mr.Malik in English and thereafter that man left through the door of that guest room and after some time his ‘Papa’ left for his office. Thereafter, no other guest came. Ashok has further stated that at around 12 or 12:30 p.m when he was cleaning the house, he noticed white colour polythene bag containing sweet box lying on the chair in the small guest room, which he had seen in the hands of the person who paid visit in the morning. He informed ‘Mummy’ who asked him to open the box. On opening the sweet box, Rs.15,000/- (100 x 100 and 50 x 100) with one visiting card were found. ‘Papa’ was telephonically informed and when he reached home he again made enquiries, took the box, money and other things with him and left.

36. Statement of Smt.Anupam Ranjan, wife of the complainant ACP Rajiv Ranjan is also to the effect that at about 12/12:30 p.m, servant informed her about the packet of sweet lying on the chair in the small guest room and she asked him to open the same. On opening the same, it was found containing Rs.15,000/- kept in an envelope on which R.P. Malik was written in green ink and visiting card of R.P.Malik was also there. She got scared and informed her husband telephonically, who reached home at about 1:30 p.m and took the box and other things with him and left.

W.P.(Crl.) No.545/2003 Page 21 of 28

37. The contents of the complaint by ACP Rajv Ranjan which formed basis of FIR as well the statement of witnesses recorded under Section 161 CrPC, disclose :

(i) The petitioner R.P.Malik visited the house of ACP and inquired from his servant Ashok about the availability of ACP at home. (ii) At the time of visit, the petitioner was carrying a packet appeared to be containing a sweet box.

(iii) The servant made the petitioner sit in the drawing room and informed ACP.

(iv) ACP met the petitioner and on being questioned about the purpose of petitioner to his house, the reply given was ‘MAIN JANAB KI SEWA KARNE AAYA HOON, AAP I.O. KO KEH KAR MERA CASE COURT BHIJWADO‟.

(v) The petitioner was made to leave the place immediately. (vi) Around noon, the servant noticed the packet, which had seen in the hand of petitioner when he visited house of ACP, lying on a chair in the small guest room which was before drawing room. No other visitor had visited the house of ACP in the intervening period. (vii) The packet was opened and contents were checked which was found containing Rs.15,000/- in an envelope bearing the name of petitioner with a visiting card.

(viii) On getting the information from his wife, ACP rushed home and after taking charge of the packet, left home.

(ix) ACP makes a call to R.P.Malik about the packet left by him at his house at the time of his (R.P.Malik) visit in the morning. (x) R.P.Malik apologised saying „HUMEIN KHALI HATH JANE KI

W.P.(Crl.) No.545/2003 Page 22 of 28 AADAT NAHIN HAI‟.

(xi) Complainant ACP Rajiv Ranjan takes various steps by informing the senior officers and getting the FIR registered against the petitioner R.P.Malik.

38. For an offence under Section 12 of P.C. Act, offer to bribe would amount to abetment irrespective of the fact whether cash was placed before the public servant or not and whether he agrees to accept the same or not. The mens rea of the bribe giver is relevant consideration for purpose of offence under Section 12 of the P.C. Act.

39. On perusal of the complaint, I find it difficult to agree with the submissions made by learned Senior Advocate for the petitioner that the chargesheet does not disclose commission of offence under Section 12 of P.C. Act. It is not discernible from the record that ACP Rajiv Ranjan filed a frivolous and vexatious complaint at the behest of Naveen Soni and his family members with whom the petitioner is litigating.

40. The contention of learned Senior Advocate for the petitioner is that this case has been foisted on the petitioner by the ACP in nexus with Naveen Soni and others. When this Court asked learned Senior Advocate for the petitioner to show from record to even derive the inference of so- called nexus, none could be pointed out. The question that arises for consideration is what axe the complainant had to grind in the dispute between R.P.Malik and Naveen Soni and his family or Shri Anoop Minocha, son-in-law of R.P.Malik and Naveen Soni and others. The petitioner claims himself to be a respectable person of the area being Chairman of reputed educational institution as well as Executive Magistrate and Chief Administrative Officer of District and Sessions

