Karnataka High Court
Sri M Prakash vs Sri M Vinayaka on 25 January, 2023
Bench: M.Nagaprasanna
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WP No. 20269 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2023 R
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 20269 OF 2022 (GM-POLICE)
BETWEEN:
1. SRI. M. PRAKASH
S/O LATE C. MUTHAPPA REDDY
AGED ABOUT 36 YEARS
#216/217, MUTHAPPA
REDDY BUILDING,
FIRST FLOOR,
COTTONPET MAIN ROAD
BANGALORE-560 053.
...PETITIONER
(BY SRI.M. PRAKASH, PARTY IN PERSON)
AND:
1. SRI. M. VINAYAKA
Digitally signed
by PADMAVATHI AGED ABOUT 38 YEARS
BK
NO.4, GROUND FLOOR-A BLOCK
Location: HIGH
COURT OF SARANYA SHANTINIKETAN APARTMENT,
KARNATAKA VINAYAKA NAGARA,
HAGADURU, WHITEFIELD,
BANGALORE-560 066.
2. THE STATE OF KARNATAKA
BY THE INSPECTOR OF POLICE
COTTON PET POLICE STATION,
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WP No. 20269 of 2022
#149, COTTONPET MAIN ROAD,
COTTONPETE, BENGALURU-560 053.
...RESPONDENTS
(BY SRI. M. VINOD KUMAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO- ISSUE
DIRECTION OR ORDER FOR APPOINTING ANY OTHER HIGHER
RANK POLICE OFFICER TO INVESTIGATE THE COMPLAINT OF
THE PETITIONER IN PCR 7840/2022 AND TO REGISTER FIR
AGAINST THE R1 AS PER ANNEXURE-D; AND ETC.,
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking a direction for
appointment of any other Police Officer higher in rank, to
investigate the crime registered in Crime No.153 of 2022,
which arose out of a private complaint registered in
P.C.R.No.7840 of 2022, pending before the 31st Additional Chief
Metropolitan Magistrate, Bangalore City and further seeking a
direction to the 2nd respondent to recover materials that have
been stolen from his house.
WP No. 20269 of 2022
2. Heard the petitioner in-person and Sri M.Vinod Kumar,
learned Additional Government Advocate appearing for
respondent No.2.
3. Facts adumbrated are as follows:-
The petitioner alleges that the 1st respondent in the
morning hours of 26-03-2021, forcibly broke open the doors of
residence of the petitioner, thieved many articles in the house
which were home appliances, fitness equipment, vehicle keys
among other valuable articles. The reason for the alleged
incident, according to the narration was that, the petitioner had
filed a civil suit in O.S.No.4299 of 2020, which was seeking
partition of the family properties. It is the averment that, to
threaten the petitioner and force him to withdraw the partition
suit, the alleged incident had been planted by the 1st
respondent. Based upon the said incident, the petitioner
registered a private complaint before the jurisdictional
Magistrate invoking Section 200 of the Cr.P.C. for offences
punishable under Sections 380, 503, 410, 414, 425, 442, 451
read with Section 34 of the IPC.
WP No. 20269 of 2022
4. The learned Magistrate by his order dated
29-04-2022 directs registration of the complaint in PCR,
registered by the petitioner on reference being made of the
matter to the Cottonpet Police Station for investigation under
Section 156(3) of the Cr.P.C. and also directs that the matter
be listed on 26-07-2022. Though the Cottonpet Police received
the certified copy of the order on 04.05.2022, the crime was
not registered. On 26-07-2022, when the matter was posted
before the Court, a reminder was also sent to the Police Station
for registration of the crime and reporting such registration.
Even then the crime was not registered. The crime comes to be
registered only on 18-10-2022 after about 5½ months of
reference being made by the learned Magistrate directing
investigation to be conducted and a report to be submitted
under Section 156(3) of the Cr.P.C. It is in that light the
petitioner has knocked the doors of this Court seeking transfer
of investigation to the hands of any other police officer or
agency owing to the fact that the Station House Officer of the
Police Station showing no interest in registering the crime even.
