# Smt. Rina Kumari v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 841
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-06
- **Case number:** Criminal Misc. Writ Petition No. 10792 of 2015
- **Bench:** Sudhir Agarwal, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rina-kumari-v-state-of-u-p-ors-43209
- **Pages:** 13

## Headnote

Constitution of India, Art.-226-Petitioner
seeking transfer of investigation from Civil
Police to CBCID-offence under Section 452,
376, 506 IPC read with Section 3 (i)Xii
SC/ST-conduct of Police from stage of
lodging FIR-even supporting the FIR version
u/s 161 Cr.P.C.-submitting final report
without statement of 164 Cr.P.C.-learned
Magistrate while rejecting final reportpassing structure against I.O.-considering
conduct of I.O.-state government to transfer
investigation to CBCID-petition allowed.
Held: Para-42, 43

## Text

_Characters 0–39,728 of 44,148. This is a partial read: ask again with offset=39728 for what follows._

2 All] Smt. Rina Kumari Vs. State of U.P. & Ors.
841
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHASHI KANT, J.
Criminal Misc. Writ Petition No. 10792 of
2015
Smt. Rina Kumari
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Rohit Pandey
Counsel for the Respondents:
A.G.A.
Constitution of India, Art.-226-Petitioner
seeking transfer of investigation from Civil
Police to CBCID-offence under Section 452,
376, 506 IPC read with Section 3 (i)Xii
SC/ST-conduct of Police from stage of
lodging FIR-even supporting the FIR version
u/s 161 Cr.P.C.-submitting final report
without statement of 164 Cr.P.C.-learned
Magistrate while rejecting final reportpassing structure against I.O.-considering
conduct of I.O.-state government to transfer
investigation to CBCID-petition allowed.
Held: Para-42, 43
42.
We direct Chief Secretary, U.P.
Government; Principal Secretary (Home),
U.P.
Government;
and,
Secretary
(Appointment),
U.P.
Government
to
immediately look into the matter, take
appropriate steps and finalize scheme(s) so
as to make U.P. Police Force, a real law and
order enforcing machinery which should
appear to be working and bring confidence
of people, back. It should also reflect upon
the steps taken by aforesaid officials in
respect of matters of non-registration of
reports
by
police
officials
whenever
information of occurrence of a cognizable
offence is conveyed. The steps taken shall
also show, how aforesaid officials have
ensured compliance of directions given by
this Court as well as Apex Court in Roop
Ram Vs. State of U.P. (supra) and Lalita
Kumari Vs. Government of U.P. (supra). In
case of lapses on the part of concerned
police officials, how steps would be taken to
punish the guilty officials should also be a
part of the scheme. They shall also submit a
progress report, on expiry of six months
from the date of delivery of this judgment,
showing steps taken by them in this regard
and the consequences thereof. They shall
make inquiry and inform the Court about
the officers who have disobeyed Court's
order
regarding
registration
of
first
information
report
so
that
separate
proceeding of contempt may be drawn
against them.
43. In the present case since conduct of
Investigating Officer is suspicious and
lacks independence and fairness, we
direct the State Government to transfer
inquiry to C.B.C.I.D., who shall proceed
with investigation and complete the
same within a period of three months.
Case Law discussed:
2009 (5)ADJ 707; 2014 (2) SCC 1; (1991) 4
SCC 406; (1980) 3 SCC 526; (1995) 3 SCC
757; (2004) 5 SCC 26.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This writ petition under Article 226
of the Constitution of India has been filed by
Smt. Rina Kumari seeking a mandamus
commanding
respondent
no.
2,
i.e.,
Superintendent of Police, Rampur to transfer
investigation of Case Crime no. 278-C/2014,
under Sections 452, 376, 506 I.P.C. and
3(1)XII SC/ST Act, Police Station Milak,
District
Rampur
from
the
present
Investigating Officer, Dr. Tej Veer Singh,
Circle Officer, Milak, Rampur to any other
officer and to direct a fair investigation.
2. The facts, in brief, are that the
petitioner fell victim to criminal act of
842
 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 5, Bal Kishan son of
Sohan Lal, who forcibly entered the house
of petitioner on 06.05.2014 at about 6.00
pm, and, committed rape at knife point.
