ORDER
K.A. Mohamed Shafi, J.
1. This M.C. is filed by the petitioner to direct the 2nd respondent, Director General of Police to take necessary action and to direct his subordinates to take all action contemplated under law against the Superintendent of Police, Palakkad for his criminal acts committed against the petitioner.
2. The petitioner is a Police Constable with General No. 4317 in KAP-II Battalion now under suspension. According to the petitioner, on 27-1-2000 after his duty at Puthoor Matha Amrithananda Mayi Madam while he was proceeding to meet his uncle near the civil station in a bus some unfortunate incident happened. It is alleged that the petitioner has molested a women travelling in the bus, though according to him, he accidentally happened to touch the body of that woman. According to the petitioner, she got wild, raised hue and cry and tried to assault the petitioner and she got out of the bus and raised alarm. The constable who was on duty there, caught hold of the petitioner and took him to the Police Station. The petitioner has alleged that while he was in the Police Station and being interrogated by the S.I. of Police, the Superintendent of Police, Palakkad came to the Station and without caring to understand what was going on, began to beat the petitioner shouting at him and when the Superintendent of Police ascertained the caste of the petitioner, he insulted the petitioner by calling his caste name and abusing him in public view and beat him with a lathi taken from the Station and pushed him against the wall whereby his head dashed against the wall. There after he was produced before the Judicial First Class Magistrate's Court-III, Palakkad and remanded to custody. While in custody in the sub jail he was sent to the hospital for treatment and while undergoing treatment in the hospital the S.I. of Police, Palakkad Town South Police Station recorded his statement on 28-1-2000, a copy of which is produced as Annexure-I along with this petition. It is contended by the petitioner that even though the S.I. of Police, Town Police Station who is the S.H.O. is bound to register a crime under Section 154 of the Cr.P.C. on receipt of the information of a cognizable offence and proceed further, no crime is registered by him on the basis of the F.I. Statement given by the petitioner. It is further contended that though the petitioner made representations before the superior authorities, no action is taken in the matter. Therefore, he has filed this M.C. before this Court under Section 482 of the Cr. P.C. for necessary directions.
3. The State Prosecutor who appeared for the respondents, submitted that the petitioner who is a Police Constable has molested a woman traveller in the bus in which he was travelling and when she raised hue and cry, he attempted to escape by stopping the bus and a Police Constable chased him and apprehended him and brought before the Police Station. A case has been registered against the petitioner for the offences committed by him and he was arrested and produced before the concerned Magistrate who remanded him to custody. He further submitted that the petitioner who had no complaint of any torture or assault or even any misbehaviour by any of the police officials including the Superintendent of Police when he was produced before the Magistrate, by way of an after thought after he was remanded to custody by the Magistrate, made an absolutely false, frivolous and scandalous complaint against his very high ranking superior officer. He has also submitted that after the S.I. of Police recorded the F.I. Statement given by the petitioner, the D.I.G. is conducting an enquiry in the matter and on completing the enquiry if he found necessary to register the crime on the basis of the F.I. Statement crime will be registered and investigation will be conducted on the basis of the F.I. Statement given by the petitioner.
4. The question whether the petitioner is involved in any criminal case for molesting a woman and he was arrested and produced before the concerned Magistrate and remanded to custody, are facts not germane for consideration in the above M.C. The only question to be considered is whether the S.I. of Police, Palakkad Town Police Station who recorded Annexure-I F.I. Statement from the petitioner on 28-1-2000 is justified in not registering the case on the basis of that F.I. Statement as mandated under Section 154 of the Cr.P.C. and the stand taken by the respondents that the crime will be registered only if found necessary after the alleged enquiry is completed by the D.I.G. of Police regarding the F.I. Statement given by the petitioner, is sustainable under law.
5. Section 154 of the Cr. P.C. reads as follows :
S. 154. Information in cognizable cases -
(1) 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.
(2) A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) 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 Sub-section (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 this Code and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
6. It is clear from Sub-section (1) of Section 154 that when the officer in charge of the police station receives information relating to commission of a cognizable offence given in writing or reduced to writing is bound to register the FIR S. 154 stipulates that if the S.H.O. failed to lodge the FIR, the person aggrieved can make a complaint in writing to the Superintendent of Police concerned and the S.P. if satisfied that the information disclosed the commission of cognizable offence, shall either investigate himself or direct the investigation to be done by an officer subordinate to him. In this case the accused being the Superintendent of Police himself, filing of complaint before the S. P. with regard to the refusal of the S.H.O. to register the crime does not arise. Though the petitioner has contended that his complaints before the superior authorities like the Chief Minister of Kerala, the Prime Minister of India, Home Minister of India and the 2nd respondent-D.G.P. were of no avail, it need not be considered at this juncture.
