JUDGMENT V.S. Aggarwal, J.
1. Mrs. Pushpa Devi (since deceased) had filed the present petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking a direction for registration of a case under Section 302 Indian Penal Code read with Section 120B of the said Code for the murder of the son of the petitioner and for seeking a direction to Central Bureau of Investigation to investigate.
2. Ram Babu Sharma was the constable on duty at the residence of Deputy Commission of Police. it is alleged that his duty of 5th April, 1999 was from 8.00 PM to 8.00 AM of 6th April, 1999. On 6th April, 1999 Ram Babu Sharma was found injured/wounded in Children Park, India Gate which is stated to be 300 to 400 yards from the residence of the place where he was on duty. Some persons saw Ram Babu in an injured condition and one of them informed the watchman Hari Ram and the police control room van standing nearby. He was removed to Ram Manohar Lohia Hospital. The family of Ram Babu was also informed. Ram Babu Sharma it is stated was not in a position to speak and by 8.10 AM he was declared to be dead. Petitioner contends foul play and her assertion is that it is not a case of suicide rather it is a case where deceased Ram Babu had been fatally wounded and therefore by virtue of the present petition it is prayed that respondents should be directed to register First Information Report already referred to above and for transfer of the investigation to an independent agency.
3. During the pendency of the petition Mrs. Pushpa Devi and died and the father of the deceased Ghanshyam Das was transposed as the petitioner.
4. The respondent has submitted the reply and pointed that on 6th April, 1999 in pursuance of the receipt of daily dairy No. 36-A at 6.20 AM Sub Inspector Ram Niwas and Constable Sanjeev Kumar reached Children Park. They had found lost of blood and two empty cartridges at the spot. On enquiries Sub Inspector came to know that injured has already been taken to Ram Manohar Lohia hospital by the police control room van. The officer in charge of the police station Tilak Marg along with other members of the staff reached the hospital. It was found that injured Ram Babu was undergoing treatment in emergency ward. Sub Inspector Ram Niwas collected Medico Legal Report at 6.55 AM. Ram Babu, Constable was declared dead at 8.10 AM. Thereupon the site was re-visited by the police officers. The blood earth stained earth was picked up, two empty cartridges were also picked up from the spot along with 18 live cartridges. The members of the family of the deceased had been informed and inquest proceedings had been drawn.
5. It has further been asserted that Dr. G.K. Sharma, Professor and Head of the Department of Forensic Medicines in Smt. Sucheta Kriplani Hospital conducted the postmortem. In the opinion of doctor death could have been caused by "Coranio Cerebral damage as a result of fire-arm injury". Statement of other members who could throw light on the accident was recorded. None of the statement gave substantial information as to the cause, attempt, motive of sequence of the events leading to the death of Ram Babu Sharma. Since it was not possible to reach the conclusion the matter was discussed and inquest was kept pending. However, Dr. G.K. Sharma based his subsequent opinion on circumstantial evidence, type of fire arm used and its location on the same. He concluded that all the aforesaid factors are consistent with likely suicidal attempt by the individual concerned. The father of the deceased had complained to the Commissioner of Police who transferred the enquiry to Crime Branch. Accordingly, all relevant papers with Tilak Marg Police Station were handed over to Sub Inspector Jitender of Special Crime team. The crime branch conduced a thorough enquiry. During discussion the Commissioner of Police raised certain queries. A detailed note based on circumstantial evidence and scientific evidence had come on record and it was agreed that it was a case of suicide. It has been mentioned further that FSL Malviya Nagar had re-enacted the scene of incident before the report was finalized.
6. The short question that comes up for consideration which is subject matter for consideration is as to whether in the facts of the case the court should direct registration of the First Information Report and transfer the investigation to any other independent agency or not.
7. On behalf of the petitioner it was vehemently contended that the petitioners were apprehending certain facts or in other words foul play. They contend that Ram Babu had been murdered and therefore First Information Report should be recorded and further keeping in view the nature of the reply filed on behalf of the respondent it is prayed that investigation be handed over to the Central Bureau of Investigation. The leaned counsel for the State with equal vehemence contended that the petitioners have been complaining and meeting the Commissioner of Police were heard and looked into and it was found that it was a case of suicide and therefore there was no ground for further investigation.
8. Section 154 of the Code of Criminal Procedure in its stark brevity cast a duty on the concerned police station to record the First Information Report when it discloses a cognizable offence. When complaint is made with respect to a cognizable offence the information can be given orally or in writing. The same has to be reduced into writing. Certain exceptions have also creped in.
