Devubha Asariyabha Chamadiya vs State Of Gujarat
2021 Latest Caselaw 1944 Guj

              R/SCR.A/5141/2020                            ORDER




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/SPECIAL CRIMINAL APPLICATION NO. 5141 of 2020

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              DEVUBHA ASARIYABHA CHAMADIYA
                            Versus
                    STATE OF GUJARAT
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Appearance:
MR VH KANARA(1881) for the Applicant(s) No. 1
SHIVANGI D VYAS(10117) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
MR MD MEHTA ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                  Date : 10/02/2021

                                   ORAL ORDER

1. RULE. Ms. M.D. Mehta waives service of Rule on behalf of the respondent - State.

2. The petitioner is aggrieved by non-registration of the First Information Report on the basis of his written complaint dated 21.08.2020, addressed by the petitioner to the respondent Nos.3 and 4. It is his say that though cognizable offence is made out in the said complaint, his complaint is not being registered as the First Information Report. In support of his submissions, the learned counsel appearing for the petitioner has relied upon the decision of the Apex Court in the case of Lalita Kumari v. State of Uttar and others, reported in (2014) 2 SCC 1 and State of Telangana v. Habib Abdullah Jeelani and others , reported in (2017) 2 SCC 779.

R/SCR.A/5141/2020 ORDER

3. Both the sides have been heard. Having considered the submissions made by both the sides and the material on record, as also having considered the judgment of the Apex Court in the case of Lalita Kumari (Supra), this Court is of the opinion that the grievance put forth by the petitioner can be put an end to by issuing appropriate directions to the respondent authorities. At this stage, it would be beneficial to quote the relevant paragraphs of the said decision, which reads as under:

"120. 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 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

R/SCR.A/5141/2020 ORDER

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 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 there cord 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."

4. At this stage, it would also be apt to reproduce the relevant paragraph from the decision of the Apex Court in the case of Habib Jeelani (Supra), which reads as under :

R/SCR.A/5141/2020 ORDER

"The exceptions that were carved out pertain to medical negligence cases as has been stated in Jacob Mathew v. State of Punjab. The Court also referred to the authorities in P. Sirajuddin v. State of Madras and CBI v. Tapan Kumar Singh and finally held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, 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. 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."

5. Bearing in mind the aforementioned ratio laid down by the Apex Court as well as the contents of the said complaint made by the petitioner, the respondent Nos.3 and 4 shall look into the said written complaint of the petitioner and lodge the first information report if any cognizable offence is made out therein; if not, for the limited purpose of knowing as to whether cognizable offence is revealed, a preliminary inquiry shall be conducted. The petitioner shall be forwarded a copy of the first information report, if any

R/SCR.A/5141/2020 ORDER

registered, at his residence forthwith. In the event, the respondent Nos.3 and 4 choose not to lodge the first information report, the petitioner shall be communicated in writing the brief reasons accordingly. Such exercise shall be completed by the respondent Nos.3 and 4 at the earliest without further loss of time, but not later than eight weeks from the date of receipt of a copy of this order.

6. If the petitioner is aggrieved by the decision of the respondent Nos.3 and 4, the petitioner may approach the immediate Senior Officer of the respondent No.3 under section 154(3) of the Code of Criminal Procedure, 1973. If the petitioner approaches such Senior Officer under section 154(3) of the Code of Criminal Procedure, he shall look into the complaint of the petitioner and decide the same bearing in mind the dictum of the Apex Court in the case of Lalita Kumari (Supra ) and in the case of Habib Abdullah Jeelani (Supra) within a period of one week from the date of receipt of such complaint.

7. The respondent Nos.3 and 4 and Officer Senior to them as the case may be, should adhere to the time line as directed hereinabove. If the petitioner is not satisfied with the outcome, he can take a legal recourse thereafter to lodge private complaint or any other recourse which is permissible in accordance with law.

8. With the above direction, present petition stands disposed of accordingly. Rule is made absolute to the extent aforesaid.

Registry to communicate this order through Email to the concerned Authorities.

(NIKHIL S. KARIEL,J) Y.N. VYAS