WP No. 20269 of 2022
5. The petitioner in-person would seek to contend that
the private complaint that is registered was for cognizable
offences. Noticing the fact that they were all cognizable
offences, the learned Magistrate had directed conduct of
investigation to Cottonpet Police Station. Despite a reminder
on 26-07-2022, no crime is registered. He would allege that
the Station House Officer is hand in glove with the 1st
respondent/accused and therefore, seeks transfer of
investigation to any other Police Station.
6. On the other hand, the learned Additional Government
Advocate would seek to defend the action of registration of
crime after 5½ months on the ground that the reference
though was received on 04-05-2022, the file was misplaced
from the table of the Inspector and the moment the file was
traced, it was immediately registered. He would submit that
the Inspector of Police who had mishandled the file had been
placed under suspension and the present incumbent has filed
an affidavit that such instances would not be repeated.
WP No. 20269 of 2022
7. I have given my anxious consideration to the
submissions made by the party-in-person and the learned
Additional Government Advocate and perused the material on
record.
8. The afore-narrated facts are not in dispute and the
events need to be reiterated. The petitioner alleges that on
26.03.2021, the supporters of the 1st respondent forcibly
entered the house of the petitioner, broke open the lock and
committed theft of several valuables in the house. Pursuant
thereto, the petitioner seeks to register a complaint before the
Police on 27.03.2021. But, the Police did not entertain the
complaint notwithstanding the fact that it was alleging
cognizable offences. Later, the petitioner approaches the
Commissioner of Police by registering a complaint against the
1st respondent on 17.08.2021. After much persistence, what
the petitioner receives is an endorsement dated 12-12-2021,
stating that the complaint is closed holding that it is a personal
matter.
WP No. 20269 of 2022
9. It is on the aforesaid endorsement, the petitioner
seeks to register a private complaint under Section 200 of the
Cr.P.C. on 28-04-2022, for offences punishable under Sections
380, 503, 410, 414, 425, 442, 451 read with 34 of the IPC
which are all cognizable. The learned Magistrate on 29-04-2022
passes the following order:
"Perused the complaint and documents
produced by the complainant. On perusal of the
same it shows that there are allegations about
cognizable offences. Hence, I feel it is fit case to
refer the matter to jurisdictional police for
investigation. In view of this I proceed to pass the
following:
ORDER
Office to register the complaint in PCR and
refer the matter to Cottonpet Police for
investigation u/s 156(3) of Cr.P.C. and submit
report.
Await report by 26-07-2022."
(Emphasis added)
The shara, in the said order sheet indicates that the Court
Police Constable to whom the investigation had been directed,
receives the order copy on 04-05-2022. The learned
Magistrate had directed investigation to be conducted on the
complaint of the petitioner under Section 156(3) of the Cr.P.C.,
which is received by the Cottonpet Police on 04-05-2022. These
WP No. 20269 of 2022
dates are a matter of record. Law requires that, when the
Magistrate directs investigation to be conducted under Section
156(3) of the Cr.P.C., the investigation has to commence
immediately and for the investigation to commence, a FIR
should be registered without any loss of time.
10. The learned Magistrate had directed the matter to be
re-listed on 26-07-2022 awaiting the report of investigation.
Noticing that the FIR itself not being registered, one more
opportunity was given on 26-07-2022, while directing the
matter to be listed on 30-8-2022. Even then, the crime was not
registered. It is a matter of record that the crime comes to be
registered on 18-10-2022, for an order of reference, under 156
(3), dated 29.04.2022. The crime is registered 5 months and
21 days after the direction to register and investigate.
Therefore, there has been blatant callousness on the part of the
Station House Officer of Cottonpet Police Station, who has
displayed lackadaisical attitude towards registration of the
crime.