9. The Supreme Court in the case of State of Haryana and Ors. v. Bhajan Lal had gone into this controversy and in unqualified terms drew a distinction as to what would be a reasonable report and credible information, it was ultimately concluded and law laid down that if information disclosed is a cognizable offence the police officer should record the First Information Report. The relevant law in this regard as referred to above reads:-
"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 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. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1961) 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 an information and that information must disclose a cognizable offence.
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."
10. It is true that in the later part of the judgment the Supreme Court had gone ahead and referred to certain preliminary investigation not like an enquiry or regular investigation in certain cases. The same is not relevant at this stage. A Division Bench of this court in the case of Satish Kumar Goel v. State and ors. 2000 II AD (Delhi 841 has also gone into the same controversy and the legal position therefore was enunciated to be:
"15. Thus, the legal position appears to be that where allegations made in the complaint lodged before the police clearly and specifically disclose commission of a cognizable offence, the officer in charge of the concerned police station is duty bound to register an FIR. However, where the information recorded in the complaint is uncertain, indistinct and not clearly expressed which creates a doubt as to whether the information laid before the in charge of the police station discloses commission of a cognizable offence there from, some enquiry should proceed before the registration of an FIR."
11. More recently the Supreme Court in the case of All India Institute of Medical Sciences Employees Union v. Union of India (1996) II SCC 582 also dealt with the same controversy. A similar request had been made for registration of first information report against the Director of All India Institute of Medical Sciences for the offence punishable under Section 409 Indian Penal Code. The Supreme Court keeping in view the said controversy held:-
"4. When the information is laid with the police but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused.
5. In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. The High Court, therefore, though for different reasons, was justified in refusing to grant the relief as sought for."
12. Another Division Bench of this court in Criminal Writ No. 1162/2001 decided on 24th January, 2002 once again went ahead with the same controversy and held:-
"22. From the aforesaid precedents it is clear that following conclusions can conveniently be drawn: (i) whenever it is brought in writing or otherwise that a cognizable offence has been committed in terms of the decisions in the case of Bhajan Lal (supra) a First Information Report should be recorded (ii) If the information given is not clear or creates a doubt as to whether it discloses a commission of a cognizable offence some enquiry can precede before registration of the offence.
(iii) in case of a complaint of such nature made against public servants it is doubtful or similarly if it is found that ex facie there is some un-truth in the same, an enquiry can be conducted before registration of the case (iv) the enquiry need not partake that of an investigation. It only is a preliminary enquiry that can be held."
13. From the aforesaid it is clear that if the information is not clear or creates a doubt as to whether it discloses commission of cognizable offence or complaint is of such a nature particularly of doubtful nature that some enquiry should be held in that event some preliminary enquiry can take place but it will not part-take that of an investigation. The decision in the case of Bhajan Lal (supra) normally would be adhered to.
14. During the course of submissions our attention has been drawn to certain facts by either side. We deem it unnecessary to invoice the court into this controversy because it is basically a matter to be gone into by the investigating agency. However, it was pointed that in the medical report prepared by a junior resident doctor following injuries had been found on the person of the deceased:-
"Clean lacerated wound approximately 5 cm at Right side of the Forehead near Right eye brow with.....
Clean lacerated wound approximately 5 cm at Right Side of left side of forehead in front of left Pinna Nose Bleed ++ Ear Bleed++ Dropping Eye Bal....
Swelling at underside of scalp ?? fire Arm injury"
15. It was urged that in suicide attempt a person would not be able to shoot on two sides of his forehead. These are matters to be looked into by the investigating agency but in the peculiar facts it appears that keeping in view the nature of the complaint, the first information report could well have been recorded because even if some preliminary enquiry was to take place it should not have partake that of further investigation. At this stage, therefore, we deem it unnecessary to go further into the same but direct that (a) on basis of the complaint of the petitioner addressed to the Commissioner of Police, a First Information Report should be recorded at the concerned police station. We further direct that (b) since Delhi Police had already, as pointed in the reply, come to a conclusion and the first information report is being recorded, at this stage investigation should be handed over to the Central Bureau of Investigation (c) by way of abundant caution nothing said herein should be taken as any expression of opinion on the merits of the matter (d) the record of the enquiry shall be handed over to Central Bureau of Investigation.