1. The present Petition has been filed by the Petitioner under Article 21 and 226 of the Constitution of India as well as under the provisions of the Code of Criminal Procedure, 1973 for the prayers:
"(A) Your Lordships may be pleased to direct the Central Bureau of Investigation (CBI) to register the complaint of the petitioner for the offences punishable under Sections 376 read with Section 120B of Indian Penal Code dtd. 14.7.2012, and investigate the same in accordance with law.
(AA) The Honourable Court may be pleased to issue an appropriate writ, order or direction, directing the respondent No.2, herein to register an FIR for the offences punishable under Section 376, 114 and 120(B) of the Indian Penal Code 1908 in connection with the written complaint dated 14th Jyly, 2012, given by the petitioner herein to the respondent No.2 herein, and thereafter the Honourable Court may be pleased to transfer the investigation of the said registered FIR to the Central Bureau of Investigation (CBI) and further be pleased to direct the Central Bureau of Investigation (CBI) to investigate in connection with the said FIR.
(B) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent, its agents, servants and subordinates, not to proceed further with any inquiry in connection with the complaint given by the petitioner in writing for the offences punishable under sections 376 read with section 120B of Indian Penal Code dtd. 14.7.2012, without registering the same as FIR.
(C) ..."
2. Heard learned Senior Advocate Shri B.B.Naik appearing with learned Advocate Shri Jal S. Unwala for the Petitioner and learned APP Shri H.L.Jani for Respondent No.1-State of Gujarat.
3. Learned Senior Advocate Shri B.B.Naik submitted that the present Petition seeking registration of FIR and other reliefs, has a reference to the land situated at Vadodara, for which the complaint is filed and registered. He submitted that there is a police station of CID Crime at Vadodara and still the same has not been registered at Vadodara, but it has been registered as FIR being I-CR No.5 of 2012 at CID Crime, Gandhinagar. He therefore submitted that though the police station is having jurisdiction at Vadodara, FIR has been registered with CID Crime, Gandhinagar Police Station deliberately with an ulterior motive. He submitted that the acts, omissions and commissions alleged to have been committed by the Petitioner are at Vadodara and therefore the FIR could not have been registered at Gandhinagar. It is submitted that the Petitioner is NRI or a foreign national and she has been roped in because she had a joint account with her father. Learned Senior Advocate Shri Naik submitted that it is required to be mentioned that the arrest was made at midnight without a lady Police Constable or an officer pursuant to the FIR and some documents have been seized. However, only to pressurize the Petitioner - accused for the other land dispute at Rajkot, she has not only been arrested but the alleged offences against her of rape have been committed. Learned Senior Advocate Shri Naik therefore submitted that when the complaint is sought to be made, the same has not been registered and the inquiry has been made, which is not permissible. Learned Senior Advocate Shri Naik strenuously submitted that instead of registering the FIR, the Petitioner is sought to be arrested and pressurized. Learned Senior Advocate Shri Naik submitted that the Petitioner has been arrested at midnight without the lady Police Constable / officer and the time of arrest is shown as 6:40 am as per the record. Learned Senior Advocate Shri Naik submitted that she has been remanded to the police custody for 5 days by the Court of Metropolitan Magistrate and thereafter she has been sent to judicial custody. Learned Senior Advocate Shri Naik therefore submitted that there was no justification for remand and no procedure / guidelines as laid down in case of Joginder Kumar v. State of U.P. and others reported in AIR 1994 SC 1349 as well as Siddharam Satlingappa Mahetra v. State of Maharashtra and Others, (2011) 1 SCC 694 have been followed. Learned Senior Advocate Shri Naik also submitted that the Petitioner was kept in the office of CID Crime, Meghaninagar Police Station for 5 days where there is no facility of lock-up. It was submitted that during this period, the rape was committed by the I.O. and other police personnel, for which the complaint is sought to be given, which is not registered under Section 154. Learned Senior Advocate Shri Naik submitted that as the higher officials are involved and as she did not disclose the same for some time to jail authorities, it was submitted that she desired to consult the Senior Advocate. However, Senior Advocate could not visit her and another Junior Advocate visited her in jail. Learned Senior Advocate Shri Naik also referred to the communication by the Consulate at Bombay and Center for Amarican Citizen.
4. Learned Senior Advocate Shri Naik pointedly referred to Section 154 of Cr.PC and submitted that when any cognizable offence is disclosed, FIR has to be registered and the police has no power to make any inquiry, and the investigation ought to have been made. Learned Senior Advocate Shri Naik also referred to the provisions of Sections 154, 157, 158 and 159 of Cr.PC and submitted that once the cognizable offence is disclosed, the FIR has to be registered and thereafter the matter would proceed as provided under Section 157. He submitted that the learned Magistrate may direct the investigation or the inquiry. However, all these provisions of the Code of Criminal Procedure are fragrantly violated and the inquiry has been made dehors the law. Learned Senior Advocate Shri Naik also referred to Section 41, which provide for arrest of a person and also referred to the conditions, which are required to be satisfied. He submitted that in light of the guidelines laid down in case of Joginder Kumar (supra), an amendment has been made in Section 41 of Cr.PC by way of Section 41(A), (B) and (C), which has been brought into force w.e.f. 1.11.2010. Therefore, learned Senior Advocate Shri Naik submitted that these provisions have not been followed, which is mandatory procedure laid down and required to be followed. Learned Senior Advocate Shri Naik strenuously submitted that no woman could be arrested without a lady Police Constable or officer at night and no permission for arrest has been obtained. He strenuously submitted that it was not a case of an urgency or serious case of any terrorist activity where a female accused was required to be arrested at midnight. Learned Senior Advocate Shri Naik therefore submitted that there was no such need for not complying with the statutory provisions or the guideline.
