Ganesh S Hegde S/O Shankrappa ... vs The State Of Karnataka
2022 Latest Caselaw 3899 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 08TH DAY OF MARCH, 2022
                          BEFORE
        THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

        WRIT PETITION No.100746/2022 (GM-POLICE)

BETWEEN

GANESH S. HEGDE,
S/O. SHANKRAPPA HEGADE,
AGE 61 YEARS, OCC: AGRICULTURIST,
R/O. ATTIMURD, POST HEROOR,
TALUK : SIDDAPURA, PIN : 581450
                                               ... PETITIONER
(BY SHRI. VISHWANATH BHAT, ADVOCATE
FOR SRI. NARAYAN V. YAJI, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA,
      DEPARTMENT OF HOME AFFAIRS,
      VIDHANA SOUDHA, DR. AMBEDKAR VEEDHI,
      BENGALURU-560001.

2.    THE TAHSILDAR SIDDAPURA,
      UTTAR KANNADA DISTRICT - 581355.

3.    THE DEPUTY SUPERINTENDENT OF POLICE,
      SIRSI, UTTAR KANNADA DISTRICT,
      PIN : 581401.

4.    THE INSPECTOR OF POLICE,
      SIDDAPURA TALUKA,
      UTTAR KANNADA, DISTRICT-581355
                                             ... RESPONDENTS

(SHRI. SHIVAPRABHU HIREMATH, AGA FOR RESPONDENTS)

    THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF CONSTITUTION OF INDIA, READ WITH SECTION 482 OF
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CR.P.C., PRAYING TO ISSUE A WRIT OF MANDAMUS AND DIRECT
THE RESPONDENT NO.2 TO CONSIDER THE REPRESENTATION OF
THE PETITIONER DATED 01.02.2022 VIDE ANNEXURE-E TO THE
WRIT PETITION AND ALSO DIRECT THE 3RD RESPONDENT TO
REGISTER FIR IN PURSUANCE OF A COMPLAINT SUBMITTED BY
THE PETITIONER ON 20.01.2022 VIDE ANNEXURE-D TO THE WRIT
PETITION AS IT IS ILLEGAL AND UNCONSTITUTIONAL.

     THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:

                                ORDER

1. The petitioner is before this Court, seeking for the

following reliefs:

        (i)    Issue a writ of mandamus and direct the
        respondent      No.2.     to   consider      the
        representation     of   the  petitioner  dated

01.02.2022 vide Annexure-E to the writ petition and also direct the 3rd respondent to register FIR in pursuance of a complaint submitted by the petitioner on 20.01.2022 vide Annexure-D to the writ petition as it is illegal and unconstitutional.

(ii) Issue a writ, mandamus, direction or declaration or pass such other orders as this Hon'ble Court deems fit under the facts and circumstances of the case, to meet the ends of justice.

2. The grievance of the petitioner is that, the

petitioner on 20.01.2022, at about 10.00 a.m. on

account of his sister and her husband having

entered the property of the petitioner with 30

gunda elements and removed the standing Areka

Nut crop by force and threatened.

3. The petitioner immediately called the respondent

No.4 over telephone however no action was taken.

Despite the first information having been provided,

no complaint was registered. Hence, the petitioner

called the police helpline No.112 and informed

about the non-cooperation of the 4th respondent

and for registration of FIR, despite which no action

has been taken. Subsequently, the petitioner

approached respondent No.3 the Deputy

Superintendent of Police, requesting him to initiate

action.

4. The Deputy Superintendent of Police had directed

the 4th respondent Inspector of Police to take action

despite which the 4th respondent has not registered

a complaint, but called upon the petitioner and his

sister to come to the Police Station along with the

documents relating to the property for the purpose

of enquiry.

5. It is on the above basis, the petitioner is before this

Court contending that, the respondents have not

registered an FIR in pursuance of first information

provided by the petitioner and therefore, his rights

have been violated so also the procedure

prescribed by the Apex Court in the case of Lalita

Kumari Vs. Government of Uttar Pradesh and

others, reported in (2014) 2 SCC 1.

6. Sri. Narayan V. Yaji, learned counsel for the

petitioner would submit that, since the petitioner

had informed the 4th respondent and or the Police

helpline about the commission of a cognizable

offence, an FIR ought to have been registered

which till date has not been registered. On this

ground, he submits that, the relief as sought is

required to be granted.

