Tripura High Court

Mr. P Majumder vs Mr. D Bhattacharjee on 16 February, 2022

                          HIGH COURT OF TRIPURA
                                AGARTALA

                            WP(C) No. 687 of 2021
Milan Chandra Kar
      Versus
State of Tripura & 3 ors.

For Petitioner(s)                 : Mr. P Majumder, Adv.
                                    Ms. S Debbarma, Adv.
For Respondent(s)                 : Mr. D Bhattacharjee, GA.

Ms. S Deb, Adv.

Fit for reporting                 : YES

                       HON'BLE MR. JUSTICE S. TALAPATRA
                                    Order

16.02.2022

Being aggrieved by the action of the police, the petitioner has

filed this petition under Article 226 of Constitution of India urging direction on

the respondents to keep complaints of the petitioner dated 13.09.2020

(Annexure-1 to the writ petition) and dated 20.08.2021 (Annexure-6 to the

writ petition) filed before Officer in Charge of RK Pur police station

(reproduced with accuracy). In short, non registration of the FIR on the basis

of the said complaint has aggrieved the petitioner.

According to the petitioner, the said complaint clearly discloses

cognizable offence and despite that position, no case was registered against

the accused persons. The police, without registering a case for commission of

the offence as disclosed by the said complaint (Annexure-1 to the writ

petition), entered the substance of the said complaint in the station diary vide

RK Pur Police Station GDE No.22 dated 20.08.2021 and thereafter, the police

submitted a prosecution report (PR, for short) vide No. RK Pur PS PR No.197

dated 03/09/2021 under Section 107 of the Cr.P.C. According to the

petitioner, the said act is not only unfair on the part of the police but an act in

defiance of the mandate of the statute.

In the complaint (Annexure-1 to the writ petition), it has been

disclosed that when the petitioner created the tenancy for rent, the accused

person, (not impleaded) raided that place with a lathi in his hand. The accused

person demanded a sum of Rs.50,000/- from the complainant and threatened

that the complainant shall not construct any hut over the land pertaining to

Plot No.752/3666 recorded in Khatian No.2044 of Mouja Rajarbag measuring

.08 acre.

The complainant has the possession over the Plot No. 752/4833

and 753/4834 measuring .013 acre adjoining the earlier plot and alongside the

national highway No.8. The said occurrence, as referred before, took place on

01.09.2020 on the land measuring .03 acre. It has been also complained that

the accused person threatened the complainant that he would kill him. As the

police did not register the case, the complainant had addressed a letter dated

14.12.2020 to the Superintendent of Police, Gomati district, Udaipur

complaining of non-registration of the case, but no positive action yielded from

the authority. Even subsequent thereto i.e. 30.08.2020, the petitioner made

request to the Superintendent of Police, Gomati district, Udaipur to take action

based on the said complaint but that was not heeded to. Even he had knocked

the door of various other authorities seeking justice.

In response to this allegation, the respondents filed a combined

reply and stated that from the complaint no cognizable offence did reveal and

in their assessment there was apprehension of breach of peace from the

dispute regarding the land and as such, the police recorded the substance of

the complaint in the station diary and submitted the prosecution report to the

Executive Magistrate for taking appropriate action, as provided by law.

The prosecution report has been enclosed. It appears there from

that, for maintaining and peace and tranquility in the area, the said

prosecution report was submitted against three persons, namely, (1) Ikbal

Hossain, (2) Biswajit Debnath and (3) Smt. Niyati Bishnu Chowdhury (Kar).

There no prosecution report against the person named in the complaint.

Thereafter, on 15.02.2022, an additional affidavit has been filed

by the respondents No. 1-4 in pursuance to the order of this court passed on

07.02.2022. With that affidavit, the respondents have submitted a copy of the

First Information Report, under Section 1544, of the CrPC being RK Pur PS

case No.0017/2012. It is apparent that on the basis of the said complaint the

police has now registered a specific case for investigation under Sections 448,

385 and 508 of the IPC. But what occasioned that change in approach, has not

been explained by them. The said FIR has been registered on 13.02.2022

whereas the complaint was filed by the petitioner on 13.09.2020, almost after

one and half years. This is really shocking but the police has exhibited a brave

face by stating in their additional affidavit that the petitioner ought to have

moved the Magistrate for lodging complaint if he was aggrieved by the police

action. It is highly unacceptable.