7. The State Prosecutor submitted that it is not mandatory that the S.H.O. who receives information regarding some cognizable offence should lodge the FIR and an enquiry can be conducted to ascertain the genuineness or credibility with regard to the allegations made in the information disclosing cognizable offence by him or his superior authority before registering the case. He submitted that neither Section 154 nor any other provision of the Cr.P.C. prohibits the S.H.O. from making an enquiry with regard to the information received by him regarding the commission of a cognizable offence. Therefore, he submitted that the S.H.O. and the other police authorities are perfectly justified in this case in not registering the FIR immediately on recording the F.I. Statement given by the petitioner and conducting an enquiry by a very high ranking police officer regarding the matter without lodging the FIR. He submitted that in this case absolutely false, frivolous, vexatious and scandalous allegations are made by a police constable against his very high ranking superior officer and therefore, it necessitated an enquiry into the allegations made by him in order to ascertain whether FIR is to be lodged or not on the basis of those allegations and after completion of the enquiry if it is found necessary to lodge the FIR certainly FIR will be registered and the same will be dealt with in accordance with law.
8. In order to buttress this argument and justify the stand taken by the police, the learned State Prosecutor has relied upon certain decisions of the Supreme Court. Reliance is placed by him on the decision in State of Uttar Pradesh v. Bhagwant Kishore Joshi AIR 1964 SC 221 : (1964 (1) Cri LJ 140). That was an appeal filed with special leave before the Supreme Court against the judgment of the Allahabad High Court setting aside the judgment of the Special Judge convicting and sentencing the accused for the offence punishable under Section 5(2) of the Prevention of Corruption Act. One of the questions canvassed before the Supreme Court was whether the enquiry made by the S.I. of Police, Special Police Establishment before he obtained the permission of the Magistrate was investigation within the meaning of the provisions of the Code of Criminal Procedure. In that judgment the Supreme Court has observed as follows (para 10 (1964) 1 Cri LJ 140) :
Notwithstanding the clear and express provisions of the statute, in the present case the Sub Inspector made the investigation of the offence alleged to have been committed by a public servant without obtaining the order of a Magistrate First Class. We hope and trust that investigations under the Act will be conducted in strict compliance with the provisions of the Act.
9. In that case the Supreme Court has found that though the police officer conducted some investigation without obtaining sanction from the Court, realised his duty and hastened to rectify the defect. It is also found that no prejudice was caused to the accused in the investigation disregarding the provisions of Section 5 of the Prevention of Corruption Act and the evidence and the trial was fair and the evidence was convincing and also the earlier defect was rectified by having practically a de novo investigation in strict compliance with the provisions of the Code of Criminal Procedure. Therefore, absolutely no prejudice was caused to the accused by the illegality committed by the police in the first stage of the investigation.
10. The State Prosecutor made much reliance upon the following observations made in the very same judgment by Justice Mudholkar :
But the main object of investigation being to bring home the offence to the offender the essential part of the duties of an Investigating Officer in this connection is, apart from arresting the offender, to collect all material necessary for establishing the accusation against the offender. Merely making some preliminary enquiries upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it.
The above observations made by the Supreme Court have absolutely no application to the facts of this case, though the observations pertain to any vague information from anonymous source or source of doubtful reliability. In this case the F.I. Statement itself is given by the petitioner, the alleged victim and the offence is alleged to have committed from the Police Station. Therefore, the police cannot take shelter upon the above observations of the Supreme Court in this case.
11. The State Prosecutor has relied upon the decision in S.N. Sharma v. Bipen Kumar AIR 1970 SC 786 : (1970 Cri LJ 764) and argued that the power of the police to investigate is independent of any control by the Magistrate and the Court cannot direct the police to register case and investigate. In that decision the Supreme Court interpreted the provisions of Section 159 of Cr.P.C. and observed as follows :
The use of this expression makes it clear that Section 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases were the police decide not to investigate the case under the proviso to Section 157(1), and it is in those cases that, if he thinks fit, he can choose the second alternative. If the expression 'if he thinks fit' had not been used, it might have been argued that this section was intended to give in wide terms the power to the Magistrate to adopt any of the two courses of either directing an investigation or of proceeding himself or deputing any Magistrate subordinate to him to proceed to hold a preliminary enquiry as the circumstances of the case may require. Without the use of the expression if he thinks fit the second alternative could have been held to be independent of the first, but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applicable.
5. It may also be further noticed that, even in Sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190, is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate.
The above decision of the Supreme Court has absolutely no bearing to the facts of this case is which the duty of the S.H.O. to lodge an FIR on receipt of information regarding commission of a cognizable offence is under consideration.