When she raised alarm, respondent no. 5
ran away, assaulting petitioner. She went
to police station but no report was
registered, whereupon she had no option
but to move application under Section
156(3) Cr.P.C. before the concerned
Magistrate. Ultimately, under his order,
the report was lodged on 10.06.2014 at
13.00 hours against respondent no. 5.
3. Petitioner's statement under
Section 161 Cr.P.C. was recorded by
Investigating Officer only on 07.08.2014
in which she confirmed the offence of
rape committed by respondent no. 5 and
fortified the information given in first
information report. Her statement under
Section 164 Cr.P.C. was recorded before
Magistrate on 12.09.2014 where also she
confirmed her allegations levelled against
respondent no. 5. Despite that the
Investigating Officer, on the basis of
some
affidavits
of
some
persons,
submitted a final report no. 17 of 2015 on
15.10.2014.
4. The petitioner filed protest
petition
after
receiving
notice
on
23.02.2015. The Judicial Magistrate/
Additional Civil Judge (Junior Division),
Court No. 1, Rampur heard the matter and
making strictures against Investigating
Officer, rejected final report. He directed
for further investigation in the matter vide
order dated 07.04.2015. Since thereafter,
the Investigating Officer has not done
anything in the matter, being in collusion
with respondent no. 5 and, therefore,
petitioner
apprehend
that
present
Investigating Officer is biased. He is not
doing fair and partial inquiry therefore, it
should be transferred to some other
officer with a further direction to
complete it expeditiously.
5. While entertaining above writ
petition
on
04.05.2015,
this
Court
required the Investigating Officer to
appear alongwith case diary to show
progress and the kind of investigation he
has done in the matter.
6. On 18.05.2015 Dr. Tej Veer
Singh, Circle Officer, appeared before
this Court. He filed an affidavit, sworn on
the same date i.e. 18.05.2015 in which he
stated that though the victim, i.e.,
petitioner and her sister-in-law (Nand),
Mamta, both supported first information
report, but some independent persons,
namely, Brij Lal, Jageer Singh and
Mukhtiyar Singh and five others stated
that they have not heard any hue and cry
and no such incident had taken place.
There was a dispute with respect to land
over which the alleged 'Gher' was
constructed. The accused respondent no. 5
is the real brother of father-in-law of
petitioner and was implicated in a false
case. The Investigating Officer in para 20,
21 and 22 of his affidavit specifically said
as under:
"20. That after doing investigation
without being biased in a very fair
manner the deponent was of the view that
no such incident had taken place rather
younger brother of Bal Kishan who is
father in law of the informant has
launched false prosecution to grab the
property of his own brother.
21. That the accused Bal Kishan is
50 years old and has good reputation in
the village and none of the independent
witnesses have supported the version of
the first information report.
2 All] Smt. Rina Kumari Vs. State of U.P. & Ors.
843
22.
That
the
deponent
while
concluding the investigation gave his
specific
opinion
that
from
the
investigation as done by him in the period
of 04 months he could not find any
reliable evidence against accused, Bal
Kishan and the story as developed by the
informant in the first information report is
nothing but all tissue of lies and launched
only with intention to harass and
blackmail the accused for grabbing his
property. The deponent after doing
unbiased investigation prepared final
report on 15.10.2014 while exonerating
the accused, Bal Kishan."
7. He also made adverse comments
over the order passed by Judicial
Magistrate on 07.04.2015 declining to
accept final report. In para 27 of the
affidavit, the Investigating Officer said:
"27. That at this stage it will be not
out of place to mention here that the order
dated 07.04.2015 the Magistrate does not
seem to have perused the case diary
properly and has wrongly written that the
statement under Section 164 Cr.P.C. was
not copied in the case diary, although it is
very well present in the Parcha no. 6
dated 12.09.2014."
8. He further said that on 17.04.2015
he
himself
has
requested
the
Superintendent of Police, Rampur to
assign further investigating to some other
officer.