The police has produced the records for inspection of this court

on 07.02.2020. In that record the copy of the FIR as referred before is not

available. However, such copy as stated before, has been made available with

the additional affidavit filed by the respondents No.1-4.

This court does not have any hesitation to hold that the police did

act completely in derogation of the statutory mandate in respect of the

registration of case when a cognizable offence is disclosed. For this purpose,

the provisions of Sections 154 of the CrPC can be referred to. It clearly lays

down that every information relating to the commission of a cognizable

offence, if given orally to an officer in charge of a police station, shall be

reduced to writing by him or under his direction, and be read over to the

informant; and every such information, whether given in writing or reduced to

writing as aforesaid, shall be signed by the person giving it, and the substance

thereof shall be entered in a book to be kept by such officer in such form as

the State Government may prescribe in this behalf. A copy of such information

as recorded under sub- section (1) of Section 154 of the CrPC shall be given

forthwith, free of cost, to the informant. Sub-Section (3) of Section 154 of the

CrPC is paramount in this context. It provides that any person aggrieved by a

refusal on the part of an officer in charge of a police station to record the

information referred to in subsection (1) may 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, in the

manner provided by the Code, and such officer shall have all the powers of an

officer in charge of the police station in relation to that offence.

In the case in hand, despite the information in respect of non-

registration of the case was communicated to the Superintendent of Police,

Gomati District, he did not take any action as required by Section 154(3) of

the CrPC and that is disturbing. The mechanism in the statute as put in under

Section 154 CrPC is for check and balance. The Superintendent of Police of the

district is obligated by Section 154(3) CrPC to supervise the wrong doing of

the officer posted in the police station, so far, the complaint in respect of

cognizable offence concerned.

In this regard, it may be mentioned that the Police Regulation of

Bengal (PRB, for short) has been adopted by the State of Tripura as the

guidelines in respect of investigation and other police action. PRB 243 deals

with recording of information under Section 154 of the CrPC. It provides, inter

alia as follows:

(a) The first information of cognizable crime mentioned in section 154, Code of Criminal Procedure, shall, be drawn up by the officer in charge of the police- station in B. P. Form No. 27 in accordance with the instructions printed with it.

(b) The first information report shall be written by the officer taking the information in his own handwriting and shall be signed and sealed by him.

(c) The information of the commission of a cognizable crime that shall first reach the police, whether oral or written, shall be treated as the first information. It may be given by) a person acquainted with the facts directly or on hearsay, but in either case it constitutes the first information required by law, upon which the enquiry under section 157, Code of Criminal Procedure, shall be taken up. When hearsay information of a crime is given, the station officer shall not wait to record, as the first information, the statement of the actual complainant or an eye -witness.

It has been further provided that-

(d) A vague rumour shall be distinguished from a hearsay report. It shall not be reduced to writing or signed by the informant, but entered in the general diary, and should it, on subsequent information prove well- founded, such subsequent information shall constitute the first information.

(e) A telegram is not a writing given to the police signed by the person making the statement and, therefore, does not comply with section 154, Code of Criminal Procedure. If, however, in the opinion of an officer receiving a telegram reporting the occurrence of a cognizable offence, the circumstances justify action being taken, he should himself lodge a first information on the basis of the telegram. If he does not take such action, he should make an entry in the general diary.

In the case of a telephone message reporting such an occurrence, the informant should be asked to come to the police-station to lodge the information, and an entry of the message; should be made in the general diary. If it is considered necessary to start investigation on the basis of the message: and the informant remains anonymous

or cannot be found, the officer receiving the message must himself lodge the information on the basis thereof.

(I) Police officers shall not defer drawing up the information report until they have tested the truth of the complaint. They shall not await the result of medical examination before recording a first information, when complaint is made of grievous hurt or other cognizable crime.