7. Sri. Shivaprabhu Hiremath, learned AGA would

however submit that, there is no call received by

the 4th respondent, a call was made only to the

police helpline No.112, the operator had informed

the person attending the emergent call in the sub-

police station, who in fact had visited the spot and

having found that there are some disturbance had

directed the persons present there not to cause any

nuisance and had asked them to attend to Police

Station along with the documents of the disputed

property.

8. Though the petitioner's sister attended to the

enquiry along with the possession receipt and

Judgment copy, the petitioner did not attend to the

enquiry and as such his complaint was not

registered.

9. He further submits that, the petitioner directly

approached the Office of the Deputy

Superintendent of Police the respondent No.3,

complaining about the trespass to the land when

respondent No.3 forwarded the same to the

respondent No.4 seeking for a report in the matter.

10. After receipt of the information from respondent

No.3, despite respondent No.4 making various

phone calls to the petitioner, the petitioner did not

come forward or assist in the enquiry, therefore, no

action has been taken, the writ petition has filed is

misconceived and no relief can be granted in the

present matter.

11. These being the submissions by both the counsels,

the point that would be required to be determined

by this Court is "Whether on information being

received, either on the police helpline or directly to

a police station, the concerned Officer can carryout

a enquiry, requiring the complainant to attend an

enquiry before registering of a complaint?"

12. This aspect is no longer a res integra. The Apex

Court in the case of Lalita Kumari's case (supra)

has extensively dealt with the matter and has

concluded on the applicability and the procedure to

be followed as also issued various directions. The

same are reproduced hereunder for easy reference:

"120. In view of the aforesaid discussion, we hold:

120.1. The 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.

120.2. 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.

120.3. 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.

120.4. 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.

120.5. 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.

120.6. As to what type and in which cases preliminary inquiry is to 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.

120.7. 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.

120.8. Since the General Diary/Station Diary/Daily Diary is the record 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."

13. A perusal of the above indicates that, whenever any

information is received disclosing a commission of a

cognizable offence, there is no preliminary enquiry

which is permissible and FIR is required to be

registered by the person receiving information. It is

only when the information received does not

disclose a cognizable offence, a preliminary enquiry

could be conducted to ascertain if there is a

cognizable offence committed or not. If the enquiry

discloses the commission of a cognizable offence an

FIR must be registered.

14. These being the categorical findings of the Apex

Court, applying the same to the present case, there

was a call alleged to have been made by the

petitioner to the respondent No.4 complaining

about the trespass by his sister, her husband and

30 gunda elements into his property and the

removal of the standing Areka Nut crop in the said

property. This aspect is denied by the respondents.

However, it is admitted that there was a call made

to the police helpline Number on "112", informing

the said police helpline about the trespass and

removal of Areka Nut.

15. Once, such an information has been provided by

any citizen to the police helpline or to the police

station and that information discloses the

commission of a cognizable offence as in this case,

inasmuch as the trespass into the property of the

petitioner and removal of Areka Nut is a cognizable

offence in terms of Sections 441 and 427 of the

Indian Penal code. The information disclosing the

offence ex facie being cognizable there was no

enquiry which was required to be conducted as

sought to be contended by the learned AGA. The

decision of the Apex Court in the case of Lalita

Kumari (supra) is very clear.

16. The Apex Court has also stated that in the event of

a Police officer not registering the offence when a

cognizable offence is disclosed, action must be

taken against the erring officials, who do not

register an FIR.

17. In the aforesaid circumstances and on the basis of

the aforesaid reasoning, I pass the following:

ORDER

(a) A Mandamus is issued, directing the

respondent No.2 to consider the

representation of the petitioner dated

01.02.2022 and register the FIR in

pursuance of the complaint submitted by the

petitioner on 20.01.2022 and thereafter

investigate the matter.

(b) The Superintendent of Police, Uttara

Kannada District is directed to enquire into

the matter and take suitable action against

the respondent No.4 for violation of the

directions issued by the Apex Court in the

case of Lalita Kumari (supra) and submit a

report to this Court, within a period of eight

weeks from today.

(c) With the above observation, the writ

petition stands allowed.

Sd/-

JUDGE

SVH