5. In support of his submission, learned Senior Advocate Shri Naik has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of West Bengal and Others v. Committee For Protection of Democratic Rights, West Bengal And Others - (2010) 3 SCC 571 and pointedly referred to the observations made in paragraph 70 and submitted that as observed that the powers have been provided when there are violation of Article 21. He also referred to the observations made in paragraph 68 and submitted that the State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. Learned Senior Advocate Shri Naik therefore submitted that the existence of an alternative remedy is no bar to exercise jurisdiction under Article 226 of the Constitution of India.
6. Similarly, learned Senior Advocate Shri Naik has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Ashok Kumar Todi v. Kishwar Jahan And Others - (2011) 3 SCC 758 and made the submissions referring to the observations made in paragraphs 48 to 51. He emphasized the observations made in paragraph 48:
"48. Under the scheme of the Code, investigation commences with lodgment of information relating to the commission of an offence. If it is a cognizable offence, the officer in charge of the police station, to whom the information is supplied orally has a statutory duty to reduce it to writing and get the signature of the informant. He shall enter the substance of the information, whether given in writing or reduced to writing as aforesaid, in a book prescribed by the State in that behalf. The officer-in- charge has no escape from doing so if the offence mentioned therein is a cognizable offence and whether or not such offence was committed within the limits of that police station. But when the offence is non-cognizable, the officer in charge of the police station has no obligation to record it if the offence was not committed within the limits of his police station. Investigation thereafter would commence and the investigating officer has to go step by step."
7. Therefore, learned Senior Advocate Shri Naik has also relied upon the judgment of the Hon'ble Apex Court in case of State of Haryana and Others v. Ch. Bhajan Lal and Others - AIR 1992 SC 604 = 1992 (Sup) 1 SCC 335-State of Haryana and Ors. v. Bhajan Lal and Others and again emphasized the observations made in the said judgment. It was strenuously emphasized the observations regarding the registration of the FIR and he pointedly referred to the observations:
"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 a Section 154(1) 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."
Learned Senior Advocate Shri Naik emphasized the observations made in paragraph 31 with regard to Section 154 of the Code of Criminal Procedure and submitted that it has been observed that the word "information" is used without any qualifying word and therefore the FIR ought to have been registered for the alleged offence. Learned Senior Advocate Shri Naik also submitted that the procedure has been very well provided in the Cr.PC. Learned Senior Advocate Shri Naik submitted that Section 154 of Cr.PC required the officer in- charge of the police station to register the FIR for the offence and Section 157(b) and provides that if the officer-in-charge of the police station feels that there is no sufficient ground for entering into a investigation, he may not investigate the case and he must in that case submit a report to the learned Magistrate in compliance with the statutory provisions. Learned Senior Advocate Shri Naik submitted that there is no such report and therefore the FIR under Section 154 ought to have been registered. Learned Senior Advocate Shri Naik also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Prakash Singh Badal and Another v. State of Punjab and Others - (2007) 1 SCC 1 and pointedly referred to the observations made in paragraphs 60, 63 and 64. He emphasized the observations:
"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 a Section 154(1) of the Code, the police officer concerned 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."
8. Learned Senior Advocate Shri B.B.Naik again submitted that the officer in-charge of the police station is obliged to register the FIR and proceed further as per the Code of Criminal Procedure and it is the duty cast upon him. He emphasized the observations made in paragraph 68 and submitted that as observed in this judgment, once the information disclosing a cognizable offence is laid before the 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.
9. Learned Advocate Shri Naik also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2006) 2 SCC 677 - Ramesh Kumari v. State (Delhi) and Ors. to support his submissions, both - regarding the mandatory nature of Section 154 of Cr.PC for registration of FIR and also to support his submission that availability of alternative remedy is no bar to exercise jurisdiction by the High Court under Article 226 of the Constitution of India. He also referred to the judgment of the Hon'ble Apex Court reported in (2006) 12 SCC 229 - Lallan Chaudhary and Others v. State of Bihrar and Another. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1979 SC 1791 – Ram Lal Narang v. State (Delhi Admn.) Learned Senior Advocate Shri B.B.Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 11 SCC 687 - Prem Prakash Alias Lillu And Another v. State of Haryana and empmasized the observations made in paragraph 22 and submitted that as observed in this judgment, as per Section 154 Cr.PC, it is obligatory for the police to register a case when the facts constituting a cognizable offence are brought to the notice. Learned Senior Advocate Shri Naik has submitted that as none of the guidelines, which are required to be fulfilled for arrest of a female accused have been complied with and as the arrest was without a lady police constable or officer, the same was illegal and it would amount to abduction and wrongful confinement. Learned Senior Advocate Shri Naik has therefore referred to various other provisions for the alleged offence under Sections 342, 441, 445, 447, 364, 383, 387 and 398. Learned Senior Advocate Shri B.B.Naik has stated that the subsequent judgment reported in (2012) 7 SCC 407 - Samaj Parivartan Samudaya and others v. State of Karnataka and others referred to the inquiry to be made by the Police Officer for his satisfaction before registration of the FIR under Section 154 was with reference to CBI, where the Delhi Special Police Establishment Act, 1946 provide for such an inquiry.