(g) A constable left in charge of a station may accept a written report of a cognizable offence. He shall get the, report signed by the person giving it, enter an abstract of it in the general diary and report the fact to t he officer in charge of the station. If the report of a cognizable offence is given, to such constable orally, he shall similarly enter the substance of it in the general diary and send the complainant or in - formant to the officer in charge of the station with a note of the case. If the report relates to the occurrence of heinous crime, he shall send immediate information to the Circle Inspector; and if the facts of the case, as may occur in dacoity, murder, etc., require the immediate apprehension of the accused, he shall take all possible steps to effect arrest.

(h) First information reports, once recorded, shall on no account be cancelled by station officers.

Thus, it is apparent that those provisions, particularly of PRB 243

(a) to (f) make it abundantly clear that the police officer in charge of a police

station is not to defer the lodging of the FIR on the ground that the veracity of

the complaint has to be inquired into. He is not to wait for the medical report

but to lodge the FIR as soon as he receives information of commission of

cognizable offence.

More unequivocality, it has been provided by PRB 244 (a) as

follows:

"244. (a) A first information shall be recorded in respect of every cognizable complaint preferred before the police whether prima facie, false or true, whether serious or petty whether relative to an offence punishable under the Indian Penal Code or any special or local law. This does not apply to cases under section 34 of the Police Act, 1861. or to offences against Municipal, Railway and Telegraph by -laws for which see regulation 254."

[Emphasis added]

Thus, it again transpires from that provision that whenever an

information relating to commission of a cognizable offence is given to a police

officer by a constable whether prima facie false or true that should not have

any impact on registration of FIR.

This Court, in Birajit Sinha Vs. State of Tripura [judgment

dated 08.05.2015 delivered in Crl. Petn. 71/2014], had occasion to dwell upon

similar case and had observed inter alia as follows:

"[4] In Lalita Kumari vs. Government of Uttar Pradesh and others, reported in (2014) 2 SCC 1, the apex court has categorically held that:

73. The legislature has consciously used the expression "information" in Section 154(1) of the Code as against the expression used in Section 41(1)(a) and (g) where the expression used for arresting a person without warrant is "reasonable complaint" or "credible information". The expression under Section 154(1) of the Code is not qualified by the prefix "reasonable" or "credible". The non qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code is for the reason that the police officer should not refuse to record any information relating to the commission of a cognizable offence on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness or credibility of the said information is not a condition precedent for the registration of a case.

74. The above view has been expressed by this Court in State of Haryana vs. Bhajan Lal: 1992 Supp (1) SCC 335 which is as under:

32...in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) [by errata : who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or'

The new Sections 41 (1)(a), (b) and (ba) are as follows:

41. (1) (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received; (ba) against whom credible information has been received that he has committed a cognizable offence.] or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-

qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word.

75. In Parkash Singh Badal vs. State of Punjab: (2007) 1 SCC 1, this Court held as under:

65. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable offence" [as defined under Section 2(c) of the Code] if given orally (in which case it is to be reduced into writing) or in writing to "an officer in charge of a police station" [within the meaning of Code is not qualified by the prefix "reasonable" or "credible". The non qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code is for the reason that the police officer should not refuse to record any information relating to the commission of a cognizable offence on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness or credibility of the said information is not a condition precedent for the registration of a case.

Section 2(o) of the Code] and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "first information report" and which act of entering the information in the said form is known as registration of a crime or a case.

66. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1)of the Code, the police officer concerned cannot embark upon an inquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof. In case an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person

aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-

section (3) of Section 154 of the Code.

67. It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Sections 41(1)(a) or (g) of the Code wherein the expressions "reasonable complaint" and "credible information" are used. Evidently, the non qualification of the word "information" in Section 154 (1) unlike in Sections 41(1) (a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, "reasonableness" or "credibility" of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that "every complaint or information" preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that "every complaint" preferred to an officer in charge of a police station shall be reduced in writing. The word "complaint" which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word "information" was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.

68. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information."

[Emphasis added]

It is apparent therefore that the apex court has clearly laid down

that if any information disclosing a cognizable offence is placed before an

officer in charge of a police station satisfying the requirements of Section

154(1) of the Code, the said police officer has no other option except to enter

the substance thereof in the prescribed form, that is to say, to register a case

on the basis of such information.

In Lalita Kumari (supra) the apex court has observed 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 carry out an inquiry for the

limited purpose of ascertaining as to whether a cognizable offence has been

committed. But, if the information is given clearly mentioning 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. These are the issues those

will be verified during the investigation of the FIR. 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. If, after investigation, the

information given is found to be false, there is always an option to prosecute

the complainant for filing a false FIR.

In a case recently, the apex court reiterated the law as

expounded in Lalita Kumari (supra).

In Central Bureau of Investigation Vs. Thommandru

Hannah Vijayalakshmi reported in AIR 2021 SC 5041 the apex court has

observed that the decision of the Constitution Bench in Lalita Kumari (supra)

holds that if the information received discloses the commission of a cognizable

offence at the outset, no Preliminary Enquiry would be required. It also

clarified that the scope of a Preliminary Enquiry is not to check the veracity of

the information received, but only to scrutinize whether it discloses the

commission of a cognizable offence. Similarly, para 9.1 of the CBI Manual

notes that a Preliminary Enquiry is required only if the information (whether

verified or unverified) does not disclose the commission of a cognizable

offence. Even when a Preliminary Enquiry is initiated, it has to stop as soon as

the officer ascertains that enough material has been collected which discloses

the commission of a cognizable offence. A similar conclusion has been reached

by a two Judge Bench in Managipet (supra) as well. Hence, the proposition

that a Preliminary Enquiry is mandatory is plainly contrary to law, for it is not

only contrary to the decision of the Constitution Bench in Lalita

Kumari (supra) but would also tear apart the framework created by the CBI

Manual.

Having clearly observed the provisions of law, as interpreted and

enunciated in Lalita Kumari (supra) by a constitution bench of the apex

court, there cannot be any amount of equivocality, confusion or greyness in

understanding the law as provided under Section 154 of the CrPC, but

unfortunately what we have observed is that the senior police officer was

completely unaware of these provisions. It only disturbs a constitutional court

which has been bestowed with the power to protect the right of the people for

getting justice as the justice is the soul of our constitution. If the law enforcing

authority, the police, behaves in wanton manner, the people in general who

are abiding the law would lose their faith in the rule of law and that will

portend the death knell of democracy one day. This court in such

circumstances cannot shut its eyes and has to do what is required to be done.

Having verified the material produced before this court by the

respondents, the following observations are being made:

1. The police officer who was in charge of the police station needs to be trained in respect of the law of the land, if he is unaware of that.

2. If the non-registration was the outcome of unawareness then no further action this court would suggest, but if there is a streak of deliberate attempt to thwart the process of justice, the superior authority must take note of the conduct of the police officer of the RK Pur PS who refused to register the FIR despite the disclosure of cognizable offence.

3. The Superintendent of Police, Gomati District is also liable to introspect about his role in this case. Nobody is allowed to lift the skin of the complaint to find out what is true and what is false at that stage. The mandate of the stature is very clear. It is without questioning when a cognizable offence has been disclosed, to register the FIR forthwith and to take up the case for investigation.

4. The Director General of Police is requested to hold proper awareness programmes about the development of law and about the basic provisions of the CrPC and the PRB.

We have been persuaded to give these observations as this is not

a solitary case that the court is confronted with, but a barrage of cases of this

nature are coming to this court every now and then.

Since, even though belatedly, the police has registered the first

information report. The fallout for delay in the registration of case on the

complaint that may bring about, cannot be met by the complainant, the

petitioner in the case in hand. The said delay cannot be used as the leverage

against the complainant. The police is hereunder directed to complete the

investigation within a period of 6(six) months from today as the nature of

investigation is confined to a narrow area.

Having observed thus, this petition stands disposed of.

No order as to costs.