9. This Court enquired from Dr. Tej
Veer Singh, Investigating Officer, as to
why report was not lodged by police
when the victim, i.e., petitioner went to
lodge her report on the date of incident,
particularly when matter relates to a
serious offence under Section 376 IPC
considering directions given by this Court
in Roop Ram Vs. State of U.P. 2009(5)
ADJ 707 and Apex Court in Lalita
Kumari Vs. Government of U.P., 2014(2)
SCC 1, but he could give no reply.
10. We also inquired from him,
when the victim herself had supported her
case in repeated statements given, either
under Section 161 Cr.P.C. or 164 Cr.P.C.,
how he could say that there was no
evidence whatsoever and only on the
basis of some strangers statements, who
had not seen any such incident for the
reason that statement of persons who are
not witnesses of any incident cannot
prove that no such incident took place,
particularly when there were two persons,
namely, the victim as well as her sister-inlaw who fortified first information report
in their statements, but here also he could
give no reply whatsoever.
11. We also could not understand as
to why no attempt was made to have
medical examination of victim on the date
of incident when she had gone to police
station to lodge first information report
and what medical examination would
reveal after several months of incident.
The suggestion of Investigating Officer
that victim was not cooperating, does not
appear to be correct for the reason that in
her statement given before Investigating
Officer as well as in the Court under
Section 164 Cr.P.C., she has reiterated the
same facts as mentioned in report and
there is no variation whatsoever. Even
before this Court she has maintained her
version.
12. Moreover, photocopy of case
diary
contains
10
parchas
dated
10.06.2014,
11.06.2014,
13.06.2014,
04.08.2014,
07.08.2014,
12.09.2014,
844
 INDIAN LAW REPORTS ALLAHABAD SERIES
23.09.2014, 12.10.2014, 14.10.2014 and
15.10.2014.
13. Parcha no. 7 dated 23.09.2014
shows that Investigating Officer received
by post eight affidavits of Mukhtiyar
Singh son of Sri Fauji Singh; Indrapal son
of Sri Khem Karan; Brijlal son of Sri
Mast Ram; Zorawar son of Sri Indraman;
Tota Ram son of Sri Umrao; Jageer Singh
son of Sri Nihal Singh; Ram Das son of
Sri Sukhan; and, Bandu Ram son of Sri
Munna Lal, which were almost in similar
language and noted down in the said
parcha. He also received a copy of sale
deed, also noted down in the said parcha.
The deponents of affidavits said to appear
before
Investigating
Officer
on
14.10.2014.
Sri
Mukhtiyar
Singh,
Indrapal, Brijlal, Zorawar, Tota Ram,
Jageer Singh, Ram Das and Bandu Ram
verified the facts stated in their affidavits,
earlier sent by post.
14. The entire report, nowhere
shows any attempt on the part of
Investigating Officer to find out, who
arranged those affidavits to be sent by
post and what was the occasion therefor.
When he recorded statement of accused
after receiving said affidavits and having
the statements of deponents of affidavits,
who verified the same, what sanctity can
be attributed to a statement in negative
when affirmance was already there.
15. Since the matter is pending for
further investigation, we are refraining
ourselves from making such observations
which may influence investigation and
prejudice either of the parties but cannot
desist from observing that Investigating
Officer, Dr. Tejveer Singh has shown a
complete negligence in an inquiry where
serious allegation of offence of rape is
involved. He has failed to show prudent
and scientific investigation in the matter.
16. From very beginning he appears
to have a particular mind set that accused,
being elder brother of father-in-law of the
victim, may not have committed such an
offence; and there appears to be a
property
dispute.
The
Investigating
Officer has proceeded as if he was
deciding
a
civil
dispute.
He
has
completely ignored straight and relevant
evidence available to him.
17.
We reiterate our prima facie
observations that the conduct of Investigating
Officer, in the case in hand, is clearly partisan
and inclined to protect the accused. The
complainant-victim has been dealt with in a
most illegal and discarded manner. This is
from the very beginning, when she visited
police station for lodging report but denied by
police, compelling her to approach Magistrate
under Section 156(3) Cr.P.C. and it is his
order under which the report was lodged after
more than a month of the date of incident.
18. In a case where heinous crime of
rape is involved, an immediate and
earliest investigation can provide crucial
and relevant evidence which may wither
away with passage of time. Unfortunately
police herein has shown a conduct which
has
helped
accused.
