Full Judgment Text
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CASE NO.:
Appeal (crl.) 1047 of 2006
PETITIONER:
Lallan Chaudhary & Ors
RESPONDENT:
State of Bihar & Anr
DATE OF JUDGMENT: 12/10/2006
BENCH:
H.K.SEMA & P.K.BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1047 OF 2006
Arising out of
SPECIAL LEAVE PETITION (CRL.) NO. 620 OF 2003
H.K.SEMA,J.
Leave granted.
This appeal is preferred by the accused, nine in numbers,
against the judgment and order dated 8.10.2002 passed by
the High Court whereby the High Court directed the concerned
Magistrate to proceed in the matter in accordance with law as
contained in Section 209 of the Code of Criminal Procedure.
We have heard learned counsel for the appellant as well
as the learned public prosecutor for the State.
The controversy involved in this appeal is in short
compass being purely a question of law and it may not be
necessary to recite the entire facts leading to the filing of the
present appeal.
Complaint Case No. 223C/1996 was filed before the Sub-
Divisional Judicial Magistrate, Sikrahana at Motihari, District
East Champaran by Yogendra Prasad - the respondent herein,
to the effect that on 7.6.1996 at about 6.00 PM the accused \026
Lalan Chaudhary, Din Bandhu Chaudhary, Sanjeev Kumar @
Ghutan, Lalbabu Prasad, Bhola Shah, Nageshwar Shah,
Bhagrit Raut, Joka Majhi and Suruj Raut having formed
unlawful assembly and armed with Lathi, Fatta, Farsa,
Nalkatwa and Rifle, illegally entered in the residential house of
the complainant and indulged in ’Loot-Paat’ of household
articles and also teased female members of the family. When
the complainant objected to the accused, the accused persons
gave severe beating with slaps, fists and fatta and caused
bodily injuries to the appellant. The complaint further
disclosed that the accused looted away the household articles
comprising utensils, gold articles, silver articles, wearing
apparels etc. including cash. The total value of the loot was
Rs. 19,000/-, as detailed in the complaint. In the said
complaint case itself, filed before the Sub-Divisional Judicial
Magistrate, the offences under Sections 147, 148, 149, 448,
452, 323 and 395 were disclosed.
It appears that the Sub-Divisional Judicial Magistrate,
before whom the complaint was lodged, had endorsed the
complaint to the SHO, Police Station \026 Ghorasahan, District
East Champaran to register an FIR and to investigate. The
SHO of the concerned Police Station, however, registered the
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case under Sections 452/380/323/34 IPC against the
accused. Ultimately, the charge-sheet was submitted by the
Police only under Sections 452/323/34 IPC. It would,
therefore, clearly appear that no case was registered against
the accused for offences disclosed in the complaint under
Sections 147, 148, 149, 448 and 395 IPC and no investigation
was carried out by the Police in respect of the aforesaid
sections of law and committed grave miscarriage of justice.
Section 154 Cr.P.C. reads:
"154. Information in cognizable cases. \026 (1) Every
information relating to the commission of a
cognizable offence, if given orally to an officer in
charge of a police station, shall be reduced to
writing by him or under his direction, and be read
over to the informant; and every such information,
whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it,
and the substance thereof shall be entered in a
book to be kept by such officer in such form as the
State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-
section (1) shall be given forthwith, free of cost, to
the informant.
(3) Any person, aggrieved by a refusal on the part of
an officer in charge of a police station to record the
information referred to in sub-section (1) may send
the substance of such information, in writing and
by post, to the Superintendent of Police concerned
who, if satisfied that such information discloses the
commission of a cognizable offence, shall either
investigate the case himself or direct an
investigation to be made by any police officer
subordinate to him, in the manner provided by this
Code, and such officer shall have all the powers of
an officer in charge of the police station in relation
to that offence."
Section 154 of the Code thus casts a statutory duty upon
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.
In the case of Ramesh Kumari v. State (NCT of Delhi)
and Ors. (2006) 2 SCC 677 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.
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 enquiry as to whether the
information, laid by the informant is reliable and genuine or
otherwise and refuse to register a case on the ground that the
information is not relevant or credible. In other words,
reliability, genuineness and credibility of the information are
not the conditions precedent for registering a case under
Section 154 of the Code.
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In the present case, undisputedly, the cognizable offences
disclosed in the complaint, were under Sections 147, 148,
149, 448, 452, 323 and 395 IPC. The complaint was filed
before the Sub-Divisional Judicial Magistrate and the same
was endorsed to SHO of concerned Police Station for
registering the FIR under Section 154 of the Code. The
concerned SHO of the Police Station registered the case only
under Sections 452/380/323/34 IPC. Section 395 IPC, which
had been disclosed in the complaint, was excluded from the
purview of the FIR and resultantly no investigation was carried
out by the Police in terms of Section 156 and 157 of the Code
of Criminal Procedure. It is well settled principle of law that in
criminal trial, investigation is proceeded by an FIR on the
basis of written complaint or otherwise disclosing the offence
said to have been committed by the accused. In the present
case, a grave miscarriage of justice has been committed by the
SHO of concerned Police Station by not registering an FIR on
the basis of offence disclosed in the complaint petition. The
concerned police officer is statutorily obliged to register the
case on the basis of the offence disclosed in the complaint
petition and proceed with investigation in terms of procedure
contained under Sections 156 and 157 of the Code. The FIR
registered by the Police would clearly disclose that the
complaint for offence under Section 395 IPC has been
deliberately omitted and, therefore, no investigation,
whatsoever, was conducted for the offence under Section 395
IPC.
It is unfortunate that the Trial Magistrate has failed to
notice that in the complaint filed before the Sub-Divisional
Judicial Magistrate an offence under Section 395 IPC has been
disclosed, amongst others. The Trial Magistrate accepted the
charge framed under Sections 452/323/34 IPC mechanically
without application of mind. The District and Sessions Judge
also failed to take notice the miscarriage of justice by the Trial
Judge. It is, in these circumstances that the High Court has,
in our view, justly corrected the error committed by two
Courts. In our view, therefore, the impugned order of the High
Court does not suffer from any infirmities.
Mr. Tripurari Ray, learned counsel appearing for the
appellant contended that the complainant has not challenged
the charges framed under Sections 452/323/34 IPC. It is also
contended that the appellants are facing criminal trial for the
last 14 years and if the committal proceedings are initiated by
the trying Magistrate pursuant to the directions of the High
Court, it would impede speedy trial and the same would be
violative of Article 21 of the Constitution. No doubt, quick
justice is sine-qua-non of Article 21 of the Constitution but,
when grave miscarriage of justice, as pointed out in the
present case, is committed by the Police Officer, the ground of
delay of disposal of cases or otherwise would not scuttle the
miscarriage of justice. Similarly, we are of the view that in the
given facts and circumstances of this case, the accused
themselves would be liable to be blamed for the delay, if any.
With regard to the submission of the learned counsel for
the appellant that the complainant has not challenged the
non-framing of charge under Section 395 IPC, the same is not
borne out from the record. In fact, an application was filed by
the learned Public Prosecutor before the trying Magistrate
under Section 216 of the Code of Criminal Procedure for
alteration of charge under Section 395 of the IPC, which was
rejected by the trying Magistrate, which in our view
erroneously.
In the view that we have taken, we do not see any
infirmities in the impugned order of the High Court which
would warrant our interference. The appeal is devoid of merits
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and is, accordingly, dismissed.