Smt. Vijaya Vasant Nikam vs The State Of Maharashtra And Ors
2012 Latest Caselaw 182 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION




                                                                               
                         WRIT PETITION NO.3386 OF  2012

     Smt. Vijaya Vasant Nikam




                                                       
     Aged 60 years, residing at
     C/o Sou. Smita Shankar Dasvadkar,
     At & Post Warje Malwadi, Surabhi Colony, 
     Survey No.134/11-A/2, Near Masjid, 




                                                      
     Pune-411 052.                                              ... Petitioner

              V/s.




                                         
     1.       The State of Maharashtra and Ors.
     2.       The Sub-Divisional Police Officer,
              Baramati Division, Baramati,
                         
              District Pune.
     3.       Inspector of Police,
              Vadgaon Nimbalkar Police Station,
                        
              Taluka Baramati, Dist. Pune                       ... Respondents

     Mr. Ganesh Bhujbal, for the petitioner.
     Mrs. M.M. Deshmukh, A.P.P., for State.
      


                                  CORAM  :  A.S. OKA & 
   



                                               SMT. SADHANA S.JADHAV, JJ.

DATE : 15th OCTOBER, 2012

ORAL JUDGMENT (PER : A.S. OKA, J.)

1. Heard learned counsel appearing for the petitioner and learned

A.P.P. for State. Rule. Learned A.P.P. waives service for the

Respondents. Taken up for hearing.

2. The grievance of the petitioner in this petition under Article 226

of the Constitution of India is that though the petitioner has made a

complaint dated 26th August, 2011 with Vadgaon Nimbalkar Police

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Station, Taluka Baramati, District Pune alleging the commission of

cognizable offence by certain persons, no action has been taken on the

basis of said complaint. On the last date, we directed the learned A.P.P.

to take instructions. However, the learned A.P.P. states that concerned

Officer has not given instructions.

3. It will be necessary to make a reference under Section 154 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as "said

Code"). Sub-section 1 of Section 154 uses the word "shall". Sub-

section 1 of Section 154 came up for consideration before a Full Bench

of this Court. In the case of Sandeep Rammilan Shukla V/s. State of

Maharashtra & Ors. [(2009)(1) Mh.L.J. page 97] , the Full Bench held

that the expression "shall" appearing in section 154 of the said Code is

mandatory and the section places an absolute duty on the part of the

officer-in-charge of police station to record information and place

substance thereof in the prescribed book, when the information

supplied or brought to his notice discloses commission of a cognizable

offence. Full Bench held that the law does not specifically prohibit

conducting of a limited preliminary inquiry, prior to registration of First

Information Report in exceptional and rare cases by the officer-in-

charge of Police Station. The Full Bench has laid down the manner in

which the preliminary enquiry should be held. Full Bench held that

such enquiry shall be completed expeditiously and in any case not later

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than two days. Thus, the Rule is that when information relating to the

commission of a cognizable offence, even if given orally to an officer-in

charge of police station, the same shall be reduced in writing in the

manner provided under sub-section 1 of Section 154 of the said Code.

Thus, it is obvious that what is provided in sub-section (1) of Section

154 is the mandatory duty. The law enjoins the said officer to act

immediately and to register the offence without any loss of time so that

the investigation starts immediately. The recourse to the preliminary

inquiry can be taken only in rare and exceptional cases. The Full Bench

has fixed outer limit of two days to hold such inquiry.

4. We may also make reference to the sub-section 3 of Section 154

of the said Code. It provides that in the event, there is a refusal on the

part of the officer-in-charge of the Police Station to record information

referred in sub-section (1) of Section 154, the aggrieved person is

entitled to 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. Even this sub-section

incorporates a mandatory provision which enjoins the Superintendent

of Police to take action without any delay.

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5. Large number of petitions under Article 226 of the Constitution

of India are being filed in this Court making a grievance regarding

failure to register the offence in accordance with sub-section 1 of

Section 154 of the said Code, though either complaint in writing is

lodged with the concerned police station or the statement of the

complainant is recorded by the Police. Such petitions are being filed

only because the concerned officer of the police do not care to inform

the complainants about the action taken on the complaints. In view of

the decision of the Full Bench, at highest and that also in exceptional

and rare cases, the concerned officer has time of two days to hold

preliminary enquiry. In all other cases, the officer is expected to act

immediately. Only in exceptional cases, he gets time of two days. The

very fact that sub-section (3) of Section 154 gives a remedy to the

person aggrieved by the failure on the part of the officer to record the

information shows that the duty is cast on the police officer with whom

the complaint is filed, to immediately inform the complainant about the

refusal to record the information referred to under Sub-section (1) of

Section 154 of the said Code and officer-in-charge of the police station

is duty bound to issue communication to the complainant of refusal on

his part to record information. Only if such information is

communicated to the complainant that he will be in a position to avail

of the remedy under Sub-section (3) of Section 154 of the said Code.

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6. We are conscious of the law laid down by the Apex Court in the

decisions in the cases of Aleque Padamsee & Ors. Vs. Union of India

& Ors.(2007)(9) SCALE SCC 275 and Sakiri Vasu Vs. State of U.P. &

Ors. (2008)(2) SCC 409. It is laid down that normally a Writ Court

shall not issue a writ directing registration of an offence in view of

availability of statutory remedies under the said Code.

7. Nevertheless to enable the complainant to expeditiously avail of

the statutory remedies, the minimum which is expected is that he

should be immediately informed by the officer-in-charge of the police

station regarding fate of the complaint. If the police officer decides to

register information in accordance with sub-section(1) of Section 154,

for which he has hardly any choice, he is duty bound to give a copy of

the information recorded to the complainant free of cost. If he is of the

view that a case of commission of cognizable offence is not made out,

he must forthwith inform the complainant accordingly by a

communication. We are of the view that the Director General of Police

should issue directions to all police stations in the State directing the

officers-in-charge of the police station to forthwith issue a

communication to the complainants about refusal to record the

information in terms of Sub-section (1) of Section 154. Appropriate

time limit which should be very short will have to be provided for

issuing said communication so that the very object of lodging complaint

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should not be frustrated. If there is a gross delay in issuing

communication, even the remedies provided under the said Code in a

given case may become redundant. Such direction is required to be

issued to ensure that complainants get opportunity to avail of the

remedies under the said Code.

8. Hence, we dispose of the petition by passing following order :-

(i) We direct the third respondent to

communicate in writing to the petitioner the decision taken on the basis of the complaint dated

26th August, 2011 within a period of one week from today.

(ii) We hereby direct the Director General of Police to issue directions to all the police stations in the State as indicated in the earlier part of this

order.

(iii) For reporting compliance, this petition shall be placed on daily board on 1st November, 2012 under the caption of "Directions". All parties to act

upon an authenticated copy of this order.

      ( SMT. SADHANA S.JADHAV, J )                                           ( A.S. OKA, J ) 





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