10. Learned Senior Advocate Shri B.B.Naik emphasized referring to Article 21 of the Constitution of India that no person shall be deprived of the liberty except according to the procedure established by law, and the arrest is in violation of the mandatory provision itself would be illegal and it would amount to illegal detention. He therefore submitted that the Hon'ble Apex Court has made the observations in this regard and as referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1993 (2) SCC 746 – Nilabati Behera (Smt.) Alias Lalita Behera (Through The Supreme Court Legal Aid Committee) v. State of Orissa and Others, referring to the custodial torture and death and submitted that investigation was handed over to the CBI. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2010) 2 SCC 200 - Rubabbuddin Sheikh v. State of Gujarat and Others, as well as judgment of the Hon'ble Apex Court reported in (2011) 13 SCC 329 - Rajender Singh Pathania And Others v. State (NCT of Delhi) and Others and emphasize the observations made in Head Note B regarding as and when the CBI investigation can be directed. He submitted that the CBI investigation could be held when the Court is satisfied that the opposite parties are very powerful and influential persons or State authorities like top police officials are involved and investigation has not proceeded in proper direction or it has been biased. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 5 SCC 79 - Narmadabai v. State of Gujarat and Others. Learned Senior Advocate Shri Naik strenuously submitted that when there is a improper investigation or the ends of justice require, the investigation can be handed over to the CBI. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (1995) 1 SCC 58 - Commissioner of Sales Tax, J&K and Others v. Pine Chemicals Ltd. and Others and referring to the observations made in paragraph 17, he submitted that the judgment of three judges was binding upon the judgment and therefore though the judgment in case of Ram Lal Narang v. State (Delhi Admn.) [supra], which has not been considered in a subsequent judgment as a binding precedent and therefore the latter judgment would be per incuriam. Similarly, he submitted that the other judgment which has not considered the earlier judgment in case of Ram Lal Narang v. State (Delhi Admn.) [supra] while deciding the point involved referring to Section 154 Cr.PC would be per incuriam. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2004) 1 SCC 681 - Babu Parasu Kaikadi (Dead) By LRS. v. Babu (Dead) Through LRS. to reiterate his submissions about the precedent that the judgment of three judges Bench was binding to the coordinate Bench. He also referred and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 7 SCC 639 - State of Madhya Pradesh v. Narmada Bachao Andolan and Another and emphasized the observations with regard to the precedent made in paragraphs 64 to 68. Learned Senior Advocate Shri Naik has emphasized the observations:
"67. Thus, "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
11. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2012) 4 SCC 516 - Rattiram and Others v. State of Madhya Pradesh and emphasized the observations in paragraphs 30 to 32. Learned Senior Advocate Shri Naik referred to paragraph 33, which has a reference to another judgment reported in (2011) 1 SCC 694:AIR 2011 SC 312 - Siddharam Satlingappa Mhetre v. State of Maharashtra. He submitted that it has been found that if the earlier judgments are not considered by the subsequent coordinate Bench, it would be per incuriam. He emphasized the observations:
"34. The sequitur of the above discussion is that the decisions rendered in Moly and Vidyadharan are certainly per incuriam."
12. Learned APP Shri H.L.Jani has submitted that the background of facts are necessary as the judgments or the series of judgments cited are required to be read in the background of the facts of each case. Learned APP Shri Jani submitted that all the judgments therefore have to be considered based on its own facts. Leaned APP Shri Jani submitted that the present case had its own merits where the conduct of the Petitioner is very relevant. Learned APP Shri Jani has referred to the chronology of events at length and in detail. Learned APP Shri Jani submitted that it has its origin in the FIR being I-CR No. 5 of 2012, which is required to be considered, where the present Petitioner is an accused. In order to have a pressure on the investigating agency, such an application has been filed. He submitted that the complaint was filed by the original complainant and thereafter the FIR was registered being FIR I-CR No. 5 of 2012 with CID Crime, Gandhinagar. In order to stall the proceedings and create a pressure on the investigating agency in an alleged offence qua the Petitioner and her father for the various offences with regard to the huge land and the amount which has been duped and the manner in which it has been done with systematic design, are required to be considered. He submitted that on the same day an account was opened in the name of he present Petitioner- accused who claims to be NRI or the foreign citizen and huge amount is withdrawn on the same day and it has a reference to a huge land, for which the father of the Petitioner is the main accused. Learned APP Shri H.L.Jani therefore submitted that as the case was transferred to the Additional DGP, Economic Cell, where the FIR was lodged. The grievance could not be made by the Petitioner. Learned APP Shri Jani submitted that the present Petition for registration of FIR is actuated by such malafide in order to stall the further investigation and to see that the I.O. and other officers are brought under pressure from making an independent investigation. Learned APP Shri Jani submitted that the original complaint was made and the FIR has been registered being I-CR No.5 of 2012 with regard to the aforesaid alleged land transaction and the huge amount for which the alleged offences under Sections 420, 406, 120B IPC are alleged to have been committed by the father of the Petitioner and the Petitioner. Thereafter she has been arrested. Learned APP Shri Jani submitted that initially she was not available and thereafter when it was informed that she is available at home, the yadi was sent to the State Control Room to keep a watch and when the arrest was made, the father and mother of the Petitioner were at home. Learned APP Shri Jani submitted that since the I.O. had proceeded from Gandhinagar, the arrangement for the female police constable / police officer at the time of arrest was sought to be made locally from Makarpura Police Station. Learned APP Shri Jani submitted that therefore at the time of her actual arrest, the female police constable / police officer was not present, but immediately she was taken to the nearest police station which is very near, where the female police constable was present and thereafter female police constable or the police officer has remained with the accused throughout. Learned APP Shri Jani submitted that there is no complaint made by the complainant