This
conduct
apparently defy the directions of this
Court as well as Apex Court whereunder
they were under obligation to register a
report and proceed for investigation
without any further delay.
19.
The second attempt is made by
police by submitting final report in the matter
which was rejected by Judicial Magistrate
concerned,
making
aspersions
against
Investigating Officer. We are surprised to see
2 All] Smt. Rina Kumari Vs. State of U.P. & Ors.
845
that Investigating Officer has the audacity of
condemning order of Judicial Magistrate, in
his affidavit filed before this Court,
contending that Judicial Magistrate has
omitted to consider some vital aspects while
rejecting final report. This conduct of
Investigating Officer is self speaking and
manifests his commitment to help the
accused by gong to any extent.
20. We are also surprised to see the
way in which police officers are making
investigation in matters involving heinous
crime. We find virtually a complete
apathy on their part. If something
has/could happen on its own, one may
thank to his luck but police would not be
able to turn anything of its own efforts. It
is like a woodcraft structure. Conduct of
Investigating Officer prima facie shows
his biased attitude towards accused.
21. This situation we find almost in
every third case, coming before this
Court. Probably it is this laxity on the part
of police which is causing increase of
crime rate, extremely, in State of U.P.
Virtually every person in this State is
afraid that anything may happen at any
time
anywhere.
There
is
lack
of
confidence in law enforcing machinery.
The law and order situation is very
vulnerable.
22.
Learned Additional Advocate
General, present in the Court, at one point
of time finds himself optionless but to
concede about deteriorating condition of
law and order in the State of U.P. and also
failure on the part of Police, not only in
prevention of crime but also detection/
investigation and prosecution. It reminds us
a situation where a legal luminary in Apex
Court (Hon'ble V.R. Krishna Iyer, J.) had to
observe, "Who can police the Police".
23. Police Force is meant for protection
of people. Its sole aim and purpose is to
maintain law and order by preventing crime.
If committed, to investigate out and book the
guilty person, and get punished in accordance
with law. There is no other agency in the State
except 'Police' who has this statutory as well
as constitutional obligation for protection of
people.
24.
Unfortunately, it is still living in
colonial State of affairs when Police used to
be deployed against public to crush their
genuine demands. Police, at that time,
reflected glorified image of ruling Colonial
State. It treated inhabitants of country as
slaves and that is why always tried, not to
allow them to raise their voice, against ruling
Empire. More than half a century back, India
attained its independence. Still nothing has
noticeably improved. Though we are now
governed by Constitution, given by the people
of India to itself so as to function, ''for the
people', ''by the people', ''of the people' but
Police has not mend its ways.
25.
Today people are frightened more
with Police than criminals. There is virtually a
lack of confidence with this Uniformed Force.
Judicial cognizance can be taken of several
heinous crimes, committed almost daily, many a
times
with
the
nexus
of
Politicians/Criminals/Police personnel making
common
and
innocent
people,
target.
Criminality on the part of Police is highly
dangerous, being a double edged weapon. When
they commit crime, they are themselves being
investigating agency, naively cover up the
matter. The Courts of law, ultimately and
ordinarily, fail to punish guilty for want of
proper evidence for which the agency is
responsible.
26. In criminal prosecution, eyes and
ear of courts of law, basically, is the
846
 INDIAN LAW REPORTS ALLAHABAD SERIES
Prosecuting Agency. When agency itself is
indulged in a cover up mission, it is almost
impossible to bring guilty person to book and
punish. Police officials have become so
daredevil that they do not hesitate in
committing day light, daring offences, and
thereby to stick to it, may be for the reason
that they are well equipped with the system
of covering it up. The situation is really
alarming and needs immediate remedial
measures. The public dissatisfaction and
distress cannot wait indefinitely if it is not
attended now. It may be too late in the day. It
may burst in a people's revolution, we are
witnessing in some other parts of the world.