WP No. 20269 of 2022
11. The respondent-State has sought to justify the action
of blatantly belated registration of FIR by filing an affidavit. It
is germane to notice the affidavit. The affidavit filed by the 1st
respondent - Inspector of Police, Cottonpet Police Station,
reads as follows:
"AFFIDAVIT
I, Balaraj G., S/o Sri Gurusiddappa, aged about
39 years, working as Inspector of Police, Cottonpet
Police Station, Bengaluru-1, do hereby solemnly
affirm and state on oath as follows:-
1. I respectfully submit that I am working as
Inspector of Police, Cottonpet Police Station,
Bengaluru since 29-11-2022. Before that one Sri
K.Y.Praveen, my predecessor was the Inspector of
Police. I know the facts of the case; hence, I am
swearing to this affidavit.
2. I state that it is true that the learned
st
31 Additional Chief Metropolitan Magistrate,
Bengaluru passed an order to register the FIR
before the Cottonpet Police under Section
156(3) of Cr.P.C. on 29-04-2022. It is also true
that on 4-05-2022, the Court P.C. collected the
copy of the intimation/Private Complaint lodged
by the learned Magistrate before the Hon'ble
Court. The Court P.C. brought the order of the
Court/intimation to the Police Station and kept
the same on the table of the Inspector of Police.
During that period Sri Praveen K.Y. was working
as Inspector of Police, who is presently under
suspension. Though I have sent a letter to him
seeking clarification of delay, there is no
response. Upon enquiry with Lohit, HC 9792, he
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WP No. 20269 of 2022
informed that on 18-10-2022, the then Police
Inspector told him that while checking the file
he traced the orders of the Hon'ble Court and
asked him to register FIR immediately. The then
Inspector of Police asked PSI - Kavyashree to
register the complaint and to investigate the
matter. Immediately, thereafter the FIR has
been registered and an investigation was
commenced by Kavyashree.
3. I submit that we have utmost respect and
regard for the orders passed by this Hon'ble Court.
We have never disrespected the order of this Hon'ble
Court. It is not a deliberate mistake. It is only due to
oversight as the documents got missed up with other
case papers. Hence, we lost sight of the said case.
The moment we traced the documents, on the same
day, without any insistence or reminder, we promptly
registered the FIR.
4. I submit that henceforth, we will be very
careful in dealing with the intimation/referral
documents received from the Hon'ble Court. We
will never commit such a mistake and we
apologize to this Hon'ble Court for the delay
caused due to misplacement of the documents.
Now, we are investigating the matter promptly
with no stone unturned to render justice to the
petitioner. After investigation, the Final report
was filed before the learned Magistrate on 7-01-
2023.
Wherefore, I most respectfully pray that this
Hon'ble Court may be pleased to accept the aforesaid
affidavit on record and pass suitable orders to meet
the ends of justice and equity."
(Emphasis added)
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WP No. 20269 of 2022
The affidavit of the State confirms that, on 04-05-2022 the
Court Police Constable collected the order of the learned
Magistrate, brought it to the notice to the Station House Officer
and kept the intimation on the table of the Inspector of Police.
During that period, one Praveen K.Y., was working as the
Inspector of Police.
12. The defense is that, upon enquiry, it was noticed that
the order of the learned Magistrate had been misplaced and
while taking out some other file, the present officer i.e., the
Inspector holding the post of PSI found the order of reference
and registered the crime immediately. Therefore, it is an
admission that though the order of reference of the learned
Magistrate was received on 04-05-2022, the crime is registered
only on 18-10-2022. The defense further states that, it is only
due to oversight and the intimation getting mixed up with other
papers, the Station House Officer had lost sight of the case and
also undertakes that such mistakes will never happen again.