with regard to any harassment from the place of her arrest at her place till she was taken to the nearest police station. Learned APP Shri Jani submitted that there was a lapse or irregularity, but from the nearest police station the female police constable has remained present throughout and the submissions with regard to the violation of the guidelines or the statutory provision are misconceived. He submitted that thereafter the Petitioner was sent from Vadodara to Ahmedabad along with female police constable. The other women police constable had remained present as per the duty. Learned APP Shri Jani has also produced the record and the statements of the female police constable or the personnel who has remained with the accused. Learned APP Shri Jani submitted that it is required to be mentioned that after she was arrested on 4.5.2012 and she was produced before the learned Magistrate and thereafter her remand was granted for 5 days from 24.5.2012 to 29.5.2012 and thereafter again she has been produced before the learned Magistrate and never any complaint about any harassment or the alleged offence has been made to the judicial officer. Learned APP Shri Jani submitted that during the period of her remand she was taken to her house and admittedly, the papers have been seized, where also she had the occasion to meet her mother, and no grievance has been made. Learned APP Shri Jani submitted that her interrogation was made from 24.5.2012 to 28.5.2012, and on 25.5.2012 she was taken to the house where her mother was present. Learned APP Shri Jani submitted that again she was taken to her house on 28.5.2012 where her mother was present and 16 documents / files were collected. Thereafter on 29.5.2012 she was produced before the learned Magistrate and was remanded to the judicial custody. Learned APP Shri Jani submitted that throughout this period though the petitioner had sufficient opportunity to make a grievance about such heinous crime, she has not disclosed to anyone including her mother or the judicial officer or even to the Doctors, who have examined her. Learned APP Shri Jani submitted that her medical examination was also made by the Doctors at Civil Hospital on 26.5.2012 and 29.5.2012. Thereafter at Sabarmati Jail also, she was examined by a female jail Doctor on 29.5.2012, 1.6.2012 and 2.6.2012. Learned APP Shri Jani submitted that thereafter she had been produced before the learned Magistrate every 15 days, but no such complaint has been made, and thereafter, with a deliberate attempt to malign the investigation officer and to pressurize the investigating officer, a story has been cooked- up that she has been ill-treated and raped while in the custody, she wanted to disclose to a Senior Advocate, who in turn declined and sent another Advocate. Learned APP Shri Jani therefore submitted that such submissions cannot be accepted at the face value and her own conduct is also required to be considered. Learned APP Shri Jani submitted that it may also to be mentioned that even the bail application was made by the petitioner before the High Court and it was granted on 11.7.2012 and no such grievance has been made with regard to the alleged offence of rape while she was in custody. It was submitted that the application which has been given is registered at the local level as local application no. 763 of 2012 in the station diary of Meghaninagar Police Station. Therefore it was sent for the further inquiry to the Makarpura Police Station and sought to be verified by the higher authority, i.e. DCP, Ahmedabad City. Learned APP Shri Jani submitted that the statement of the Petitioner accused was sought to be recorded on 14.7.2012, but she did not respond to any such inquiry. Thereafter, again on 16.7.2012, a reminder was sent, but she could not remain present at her house on 17.7.2012. Thereafter again, the effort was made, but she was not available. Learned APP Shri Jani submitted that therefore considering these various details, it is a case which require close scrutiny, and therefore, extraordinary jurisdiction under Article 226 of the Constitution of India or inherent jurisdiction under Section 482 of Cr.PC may not be exercised.
13. Learned APP Shri Jani submitted that it is well settled that if the petitioner has any grievance that her complaint has not been registered as a FIR, the Code of Criminal Procedure provides that an application could made to the learned Magistrate, who may proceed after making a inquiry or getting further material. Learned APP Shri Jani therefore submitted that if the petitioner makes an application before the Court of Magistrate for registration of the FIR, all these facts could be revealed and could be examined or scrutinized by the judicial authority, and therefore, the present Petition has been filed seeking such direction for registration of the FIR straightway under Section
154 of Cr.PC in order to see that no such scrutiny could be made.
14. Learned APP Shri Jani submitted that what could not be done directly, cannot be done in this indirect way. He also submitted that the delay for lodging the complaint after two months has also not been explained though every opportunity was available to her, including, when the Petitioner filed an application for bail, she had an opportunity of disclosing it to various persons, i.e. the mother, female medical officer, Judicial Magistrate. Now the Petition is sought to be made seeking registration of the FIR, which may not be entertained. Learned APP Shri Jani submitted that infact the petitioner has stated lies on oath and for that he has also referred to paragraph 11 and 11(B) of the Petition to emphasize about the averments and the conduct with regard to the averments made. Learned APP Shri Jani submitted that in her complaint she has stated that she does not know Gujarati and therefore she cannot write, but as could be seen from the medical papers and the statement of the Doctor, who had examined her, it is evident that, she has, in her own handwriting, stated in Gujarati, that she has not received any injury. Learned APP Shri Jani has therefore referred to the statement of Doctors Hetalben and Dr. Kirtiben, who had examined her. Learned APP Shri Jani has referred to the affidavit in reply to summarize his submissions and referred to the judgment of the Hon'ble Apex Court reported in (2007) 10 SCC 69 - Rajinder Singh Katoch v. Chandigarh Admn. And Others and emphasized the observations:
"8. Although the officer in charge of a police station is legally bound to register a first information report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them give rise to an offence, which can be investigated without obtaining any permission from the Magistrate concerned, the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not." [emphasis supplied] Again, it has been observed:
"11. We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi) wherein such a statutory duty has been found in the police officer. But, as indicated hereinbefore, in an appropriate case, the police officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not."