27. In Delhi Judicial Service
Association Vs. State of Gujarat & Ors.,
(1991) 4 SCC 406 where brutal behaviour
of police in arrest and assault of a Chief
Judicial
Magistrate
of
Nadiad
was
considered in contempt petition as well as
writ petitions entertained directly, the
Court observed:
"Aberrations of police officers and
police excesses in dealing with the law and
order situation have been the subject of
adverse comments from this Court as well as
from other courts but it has failed to have
any corrective effect on it.." (Para 39)
28. Hon'ble Krishna Ayer, J in Prem
Shankar Shukla Vs. Delhi Administration,
(1980) 3 SCC 526 observed:
"If today freedom of the forlorn
person falls to the police somewhere,
tomorrow the freedom of many may fall
elsewhere with none to whimper unless
the court process invigilates in time and
polices the police before it is too late."
29. In a concurring judgment in
Dhananjay Sharma Vs. State of Haryana
& Ors. (1995) 3 SCC 757 Hon'ble Faizan
Uddin, J in para 58 observed:
"58. It is in common knowledge that in
recent times our administrative system is
passing through a most practical phase,
particularly, the policing system which is not
as effective as it ought to be and unless some
practical correctional steps and measures
are taken without further delay, the danger
looms large when the whole orderly society
may be in jeopardy. It would, indeed, be a
sad day if the general public starts
entertaining an impression that the police
force does not exist for the protection of
society's benefits but it operates mainly for its
own benefit and. once such an impression
comes to prevail, it would lead to disastrous
consequences." (emphasis added)
30. The Court took judicial notice in
para 57 of the judgment that every
morning, one opens newspapers and goes
through its various columns, feels very
much anguished and depressed, reading
reports
of
custodial
rapes,
deaths,
kidnapping,
abduction,
fake
police
encounters and all sorts of other offences
and lawlessness by police personnel, of
which countless glaring and concrete
examples are not lacking.
31. In Daroga Singh & Ors. Vs.
B.K. Pandey (2004) 5 SCC 26 the Court
remarked object with which the Police
Force was created and said that police is
the executive force of State to which is
entrusted the duty of maintaining law and
order and of enforcing regulations for
prevention and detection of crime. It is
considered by society as an organised
force of civil officers under the command
of State, engaged in the preservation of
law and order in society and maintaining
peace by enforcement of laws and
2 All] Smt. Rina Kumari Vs. State of U.P. & Ors.
847
prevention and detection of crime. One,
who is entrusted with the task of
maintaining discipline in society, must, first
itself be disciplined. Police is an agency to
which social control belongs. Therefore the
Police has to come up to the expectations of
society. Then the Court reminded itself,
policing role, the country witnessed during
British Raj, and, in para 44, said:
"44. We have not been able to forget
the policing role of the police of British
Raj wherein an attitude of hostility
between the police and the policed under
the colonial rule was understandable. It is
unfortunate that in one of the largest
constitutional democracies of the world
the police has not been able to change its
that trait of hostility."
32. We have no manner of doubt that
Police Force constitutes real backbone of
State's power to maintain law and order. But
it would be possible only when agency
works with real devotion and honesty to its
constitutional and legal obligation, instead
of satisfying its petty material demands.
Come what may, still Police is Police. It can
make wonders and miracles. No one has the
capacity or courage to Police the Police.
Harden criminals can be shown wholly
innocent and innocent, honest and simple
ones may be depicted a hardcore criminal.
Irrespective of nature of crime committed
and brought to its notice, still may not feel
any anxiety to bring culprits to Courts with
effective prosecution so as to ensure
appropriate punishment to them. It may
manage to set the State in a way that
criminals may ensure their freedom by
threatening
victims
etc.
and
making
witnesses to loose their life and heart for
supporting prosecution. The public at large
has no control over it. State has to take care
of this situation.
33. The real problem lies with officials
responsible for investigation. It appears that
they lack basic knowledge and technique.
Everything proceeds in a casual fashion.
Time and again, Courts have shown their
disappointment with the ways, Police has
worked out a case but it has made no impact
upon
Police
Force.
Unfortunately,
observations and expectations of Courts have
gone in vain. The Police Force have not
mend its ways. Most of the matters do not
come to the Court. When somebody dares to
take up a matter to Court, only then the
extent to which Police act ruthlessly and
arbitrarily, is experienced by Courts also.