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WP No. 20269 of 2022
13. Registration of an FIR on a cognizable offence, more
particularly, on a reference being made by the learned
Magistrate under Section 156(3) of the Cr.P.C. is imperative
and of paramount importance, as the investigation has to
commence on such registration. Reference being made to the
judgment of the Apex Court in the case of MOHD. YOUSUF
VS. AFAQ JAHAN AND ANOTHER reported in (2006)1 SCC
627, would be apposite, wherein the Apex Court holds as
follows:
".... .... ....
11. The clear position therefore is that any
Judicial Magistrate, before taking cognizance of the
offence, can order investigation under Section 156(3)
of the Code. If he does so, he is not to examine the
complainant on oath because he was not taking
cognizance of any offence therein. For the purpose of
enabling the police to start investigation it is open to
the Magistrate to direct the police to register an FIR.
There is nothing illegal in doing so. After all
registration of an FIR involves only the process of
entering the substance of the information relating to
the commission of the cognizable offence in a book
kept by the officer in charge of the police station as
indicated in Section 154 of the Code. Even if a
Magistrate does not say in so many words while
directing investigation under Section 156(3) of the
Code that an FIR should be registered, it is the duty
of the officer in charge of the police station to
register the FIR regarding the cognizable offence
disclosed by the complainant because that police
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WP No. 20269 of 2022
officer could take further steps contemplated in
Chapter XII of the Code only thereafter."
The Apex Court clearly holds that, when a Magistrate directs
investigation under Section 156(3) of the Cr.P.C., FIR should be
registered. It is the duty of the officer in-charge of the police
station to register FIR regarding the cognizable offences
disclosed in the complaint. It should be registered even if the
Magistrate does not say in so many words, while directing
investigation.
14. The aforesaid action of registration of crime with an
inordinate delay would disclose culpable negligence on the part
of the Law Enforcement Agency in compliance with the lawful
order passed by the learned Magistrate under Section 156(3) of
the Cr.P.C. for registration of FIR and for investigation into the
cognizable offences. Lawful orders passed by the judicial
authority are required to be scrupulously enforced by the
police. Failure to do so, constitutes a constitutional tort arising
out of breach of a fundamental right of access to justice for
victims of crime. Such breach amounts to serious misconduct
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WP No. 20269 of 2022
and gross dereliction of duty justifying imposition of major
penalty. Such gross dereliction of official duty by the Law
Enforcement Agencies cannot be countenanced. The failure to
register the crime by the then Officer in-charge of the
Cottonpet Police Station cannot be brushed aside, as a mere
loss of file and tracing of it. The said officer cannot and should
not be left off the hook, more so, in the light of the affidavit
admitting such dereliction of duty filed by the State (supra).
15. The learned Additional Government Advocate would
submit that the Officer is now placed under suspension pending
conduct of a departmental inquiry. Therefore, the Director
General and Inspector General of Police shall hold a
departmental inquiry, which shall be conducted and completed
within a time frame, accountability shall be fixed upon the said
officer after following due process of law and affording all
opportunity to the said officer.
16. The apprehension of the petitioner that there would
not be a fair investigation since the crime itself is not registered
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WP No. 20269 of 2022
is alleviated by the fact that the Investigating Officer one
Balaraj G., who has filed the afore-quoted affidavit has also
brought to the notice of the Court that final report has already
been filed on the investigation on 07-01-2023. The
apprehension and grievance of the petitioner is thus mitigated.
17. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition stands disposed.
(ii) The Director General and Inspector General of
Police shall hold a departmental enquiry against the
said officer in-charge of the police station, who is
identified as one Praveen K.Y.
(iii) The departmental inquiry against him shall be
concluded within three months from the date of
receipt of a copy of this order and accountability
shall be fixed in such departmental inquiry after
following due process of law.
(iv) The compliance report of action taken in the
departmental inquiry shall be filed before the
Registry of this Court.
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WP No. 20269 of 2022
The Registry is directed to communicate this order to the
Principal Secretary, Department of Home Affairs, Government
of Karnataka and the Director General and Inspector General of
Police.
Sd/-
JUDGE
JY