15. Learned APP Shri Jani also referred to the Police Manual and particularly Rule 167(5) as well as Rule 124 and submitted that it empowers such police officers to make an inquiry before registration of the FIR in a given case. Learned APP Shri Jani also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2006) 7 SCC 296 - Popular Muthiah v. State Represented by Inspector of Police and emphasize the observations:
"34. This Court furthermore laid down that the inherent power of the High Court can be invoked in respect of the matters covered by the provisions of the Code unless there is specific provision to redress the grievance of the aggrieved party.
35. It is also not in dispute that the said power overrides other provisions of the Code but evidently cannot be exercised in violation / contravention of a statutory power created under any other enactment."
Learned APP Shri Jani emphasized that as observed in this judgment, the learned Magistrate can examine the matter on the basis of material regarding exercise of jurisdiction under the Code of Criminal Procedure whether to take cognizance or not, and therefore, when such facts are emerging from the record, it is necessary and desirable that it should be left to the Court of Magistrate to decide whether to register the complaint or whether there is any sufficient material or not, and this Court may not exercise either extraordinary jurisdiction or inherent jurisdiction.
16. Learned APP Shri Jani again submitted that as observed by the Hon'ble Apex Court in a judgment reported in 2004) 7 SCC 768 - Gangadhar Janardan Mhatre v. State of Maharashtra and Others, the detail discussion has been made with regard to the scheme of the Criminal Procedure Code and it has been observed:
"13. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint / evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects ahve been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd.) v. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained."
He has further emphasized the observation:
"14. The inevitable conclusion is that the High Court's order does not suffer from any infirmity. The writ application was not the proper remedy, and without availing the remedy available under the Code, the appellant could not have approached the High Court by filing a writ application."
17. Again, learned APP Shri Jani has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2007) 6 SCC 171 - Aleque Padamsee and others v. Union of India and others and emphasize the observations made in paragraphs 6 to 8. Learned APP Shri Jani has submitted that the scheme - particularly Chapter 12 of the Code referring to the registration of the FIR under Section 154 has been discussed and it has been again reiterated the observations referring to the judgment of the Hon'ble Apex Court in case of Ramesh Kumari v. State (Delhi) and Ors. [supra].
18. Learned APP Shri Jani has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2009) 13 SCC 670 - Mahtab Singh and Another v. State of Uttar Pradesh. Leaned APP Shri Jani has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 6 SCC 394 - Bhaiyamiyan Alias Jardar Khan and Another v. State of Madhya Pradesh and also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 6 SCC 279 - A. Shankar v. State of Karnataka and emphasized the observations made in the judgment. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 11 SCC 687 - Prem Prakash Alias Lillu and another v. State of Haryana and has referred to the observations with regard to the similar facts for the offence under Section 376 IPC.
19. Learned APP Shri Jani has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in 2008 (2) G.L.H. 269 - Sakiri Vasu v. State of U.P. and Others and emphasize the observations:
"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. page 267):-
If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.
21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus, in ITO, Cannanore v. M.K.Mohammad Kunhi, AIR 1969 SC 430, this Court held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.
33. In secretary, Minor Irrigation & Rural Engineering Services U.P. and others v. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6), this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation."
20. In rejoinder, learned Senior Advocate Shri B.B.Naik has referred to the various judgments and submitted that the judgment of the Constitution Bench is binding and the other judgments which may not have considered the earlier judgments, are per incuriam.
21. Learned Senior Advocate Shri Naik has also referred to the further affidavit of the petitioner and the other documents to submit that the Advocate had visited though the same has been disputed and denied in the affidavit in reply filed by the Respondent State. He submitted that it reflects the attitude and the Advocate has visited the Petitioner in jail. Therefore, he has referred to the further affidavit with regard to the visit of learned Advocate Shri Ashish B. Desai.
22. Learned APP Shri H.L.Jani has stated that learned Advocate Shri Ashish B. Desai visited the accused in jail as it has been verified pursuant to the affidavit. He has stated that information was called from the jail authority and since the register for such Advocates and the other visitors is kept separately, the information was given on the basis of one register that the Advocate has not visited. However, since a separate register is maintained for the Advocate who had visited, it has been confirmed, and therefore, there is no quarrel on that issue. However, that does not make any change in the position with regard to the legal submissions.
23. In view of rival submissions, it is required to be considered whether the present petition can be entertained or not.2.
24. The main thrust of the submissions made by learned Sr. Counsel Shri BB Naik for the petitioner have been on sec. 154 of the Code of Criminal Procedure that when information regarding a cognizable offence is laid before the officer in-charge of the police station, he is bound to register it as an FIR without any inquiry and he has no discretion to even consider whether the allegations made are prima facie borne out or not.