W.P.(Crl.) No.545/2003 Page 23 of 28 Court. The conduct of the ACP Rajiv Ranjan in asking R.P.Malik why he has come and his reply “Mein To Janab Ki Sewa Karne Aaya Hun, Aap I.O Ko Kah Kar Mera Case Court Bhijwa Do”, leading to the reaction that the ACP asked him to leave immediately, without ensuring that he escort upto the main gate, cannot be termed as unusual when he is stating that thereafter R.P.Malik started walking out of the drawing room and he retreated to the interior. The subsequent conduct of the ACP on getting information from his residence about the packet left and the currency notes recovered, cannot be judged on the basis of probabilities at this stage, as it is the subject matter of trial. There is no hard and fast rule as to how a person would react in a given situation for the reason that everybody has his own way to react in the given situation and circumstance. The fact remains that the FIR was registered at Anti Corruption Branch, Delhi in the evening though R.P.Malik visited his house at about 8 a.m. in the morning. But it can be inferred from the complaint that the ACP had tried to incorporate the events in the sequence they took place. In case of well planned false implication of the petitioner under Section 12 P.C. Act, the version of the complainant would have been foolproof to the extent that the petitioner would have been got arrested then and there. At the cost of repetition, it can be noted that the basic dispute between R.P.Malik and Naveen Soni was over a property deal which could not materialize and root of the problem was Rs.15 lacs which was paid as advance by R.P.Malik to Naveen Soni and others, but when the transaction could not be completed, it was sought to be refunded through cheque which got bounced. Litigation under Section 138 N.I. Act being initiated by the petitioner, police had hardly any role

W.P.(Crl.) No.545/2003 Page 24 of 28 to play in that dispute. Subsequent disputes between the petitioner and his son-in-law with Naveen Soni and others cannot be said to be of that magnitude so that to help Naveen Soni, the ACP himself would become complainant against the petitioner for the offence under Section 12 P. C. Act. Whether the complaint by the ACP is probable is subject matter of trial and whether ingredients of Section 12 P.C. Act are satisfied so as to warrant trial in the case, the stage is yet to come and it shall be for the Trial Court to hear on this aspect at the stage of charge.

41. Issue requiring appreciation of evidence cannot be dealt with under Section 482 CrPC. In the case Chand Dhawan (Smt.) vs. Jawahar Lal & Ors. 1992 CriLJ 1956, it was observed that „When the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved.‟

42. The Apex Court in the case State of A.P. vs. Gourishetty Mahesh and Ors. (2010) 11 SCC 226 has laid down the guidelines as to when the powers under Section 482 CrPC can be exercised by this Court. In para 12 of the report is extracted as under :-

„12. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing

W.P.(Crl.) No.545/2003 Page 25 of 28 process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short circuit a prosecution and brings about its closure without full fledged enquiry.‟

43. It may be noted that in the ongoing litigation between the petitioner and his son-in-law on the one hand and Navin Soni and others on the other hand, mere filing of chargesheet in case FIR No.187/2000 PS Shakar Pur or FIR in other cases is not sufficient to draw any kind of interference about the correctness of the accusations unless proved during trial.

44. Thus, the submissions made on behalf of the petitioner that filing of chargesheet in case FIR No.187/2000 PS Shakar Pur is sufficient to prove the correctness of the allegations, has to be rejected.

45. The contention of the petitioner that request to the ACP for filing of charge-sheet in case FIR No.187/2000 against Naveen Soni and others could not be termed as illegal is not the issue in this case. The grievance referred to in the complaint of the ACP is that the petitioner brought the sweet box containing an envelope in which Rs.15,000/- were kept and left at the house of ACP. On consideration of the facts and circumstances narrated in the complaint and the statements of the witnesses recorded during investigation, I am of the considered view that the steps delineated in Rajiv Thapar‟s case (supra) remains unsatisfied.

46. Since on examining the chargesheet and the material available on record, it is clear that none of the test laid down in Satish Mehra vs. State of NCT of Delhi and Rajiv Thapar and Ors. Vs.

W.P.(Crl.) No.545/2003 Page 26 of 28 Madan Lal Kapoor (Supra) are satisfied, this petition is bound to be dismissed.

47. However, before parting, it is necessary to note that for the last 10 years, the trial could not proceed for the reason that Trial Court Record was got consigned to Record Room on the basis of submissions made by the petitioner which were factually incorrect.

48. The observation made by the Apex Court in para 15 of the report Santosh De & Anr. vs. Archna Guhar & Ors. (1994) 2 SCC 420, describes such litigants and approach of the High Court towards such litigations. Para 15 of the report read as under :

„15. The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory order is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to their stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind the principle behind Section 465 CrPC. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system.‟

49. The offshoot of foregoing discussion is that there is no merit in

W.P.(Crl.) No.545/2003 Page 27 of 28 this writ petition. Hence, W.P.(Crl.) No.545/2003 is hereby dismissed with no order as to costs.

50. It is informed that LCR is still lying in the Registry. The Registry is directed to send the LCR immediately alongwith copy of this order.

51. The Trial Court shall now proceed with the trial expeditiously. Petitioner is directed to appear before the Trial Court on 29 th May, 2013.

PRATIBHA RANI, J