The situation is really very grim and
disappointing. It is high time when State
should look into large spectrum of reforms to
correct Police and policing in State, else
things may render uncontrollable.
34. We find no hesitation and
constrain to observe that the way in which
police has proceeded in this matter, less
say is better. Virtually there is no
effective investigation whatsoever, till
date. If this is the situation in a case where
a girl has been subjected to a heinous
crime of rape, what one can expect in
other matters. It is now high time where
the State Government and officials
holding high position in Department of
Home and other relevant ones, should
wake up from slumber and take remedial
corrective measures to make Police Force
more
effective,
active
and
people
oriented.
35. Besides above, there is another
serious aspect on which the Police has
shown virtually a contemptuous attitude
to the Court.
36. This Court seriously deprecated
general practice followed by police
848
 INDIAN LAW REPORTS ALLAHABAD SERIES
officials in denying to register first
information reports, despite information
given
regarding
occurrence
of
a
cognizable offence. This was noticed in
Roop Ram Vs. State of U.P. (supra) and
in paras 26, 27, 28, 29 and 30 of the
judgment, Court said:
"26. However, this matter does not end
here. It is true that for an orderly society, the
importance of an effective and efficient
police force dedicated to the public service is
of utmost importance and is the necessity of
the time. It is a matter of common knowledge
that the people run from pillar to post after
occurrence of a serious crime for mere
registration of the report but the concerned
police authorities failed to realise trauma
and harassment of such people and simply
ignore the observance of their statutory duty
despite of the same being declared
mandatory and is the law of the land settled
by the Apex Court. Crime detection and
adjudication are two separate though
inseparable wings of justice delivery system.
The former is the basic obligation of the
police and latter is in the hands of judiciary.
Though the Code provides for an alternative
remedy of approaching the Superintendent of
Police and thereafter to the Magistrate
concerned under Section 156(3) but such
remedy instead of providing any solace and
relief to the harried lot, on the contrary is
adding to their sufferance due to persistent
lacklusture attitude of police compelling a
common man to run from one authority to
another for a simple cause of registration of
an information constituting commission of a
cognizable offence, so that the police may
make
investigation
according
to
the
procedure prescribed in the Code.
27. The subordinate courts are already
heavily burdened with the huge number of
such cases where the people having
approached the police authorities in vain,
then
had
approached
the
Magistrate
concerned under Section 156(3). Even this
Court is now being burdened for the only
reason that the information has not been
registered by the police under Section 154.
What normally ought to have been an
exception has turned out to be a routine
exercise. A very large number of applications
are being filed under Section 156(3) of the
Code before the Magistrates concerned and
consequential
proceedings
are
coming
frequently to this Court also. Huge time is
consumed only in such matters though it
could have been utilized for other matters of
substance and that too only for the reason
that the police has shown blatant slackness
in observance of its statutory obligations. It
appears that the police is conveniently
omitting to remind itself that its fundamental
and basic duty is to prevent occurrence of
any crime and if it has already occurred, to
investigate and detect the crime so as to
bring the accused to justice. The first step in
this regard is as soon as the information of a
cognizable offence is received, it must
register the same and thereafter to proceed
to investigate the matter in accordance with
law.
28. This Court also take judicial
notice of the fact that the tendency
developed with the police authorities in
refusing to register F.I.R. is not for any
valid reason, as said above, but perhaps
for administrative reasons namely to
show
to
the
higher
authorities
improvement of law and order in the area
within their jurisdiction on the ground
that number of F.I.R. registration has got
down
drastically
comparing to
the
corresponding past or in respect to the
period when some other police officers
were posted thereat. It appears that the
State
Government
and
the
higher
authorities of the police department, while
assessing the performance of a police
2 All] Smt. Rina Kumari Vs. State of U.P. & Ors.
849
Officer-in-charge of a police station, take
into consideration whether F.I.R.'s have
reduced comparing to the predecessor in
office as a major factor to judge the position
of law and order. The basic data taken into
account by the State Government or the
higher authorities of the police department is
the number of F.I.R. of cognizable offence
registered in the concerned police station.