12. In support of the stand taken by the police in this case the State Prosecutor relied upon the decision in P. Sirajuddin v. State of Madras AIR 1971 SC 520: (1971 Cri LJ 523) wherein the Supreme Court has observed as follows (para 17) :
Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.
That case has arisen in respect of a corruption case instituted against a Chief Engineer and others and the Supreme Court justified a preliminary enquiry for the purpose of finding out whether criminal proceedings are to be resorted to against the accused therein. The Supreme Court has further observed as follows (para 17) :
When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.
13. It has to be noted that the above decision and the other decisions referred to above relied upon by the State Prosecutor in this case are in respect of offences alleged under the prevention of Corruption Act which by the very nature of the offence imputed against a public servant a preliminary enquiry as to whether there are good and substantial reasons for lodging the complaint or the charge-sheet against a person and he should not be put to the harassment of a criminal trial on absolutely unsustainable or false allegations. Therefore, those decisions have no application to the facts of this case wherein offences punishable under the IPC are alleged by the petitioner against the accused mentioned by him.
14. In the decision in State of Haryana v. Bhajan Lal AIR 1992 SC 604 : (1992 Cri LJ 527) the Supreme Court has observed as follows :
30. 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 of the Code, the concerned police officer cannot embark upon an enquiry 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....
31. Be it noted that in Section 154 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) 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 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. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV 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 X of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced into 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 1955 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act II of 1974). 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 discJose a cognizable offence.
32. 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.
The above observations made by the Supreme Court is a complete answer to the contentions raised by the respondents that they are entitled to enquire into as to whether an FIR should be registered on receipt of information disclosing commission of a cognizable offence and they need register the FIR only on satisfying that there is need to register the case. In view of the above judgment of the two Judges Bench of the Supreme Court the respondents cannot make any reliance upon the observations made by the two Judges Benches of the Supreme Court in the earlier cases relied upon by them, referred to above either condoning the lapses committed by the police or ratifying the same, though in contravention of the mandatory provisions of the Code since no prejudice was caused to the accused by those illegal acts of the police.
15. In the decision in State of A.P. v. Punati Ramulu AIR 1993 SC 2644 : (1993 Cri LJ 3684) the Supreme Court has observed as follows (para 4) :
On reaching the police station at Narasaraopet he was informed by the constable on duty that the Circle Inspector, PW 22, had already received information about the occurrence and had left for the village. The police constable at the police station refused to record the complaint presented by PW. 1 on the ground that the said police station had no territorial jurisdiction over the place of crime. It was certainly a dereliction of duty on the part of the constable because any lack of territorial jurisdiction could not have prevented the constable from recording information about the cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed.
The Supreme Court has further observed as follows (para 5) :
Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clauses.
Though it was a case of murder and though the Sessions Court convicted and sentenced the accused Nos. 1 to 3 and 6 to 8, the High Court reversed the judgment of the trial Court and dismissed the appeal preferred by the State against the acquittal of the other accused by the trial Court. In the appeals preferred the Supreme Court made the above observations while confirming the judgment passed by the High Court.
16. In the decision in Joseph Thomas v. Sabu George (1988) 1 Ker LT 126 a Division Bench of this Court has observed as follows
In this case, Ext. P5 complaint has been filed by the petitioner regarding the commission of certain cognizable offence. It is the duty of the police to record the complaint and to register the crime. That duty cannot be waived or avoided. In the above view of the matter we do not see anything wrong in the direction given by the learned single Judge in directing the police authorities to register Ext. P5 complaint.
In that writ Appeal the order passed by a single Judge of this Court in the O.P. directing the police to register the complaint filed by the petitioner in the O.P. under Section 154 of the Cr.P.C. and investigate the crime was challenged before the Division Bench. Considering the provisions of Section 154 of the Cr.P.C. the Division Bench has observed as above.
17. In the decision in Velayudhan v. State of Kerala (1998) 1 Ker LT 364 : (1998 Cri LJ 1187) a single Judge of this Court has observed as follows :
6. I am therefore satisfied that when an information relating to the commission of a cognizable offence is given to an officer, he is bound to act in terms of Section 154(1) and (2) of the Code and he has no discretion in the matter of complying with the requirements of Section 154(1) and (2) of the Code. It is therefore clear that in the present case the first respondent was clearly in error in not receiving the complaint filed by the petitioner and in not entering the substance of it in the book kept for that purpose before taking a decision either to investigate or not to investigate the crime.