25. However, before proceeding to examine these submissions, the background of the present case has to be borne in mind. On one hand, learned Sr. Counsel Shri Naik has made the submission that it is only to pressurize the petitioner and her father to compromise with regard to some other land at Rajkot the earlier FIR being C.R. No. I-5/2012 has been registered and she has been harassed for which she has sought to file the present complaint for the misdeeds while she was in custody including the offence of rape.
26. On the other hand, learned APP Shri Jani has made the submission that there are serious allegations in the FIR being C.R. No. I-5/2012 against the father as well as the present petitioner and the modus operandi for the alleged offence has also been highlighted that on the same day accounts are opened in the name of the present petitioner who is the daughter who claims to be an NRI and huge amount has been withdrawn without reference to other papers with regard to the land transaction and the society. There, it has a reference to the manipulation with record of the society and the entire society or the land is sought to be transacted inter-se among the family members by which huge amounts have been duped. It is in this background, when the investigation is made the petitioner has not co-operated and thereafter when she is arrested, such a complaint is filed for the misdeeds of the investigating officer or the police including the alleged offence of rape while in custody.
27. However, the learned APP has referred to in detail, as recorded hereinabove, various aspects which require consideration, inter alia, the delay in filing the complaint. Though the petitioner had an opportunity to disclose this offence or the misdeeds which have not been disclosed throughout the period either to her own mother when she was taken twice to her residence during the period of remand nor to the female doctors of the Civil Hospital who have examined her, nor to the doctor of the jail. Further, even at the time of production before the Magistrate who is a judicial officer, while granting the remand and/or subsequently when she has been remanded to the judicial custody, it has not been disclosed to the Magistrate about any such misdeeds or ill-treatment or harassment. The medical case papers admittedly do not disclose any injury and if, prima facie, the incident as alleged has occurred, not only physical but even the psychological condition would have been different which is not borne out from the medical case papers. Moreover, the petition was filed before the High Court for grant of bail and no such averments or disclosure is made therein.
28. Therefore, in light of these allegations and counter allegations and the conduct of the petitioner, it would not be desirable for this Court, in exercise of extra-ordinary jurisdiction under Art.
226 or 227 of the Constitution of India or the inherent jurisdiction under sec. 482 of CrPC to jump to any conclusion.
29. The submissions have been made at length with much emphasis on the case laws and the judicial pronouncements to emphasize that theHon'ble Apex Court in an earlier judgment in case of Ram Lal Narang v. State (Delhi Admn.), reported in AIR 1979 SC 1791, has made the observations in para 15 that it is the statutory right and duty to register every information relating to the commission of cognizable offence under sec. 154 of CrPC. Therefore, it has been emphasized that the subsequent judgments of Hon'ble Apex Court having taken a different view without reference to this judgment are per incuriam as there is no reference to this earlier judgment of the Hon'ble Apex Court in the case of Ram Lal Narang (supra).
30. Though the submissions have been made, the moot question which is required to be considered is whether there is any conflict in the two line of decisions. The focus in these judgments, that is, in case of Ram Lal Narang (supra) as well as the subsequent judgments in the cases of Gangadhar Janardan Mhatre v. State of Maharashtra, reported in (2004) 7 SCC 768, Aleque Padamsee and ors. v. Union of India and ors., reported in (2007) 6 SCC 171, and Sakiri Vasu v. State of U.P. And ors., reported in 2008(2) GLH 269, is different to the extent that the observations in Narang's case (supra) are with regard to interference or supervision by the court in the police investigation which is a field reserved to the police or the investigating agency, whereas, the judgments in cases of Aleque Padamsee (supra), Gangadhar Mhatre (supra) and Sakiri Vasu (supra) refer to the modalities and the remedies to be pursued or the recourse which one can have under the CrPC when the complaint has not been registered as an FIR under sec. 154 of CrPC..
31. In any event, as per the settled law regarding the precedent under Art. 141, both the sets of judgments would be binding to this Court and the earlier judgment in the case of Ram Lal Narang (supra) as well as the later judgments of the Hon'ble Apex Court in cases of Gangadhar Mhatre (supra), Aleque Padamsee (supra) and Sakiri Vasu (supra) are required to be considered. It is required to be mentioned that as observed in the judgment in Gangadhar Mhatre's case (supra) as well as Aleque Padamsee's case (supra) the Hon'ble Apex Court has clearly observed that this very issue as to what are the modalities open to the aggrieved person when the FIR is not registered under sec. 154 of CrPC has been focused. The Hon'ble Apex Court has made the observation in the case of Gangadhar Mhatre (supra). The Hon'ble Apex Court has referred to the same issue and it has been observed in in para 13;
“13. When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and others (1997) Supreme Court Cases (Crl) 303. It was specifically observed that a writ petition in such cases is not to be entertained."
32. The same view has been subsequently reiterated in another judgment of the Hon'ble Apex Court in the case of Aleque Padamsee and ors., v. Union of India and ors., reported in (2007) 6 SCC 171. In this judgment, the very issue has been addressed and the Hon'ble Apex Court referring to sec. 154 of CrPC focusing on the same issue as to the registration of the FIR under sec. 154 has discussed, and if it is not registered, what could be the recourse available to the complainant. It has been observed that when the information is laid with the police and no action in that regard is taken, the complainant can under sec. 190 read with sec. 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and it has been discussed as to how the matter would proceed as provided in the CrPC. The Hon'ble Apex Court has observed in this judgment;
“These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and Others [(1996) 11 SCC 582]. It was specifically observed that a writ petition in such cases is not to be entertained.