Probably this has led the tendency in the
concerned police authorities to refuse
recording of F.I.R. and thereby creating
artificially good record showing reduction in
crime rate due to lesser recording of F.I.R. It
totally ignores the fact that due to nonregistration of F.I.R. in a large number of
cases, pertaining to cognizable offence, the
people are compelled to approach the
Magistrate by filing applications under
Section
156(3)
of
the
Code.
This
demonstrates that the declaration of law by
the Apex Court as well as this Court that
police is under a statutory obligation to
register F.I.R. has gone down on blind eyes
with the police authorities as well as the
Government. The situation has not shown
any
improvement
in
the
method
of
functioning of the police authorities in such
matters despite of repeated observations by
the Court.
29. The Court cannot overlook the
fact that criminal justice system in the
State is already over burdened. A large
number of vacancies of judicial officers in
subordinate courts are lying for one or
the other reason. Mere inaction on the
part of police authorities in observance of
their statutory duty and/or faulty system
of investigation is adding further to the
already over burdened justice system.
This has gone to an extent that the people
who are arrested in the early younger age
are still awaiting for their trial etc.,
though have attained advanced old age.
In many of the matters, large number of
accused
have
died
but
the
Court
proceedings
could
not
have
been
completed and even not commenced in
some of the cases. In many others the trial
etc., suffers due to death of material
witnesses due to prolonged time taken in
the Courts. At this stage, it would be
prudent
to
notice
some
of
the
observations/ directions of the Apex Court
in Lalita Kumari v. Government of Uttar
Pradesh and Ors. . Paras 4 and 5 the
Apex Court held:
4. It is a matter of experience of one
of us (B. N. Agrawal, J.), while acting as
Judge of the Patna High Court, Chief
Justice of the Orissa High Court and
Judge of this Court that inspite of law laid
down by this Court, the police authorities
concerned do not register F.I.Rs. unless
some direction is given by the Chief
Judicial Magistrate or the High Court or
this Court. Further, experience shows that
even after orders are passed by the
Courts concerned for registration of the
case, the police does not take the
necessary steps and when matters are
brought to the notice of the inspecting
Judges of the High Court during the
course of inspection of the Courts and
Superintendents of Police are taken to
task, then only F.I. Rs. are registered. In a
large number of cases investigations do
not commence even after registration of
F.I. Rs. and in a case like the present one,
steps are not taken for recovery of the
kidnapped person or apprehending the
accused person with reasonable dispatch.
At times it has been found that when
harsh orders are passed by the members
of the judiciary in a State, the police
becomes hostile to them, for instance, in
Bihar when a bail petition filed by a
police personnel, who was the accused
was rejected by a member of the Bihar
Superior
Judicial
Service,
he
was
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 INDIAN LAW REPORTS ALLAHABAD SERIES
assaulted in the court room for which
contempt proceeding was initiated by the
Patna High Court and the erring police
officials were convicted and sentenced to
suffer imprisonment.
5.
On the other hand, there are
innumerable
cases
that
where
the
complainant is a practical person, F.I. Rs.
are registered immediately, copies thereof
are made over to the complainant on the
same day, investigation proceeds with
supersonic jet speed, immediate steps are
taken for apprehending the accused and
recovery of the kidnapped persons and the
properties which were the subject-matter of
theft or dacoity. In the case before us
allegations have been made that the Station
House Officer of the police station concerned
is pressurising the complainant to withdraw
the complaint, which, if true, is a very
disturbing state of affairs. We do not know,
there may be innumerable such instances.
30. It is high time now that this Court
must endeavour to find out some ways to
make the police authority adhere to their
statutory duties. The time perhaps has
ripened when this Court in exercise of its
inherent power must look into this disease
in a more serious manner and find out
ways by issuing appropriate directions to
the concerned authorities, which may
result in compelling the police authorities
either to observe their statutory duties
faithfully or to face consequences."