The grievance of the petitioner in that O.P. was that the S.I. of Police, the 1st respondent therein did not register the FIR though he filed a complaint disclosing the commission of a cognizable offence before him and sent a complaint to the Superintendent of Police, subsequently. In that case this Court directed the 3rd respondent therein to look into the complaint of the petitioner that no proper steps are taken on the information lodged by him and take whatever steps that he may deem necessary in that regard. In that judgment this Court has directed the authorities regarding the compliance of Section 154(1) and (2) of the Cr.P.C. as follows :
Since I find that this is not an isolated instance of a grievance that Section 154 of the Code is not being complied with and a number of cases come up before this Court complaining that information given is not taken on file and no investigation is conducted or no proper investigation is conducted, I think it appropriate to direct the fourth respondent and also the Director General of Police, Trivandrum to issue an appropriate circular compelling the offenders concerned to strictly adhere to the procedure prescribed by Section 154(1) and (2) of the Code, as and when they receive information coming within the scope of Section 154(1) of the Code.
18. In spite of the clear mandate of Section 154(1) and the judgment of the Supreme Court and this Court referred to above, that on getting information regarding commission of a cognizable offence, the officer in charge of the police station is bound to register the crime and he cannot embark upon an enquiry as to whether the information given by the informant is reliable or genuine before registering the case, the respondents not only did not register the FIR in this case but attempted to justify the wrong and unsustainable stand taken by them in spite of the fact that Annexure-I F. I. Statement was given by the petitioner before the S.I. of Police on 28-1-2000 disclosing cognizable offence. It has to be noted that in the decision in Velayudhan v. State of Kerala (1998) 1 Ker LT 364 :(1998 Cri LJ 1187) this Court had directed the 2nd respondent to issue an appropriate circular compelling the officers concerned to strictly adhere to the procedure prescribed under Section 154( 1) and (2) of the Cr.P.C. as and when they receive information coming within the scope of Section 154(1) of the Code. The respondents have pretended ignorance of the law on this aspect.
19. The scheme of Chapter XII of the Cr.P.C. establishes that though the police officer in charge of the police station is bound to register the case on receipt of the information as to commission of cognizable offence under Section 154(1) of the Cr.P.C, clause (b) of the proviso to Section 157(1) of the Cr.P.C. clothes him with the discretion to investigate the case. Clause (b) of the proviso to Section 157(1) stipulates that if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. But Sub-section (2) of Section 157 further stipulates that if the officer in charge of the police station finds that there is no sufficient ground for entering on any investigation, he is bound to state in his report his reasons for not fully complying with the requirements of Sub-section (1) of Section 157 and forthwith notify to the informant the fact that he will not investigate the case. Therefore, the S.I. of Police in this case without adhering to the mandatory provisions of Sections 154 and 157 of the Cr.P.C. has taken up a very strange position not to register the case and get an enquiry conducted by another police officer regarding the allegations made by the petitioner in the F.I. Statement, which cannot be justified but should be deprecated.
20. The contention of the respondents that the petitioner has made absolutely false, frivolous, vexatious and scandalous allegations against his very high ranking superior officer and therefore a preliminary enquiry to ascertain the correctness and genuineness of the allegations made by the petitioner is necessary before registering the crime in this case, as already noted above, is illegal against the mandatory provisions of Section 154 and the scheme in Chapter XII of the Cr.P.C. If in fact, after registering the crime the investigating officer found that the allegations made by the petitioner against his superior officer was groundless or baseless or amounted to harassment of his high ranking superior officer, the respondents are not left without any remedy against the petitioner for making such baseless, false, frivolous and scandalous allegations against his very high ranking superior officer, as the case may be, either departmentally or by invoking the various provisions of the penal and disciplinary laws available. But in this case the respondents without resorting to any such legal or appropriate measures available against the petitioner after registering the crime on the basis of Annexure-I F.I. Statement given by him on 28-1-2000, have deliberately refrained from discharging their statutory obligations in this case. Therefore, the failure or refusal of the S.H.O. to register the crime on the basis of Annexure-I F.I. Statement in this case is absolutely illegal. Hence I find that this is a most appropriate case wherein this Court should exercise its inherent jurisdiction under Section 482 of the Cr.P.C. and direct the respondents to register the crime on the basis of Annexure-I F.I, Statement given by the petitioner under Section 154(1) of the Cr.P.C. and to proceed with the same in accordance with law.
Hence this Crl.M.C. is allowed. The 3rd respondent is directed to register the case on the basis of Annexure-I F.I. Statement and to proceed with the same in accordance with law. The 2nd respondent-D.G.P. is directed to take appropriate action in order to avoid such contingencies in future as directed by this Court in the decision reported in (1998) 1 Ker LT 364 : (1998 Cri LJ 1187). The respondents 2 and 3 are directed to report to this Court the action taken by them in compliance of the above directions of this Court.