6. The above position was again highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra [(2004) 7 SCC 768], Minu Kumari and Another v. State of Bihar and Others [(2006) 4 SCC 359] and Hari Singh v. State of U.P. (2006 (5) SCC 733).
7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences's case (supra) and reiterated in Gangadhar's case (supra) the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumari's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable of fence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was reiterated in Lallan Chaudhary and Ors. v.
State of Bihar (AIR 2006 SC 3376). The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra). The correct position in law, there fore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code.”
33. It is required to be mentioned that the judgment of the Hon'ble Apex Court in case of Ramesh Kumari v. State (NCT of Delhi) [ (2006) 2 SCC 677], which has also been pressed in service by learned Sr. Counsel Shri Naik with the observations made therein that the availability of alternative remedy or pendency of the contempt petition would be no substitute in law not to register the case has to be read in context and background of the facts.
34. Further, the case in Ramesh Kumari (supra) has been considered in the later judgment of the Hon'ble Apex Court in the case of Aleque Padamsee (supra) which has been quoted hereinabove. It is specifically observed and reiterated that Ramesh Kumari's case (supra) related to the action required to be taken by the police when a cognizable offence is brought to its notice, whereas in that case the basic issue did not relate to the methodology to be adopted which was expressly dealt with by the Hon'ble Apex Court in the case of All India Institute of Medical Sciences Employees' Union (supra) and subsequently in Gangadhar Mhatre's case (supra). Thus, the focus in these later judgments have been very specific and the same has been focused in the judgment in the case of Aleque Padamsee (supra) which has been referred to and quoted hereinabove. Therefore, it refers to different situations. Ramesh Kumari's case (supra) refers to the action which is required to be taken and the later judgments refer to the modalities or the recourse which can be had thereafter if the complaint has not been registerd as an FIR under sec. 154 of CrPC.
35. Referring to the judgment of the Hon'ble Apex Court in the case of State of Haryana and ors. v. Bhajan Lal and ors., reported in 1992 Supp (1) SCC 335 which has been quoted referring to sec. 154, it is required to be mentioned and examined with a close look at the discussion on sec. 154 and it refers to the mandatory nature of sec. 154 and also the fact that the police office in-charge of the police station is obliged to register a case and then to proceed with the investigation subject to the provisions of sec. 157 and 156. In this judgment it has been clearly stated and observed that if the police officer in-charge of the police station refuses to exercise the jurisdiction vested in him and register the case on information of cognizable offence and violates the statutory right, the person aggrieved can send the substance to the higher authority who, in turn, as observed, “if satisfied” that the information forwarded to him discloses a cognizable offence, can investigate the case himself or direct the investigation to be made by a subordinate officer. In other words, it makes it clear that before registration of the FIR, an officer should be satisfied. If the facts are such which require some inquiry for the satisfaction about the charges or allegations made in the FIR he may have entertained a reasonable belief or doubt, then he may make some inquiry. Therefore, the expression “reason to suspect the commission of an offence” would mean that commission of a cognizable offence based on the facts mentioned has to be considered with the attending circumstances, though the same may not amount to proof. It can be, therefore, understood in both the ways, that the officer may suspect about commission of the offence in order to proceed further and he may also have reservation for suspecting the commission of the offence. Again, such “reason to suspect” or doubt has to be considered in background of the facts.
36. In the judgment in case of Bhajan Lal (supra) the Hon'ble Apex Court has quoted referring to the earlier judgment in the case of State of Gujarat v. Mohanlal J. Porwal, reported in AIR 1987 SC 1321, about reasonable belief;
"Whether or not the officer concerned had entertained reasonable belief under the circumstances is not a matter which can be placed under legal microscope, with an over indulgent eye which sees no evil anywhere within the range of its eyesight. The circumstances have to be viewed from the experienced eye of the officer who is well equipped to interpret the suspicious circumstances and to form a reasonable belief in the light of the said circumstances."
37. In other words, if the facts are such which require some inquiry for the satisfaction about the charges or allegations made in the FIR, then it could be made. The learned Sr. Counsel has also submitted that for the purpose of investigation by CBI there is a specific provision empowering such an jnquiry. However, it is also required to be noted that the Police Manual also refers to such aspects as relied upon by learned APP Shri Jani. He has particularly referred to Rules 124, 126 and 467(5).
38. The emphasis which has been given referring to sec. 154 and the observations made in the judgment in case of Bhajan Lal (supra) that the expression “information has been used without any qualifying words like credible information” etc. also has to be read in context of the language of sec. 154 and the judgment of the Hon'ble Apex Court in case of Bhajan Lal (supra). It has been observed;
“We shall now examine as to what are the requirements to be satisfied by an Officer in charge of a police station before he enters into the realm of investigation of a cognizable offence after the stage of registration of the offence under Section
154(1). We have already found that the police have under Section 154(1) of the Code a statutory duty to register a cognizable offence and thereafter rider Section 156(1) a statutory right to investigate any cognizable case without requiring sanction of a Magistrate. However, the said statutory right to investigate a cognizable offence is subject to the fulfillment of prerequisite condition, contemplated in Section 157(1). The condition is that the officer in charge of a police station before Proceeding to investigate the facts and circumstances of the case should have "reason to suspect" the commission of an offence which he is empowered under Section 156 to investigate ”
39. Further, referring to the judgment in the case of State of West Bengal v. Swapan Kumar Guha, reported in AIR 1982 SC 949, the Hon'ble Apex Court has made observations referring to sec. 157;
"the position which emerges from these decisions and the other decisions which are discussed by brother A. N. Sen is that the condition precedent to the commencement of investigation under Section 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of enquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F. I. R., prima facie, discloses the commission of such offence."