37. Having said so this Court issued
certain directions in para 32, which read
as under:
"(i) When a Police Officer-in-charge
of the police station or any other Police
Officer, acting under the direction of the
Officer-in-charge of police station refuses
to register an information disclosing a
cognizable offence, the informant may
either approach the Superintendent of
Police under Section 154(3) or the
Magistrate
concerned under
Section
156(3) of the Code ;
(ii) If the informant approaches the
Superintendent of Police, who finds that
the refusal of registration of F.I.R. by the
Police Officer-in-charge of the police
station was unjust or for reasons other
than valid, and where he directs for
investigation, he shall initiate disciplinary
proceedings against the Officer-in-charge
of the police station for such nonobservance
of
statutory
obligation
treating the same to be a serious
misconduct justifying a major penalty and
complete the proceedings within three
months from the date he passes an order
for investigation into the matter ;
(iii)
Where,
the
informant
approaches the Magistrate concerned
under Section 156(3) of the Code and the
Magistrate
ultimately
finds
that
information
discloses
a
cognizable
offence and direct the police to proceed
for investigation, he shall cause a copy of
the order sent to Superintendent of Police/
Senior
Superintendent
of
Police
(hereinafter referred to as the S.P./S.S.P.)
of the concerned district and such
S.P./S.S.P. shall cause a disciplinary
inquiry into the matter to find out the
person guilty of such dereliction of duty,
i.e.,
failure
to
discharge
statutory
obligation,
i.e.,
registration
of
an
information disclosing cognizable offence
treating the said failure as a serious
misconduct justifying major penalty and
shall
complete
the
disciplinary
proceedings within three months from the
date of receipt of the copy of the order
from the concerned Magistrate. After
completing the disciplinary proceedings,
the S.P./S.S.P. concerned shall inform
about the action taken against the
2 All] Smt. Rina Kumari Vs. State of U.P. & Ors.
851
concerned police Officer-in-charge of the
police station to the Magistrate concerned
within 15 days from the date of action
taken by him but not later than four
months from the date of receipt of the
copy of the order from the Magistrate
concerned ;
(iv) The Magistrate concerned shall
review the cases in which the copy of the
orders passed under Section 156(3) of the
Code has been sent to concerned S.P./S.S.P.
quarterly and when it is found that the
concerned S.P./S.S.P. has also failed to
comply with the above directions of this
Court, he shall sent a copy of his order
alongwith
the information about noncompliance of this Court's order/direction
by the concerned S.P./S.S.P. to the Director
General of Police, U. P., Lucknow and the
Principal
Secretary
(Home),
U.
P.,
Lucknow who shall look into the matter and
take appropriate action as directed above
against the police Officer-in-charge of the
police station concerned as well as the
S.P./S.S.P. concerned for his inaction also
into the matter within three months and
communicate about the action within next
one month to the Magistrate concerned. The
Principal
Secretary
(Home),
U.
P.,
Lucknow and the Director General of
Police, U. P., Lucknow shall also submit a
report regarding number of the cases
informed by the concerned Magistrate in a
calendar year and also the action taken by
them as directed above by the end of
February of every year to the Registrar
General of this Court ; and (v) Besides
above, non-compliance of the above
directions of this Court shall also be treated
to be a deliberate defiance by the concerned
authorities above mentioned constituting
contempt of this Court and may be taken up
before
the
Court
concerned
having
jurisdiction in the matter, whenever it is
brought to the notice of this Court."
38. The matter pending before Apex
Court in Lalita Kumari Vs. Government of
U.P. (supra) came to be disposed of finally
vide judgment dated 12.11.2013. In para
111 of the judgment the Court said:
"111. 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 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:
852
 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 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."
39. The Apex Court also thus held
that whenever information of a cognizable
offence is given to a police officer
registration of report is mandatory.
Despite aforesaid authorities, in the
present case, concerned police officials
initially
declined
to
register
First
Information Report of a cognizable
offence under Section 376 I.P.C. which
compelled the informant to approach
Magistrate
concerned
under
Section
156(3) Cr.P.C. and when Magistrate
passed order, only then report was
registered.
40.
Despite repeated query, the
officials of respondent-State, present in the
Court, could not tell any reason as to why
report was not registered by police when
informant conveyed information regarding
occurrence of a cognizable offence. This
conduct of police officials of concerned
police station is not only illegal but shows a
blatant flagrant
disobedience and noncompliance of directions of this Court as
well as Apex Court, in the aforesaid
decisions.