Delhi High Court
Rajender @ Kallu vs State on 9 September, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. No.375/2015 & Crl.M.(Bail) No.1516/2016
RAJENDER @ KALLU ..... Appellant
Through Mr.Hemendra Jailiya, Adv.
versus
STATE ..... Respondent
Through Ms.Aashaa Tiwari, APP for the State.
Insp.Ramesh Thakur, PS Maurya
Enclave.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE P.S.TEJI
GITA MITTAL, J (Oral)
1. A report has been received from the District Judge (Headquarters)
with regard to the compliance of all the directions made by us in our
judgment dated 1st August, 2014 being Death Reference No.5/2010
entitled State Vs. Jagtar & Ors. The report shall be kept on record.
2. A status report dated 8th September, 2016 under signatures of
Inspt.Mukesh Kumar, SHO of the Police Station Maurya Enclave has
been handed over in Court which has been taken on record. As per this
status report, Smt.Malti Devi, mother of the appellant, is not paralysed
and is under treatment as OPD patient. There is, therefore, no need for
the suspension of sentence of the appellant for the purposes of caring for
her at this stage
3. We had also directed the concerned police to conduct enquiry with
regard to the juvenility of the appellant [email protected] The appellant
has placed before us a certificate dated 1st September, 2016 from the
North Delhi Municipal Corporation Primary School, Pitampura where the
appellant was studying, certifying his date of birth as 1st March, 1990.
Our attention is drawn to the other supporting documents including the
extracts of the caste registration as well as the school register also. An
affidavit of the mother certifying the date of birth of the appellant has
also been placed on record. As per these documents, as on 6th June, 2010,
which was the date of the incident, the appellant was aged nineteen years
and was not a juvenile. No further inquiry is necessary in this regard.
4. During the course of hearing, one of the submissions pressed on
behalf of the appellant is that there was a delay in compliance of the
requirement of Section 157 of the Code of Criminal Procedure whereby
an officer in-charge of a police station is required to forthwith send a
report of commission of an offence which he is empowered to investigate
under Section 156(2) Cr.P.C. to a Magistrate empowered to take
cognizance of such offence upon a police report.
5. Section 157 was enacted when no e-transmission and internet was
available. Today it can be argued that e-registration of FIRs and their
being simultaneously put in the public domain would effectively be in
compliance with the requirements of Section 157 of the Cr.P.C.
6. The legislature has not kept pace with the development in
technology especially so far as Cr. P.C. is concerned. We find that
appropriate amendments have been made in the Evidence Act and in
some other statutes. However, there is no reason why the courts cannot
use technology as available and mould procedural compliances
accordingly without any infraction of the substantive statutory provisions.
7. There are several instances (noted in judicial precedents) where the
prosecution has been unable to explain the delay in the compliance which
has been treated as fatal to the prosecution cases resulting in acquittals of
dangerous crimes.
8. We find that this very objection is being taken in several appeals
challenging convictions for heinous crimes. It is being vehemently
pressed that delayed compliance of this mandatory requirement must be
treated as an effort on the part of the investigating agency to build a false
case against the accused persons and of padding in the investigation. In
this regard, reference can be made to the pronouncement of the Supreme
Court in (2009) 15 SCC 121 State of Kerala Vs. Suresh & Ors.; (2008)
15 SCC 315 NH Muhammed Afras Vs. State of Kerala & (2001) 9 SCC
704 Jang Singh & Ors. Vs. State of Rajasthan.
9. In this regard, we may usefully extract the observations of the
Supreme Court in (2011) 9 SCC 561 Shivlal Vs. State of Chhattisgarh
wherein the Court held thus:-
"18. This Court in Bhajan Singh v. State of Haryana
[(2011) 7 SCCC 421: (2011) 3 SCC (Cri) 241] has
elaborately dealt with the issue of sending the copy of the
FIR to the Ilaqa Magistrate with delay and after placing
reliance upon a large number of judgments including Shiv
Ram vs. State of U.P. [(1998) 1 SCC 149: 1998 SCC (Cri)
278 : AIR 1998 SC 49] and Arun Kumar Sharma v. State of
Bihar [(2010) 1 SCC 108 : (2010) 1 SCC (Cri) 472], came
to the conclusion that CrPC provides for internal and
external checks: one of them being the receipt of a copy of
the FIR by the Magistrate concerned. It serves the purpose
that the FIR be not ante-timed or ante-dated. The
Magistrate must be immediately informed of every serious
offence so that he may be in a position to act under Section
159 Cr. P.C., if so required. The object of the statutory
provision is to keep the Magistrate informed of the
investigation so as to enable him to control the investigation
and, if necessary, to give appropriate direction. However, it
is not that as if every delay in sending the report to the
Magistrate would necessarily lead to the inference that the
FIR has not been lodged at the time stated or has been ante-
timed oir ante-dated or the investigation is not fair and
forthright. In a given case, there may be an explanation for
delay. An unexplained inordinate delay in sending the copy
of the
FIR to the Ilaqa Magistrate may affect the prosecution case
adversely. However, such an adverse inference may be
drawn on the basis of attending circumstances involved in a
case. "
10. We find that pursuant to the judgment dated 6th December, 2010
passed by this Court in W.P. (Crl.) No.468/2010 entitled Court on its
own Motion Vs. State, directions were given to the Delhi Police for
uploading all FIRs which are registered on the website of the Delhi Police
w.e.f. 1st February, 2011. This substantially puts the FIR in the public
domain. Of course, certain reservations qua certain specified offences
with regard to putting the FIR in public domain have been noted by the
court.
11. We are informed that as a result, with the First Information Reports
registered with effect from 1st February, 2011 by all police stations in
Delhi (except those relating to sensitive matters such as sexual offences,
offences pertaining to insurgency, terrorism and of that category &
offences under POCSO Act), are immediately uploaded on the Delhi
Police website.
12. Taking note of the above decision, directions in similar terms have
been issued to all states by the Supreme Court of India vide a direction
passed on 7th September, 2016 in W.P. (Crl.). No.68 of 2016 entitled
Youth Bar Association of India Vs. Union of India & Ors.
13. So far as our understanding goes, the Delhi Police is registering all
FIRs electronically. It is only refraining from putting certain FIRs (as
stipulated by Court order or law) on the website.
14. We note that so far as communication of the first information
report to the Magistrate is concerned, Section 157 of the Cr.P.C. draws no
exception. The compliance is mandatory. There can thus be no
reservation on account of confidentiality and privacy concerns in such
communication.
15. Given the electronic mode of communication which is now
available with the police as well as the Delhi judiciary, we see no reason
as to why the investigating agency should not resort to utilization of e-
transmission of the report to the concerned jurisdictional magistrates with
sufficient to ensure timely compliance of Section 157 of Cr.P.C. This
would effectively obviate all objections which are taken by the accused
persons as well as convicts based on delay in compliance thereof. Most
importantly, it would save valuable time and effort on the part of the
investigating agency whose services are already stretched beyond
capacity and limits. This compliance is mandatory at a stage when the
police may be required to undertake critical investigation say recording of
victim and eyewitness accounts, effecting searches and seizures, tracking
accused persons.
16. We also find that illegibly handwritten police documents may
create impediments to effective investigation. They also may lead to
errors during investigation or even during trial. Certainly, court time is
unnecessarily expended in deciphering the statements and several
memos/documents (of seizures/recoveries/arrests/searches) which several
times are in bad handwritings. It may not be always possible to type out
the documents when prepared. There is no reason, however, why a
correctly typed record is not prepared, as soon as possible after the event.
This would help the police and the trial courts. It would facilitate e-
transmission and expedition in preparation of appeals before higher
courts.
17. But then, there may be difficulties faced by the police, which we
may not be aware of. Or sensitive issues too. However, it cannot be
denied that these areas do deserve immediate and priority attention.
18. Let a copy of this order be furnished to Mr.Rahul Mehra, learned
Standing Counsel (Crl.) for the State. We also forward a copy of this
order to the Commissioner of Police, Delhi as well as to the District
Judges of all districts to suggest the possibility and method of e-
transmission of the reports in compliance with Section 157 of the Cr.P.C.
as well as preparing typed copies of investigation records.
19. Meetings for the purpose shall be convened under the
Chairmanship of the District Judge (Headquarters) for this purpose to
consider as to how modern methods of such transmission shall be
evolved and implemented.
20. It shall be open for the District Judges (Headquarters) to join the
Director Prosecution and Standing Counsel (Criminal) as well as any
other person(s) or authority who may be dealing with e-transmission
processes in the Courts in such deliberations. The Commissioner of
Police shall depute an officer of the rank of Joint Commissioner to
participate in the deliberations.
21. A report in this regard shall be placed by the District Judge
(Headquarters) before this Court within a period of four weeks from
today.
22. The appellant has been produced in custody. There is no need for
producing him again.
Renotify on 19th September, 2016.
Dasti.
(GITA MITTAL)
JUDGE
(P.S.TEJI)
JUDGE
SEPTEMBER 09, 2016
aa