40. This itself would suggest that the satisfaction has to be prima facie reached by the police officer which may require examination of some material prima facie. The underlying object being that in such cases if the allegations or wild allegations in the complaint are accepted and registered as FIR without any material or without examination of any supporting material prima facie would lead to undesirable effect of affecting the liberty and the rights of others.
41. Therefore, a person should not be prejudiced qua the personal liberty by granting such powers to register the offence and also to investigate into the same. It is in this background the scheme of CrPC has provided that in case of refusal by the police officer to register the offence the magistrate is kept in picture as provided in Chapter XII of the Code who would right from inception inquire and may observe the investigation till the conclusion of the investigation supervising such investigation, taking care of the rival claims and balance of interest would be maintained. Therefore, it is desirable and necessary in such cases like the present one that this Court would not be justified in exercising the discretion as sought to be canvassed.
42. The Hon'ble Apex Court in its judgment reported in 2008(2) GLH 269 in case of Sakiri Vasu v. Sate of U.P. and ors., has made the observation;
“18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statue, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation....
20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein.”
43. The Hon'ble Apex Court has made a reference to similar such provisions and situation in context of other statutes like the Income-tax Act and also sec. 156(3), 154 of the CrPC. In this very judgment it has been observed;
“25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover, he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?”
44. It is also considered that though the alternative remedy is not an absolute bar to a writ petition, but it has been observed that it is equally well-settled that if there is an alternative remedy, the High Court should not ordinarily interfere. In other words, it has been made clear that though alternative remedy may not be an absolute bar but the exercise of discretion would not be ordinarily justified and therefore it refers to a matter of propriety for exercise of extra-ordinary jurisdiction under Art.
226 & 227 of the Constitution of India or the inherent jurisdiction under sec. 482 of CrPC rather than total lack of jurisdiction. There may not be a lack of jurisdiction, meaning thereby there is a discretion, but whether the exercise of discretion as stated above would be justified has to be considered.
45. A useful reference can also be made to the Constitution Bench judgment of the Hon'ble Apex Court in the case of State of West Bengal and ors., v. Committee for Protection of Democratic Rights, West Bengal and ors., reported in (2010) 3 SCC 571, with regard to investigation by the CBI and it has been observed in para 70;
“70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serous cases and in the process lose its credibility and purpose with unsatisfactory investigations.”
46. A reference Is made to another judgment of the Hon'ble Apex Court in the case of Minor Irrigation & Rural Engg. Services, U.P.
v. Sahngoo Ram Arya [(2002) 5 SCC 521].
47. Therefore, in light of these judgments, this Court is not inclined to exercise the discretion, particularly in background of the facts as recorded hereinabove.
48. It is required to be noted that learned Sr. Counsel Shri Naik has also made submissions referring to the law of precedent at length, referring to various judgments including the observations made by the Hon'ble Apex Court in the judgment in case of Siddharam Satlingappa Mhetre v. State of Maharashtra and ors., reported in (2011) 1 SCC 694, where the Hon'ble Apex Court has also made the observation that where the judgment of the Constitution Bench is not considred in a subsequent judgment, it may not be binding. However, the observations which have been made referring to the settled case law on an issue regarding bail and anticipatory bail was the same, whereas in the facts of the present case, as already observed hereinabove referring to the observations of the Hon'ble Apex Court in its judgment in the case of Aleque Padamsee (supra) that for the first time the issue with regard to the methodology to be adopted where the FIR is not registered was addressed in All India Institute of Medical Sciences's case (supra), Gangadhar Mhatre's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). There is also a reference to the case of Ramesh Kumari's case (supra), meaning thereby, the earlier judgments including the observations made by the Hon'ble Apex Court in the case of Bhajan Lal (supra) has a reference to the scheme of CrPC and the registration of the FIR when the information disclosing cognizable offence is made or laid before the police officer. However, this another set of the judgments have focused on the issue where, because of the information which may not be disclosing prima facie cognizable offence and the officer is not satisfied and he refuses to register the offence, what would be the course available has been discussed and dealt with. Therefore, it has a reference to a situation where there is some amount of reservation by the police officer who is not satisfied about the information and the registration of the FIR is not made under sec. 154 of CrPC. Therefore, having regard to the scheme of the CrPC, there is a detailed discussion about the course to be adopted as observed in the judgment in the case of Aleque Padamsee (supra) as well as Sakiri Vasu (supra) and also Gangadhar Mhatre (supra). The focus on the issue involved has a difference and therefore the observations which have been emphasised by learned Sr. Counsel Shri Naik has to be considered in background of the aforesaid aspects as well as the facts involved in the matter. It is well-settled that the statement or the judgment has to be read in context of the facts and the background.
49. Another facet of the submissions which have been much emphasised at great length referring to the precedent and binding nature of the observations made by the Hon'ble Apex Court in the cases of Ram Lal Narang (supra) as well as Bhajan Lal (supra) referring to sec. 154 that all other judgments are per incuriam cannot be accepted. Learned Sr. Counsel Mr. Naik has referred to and relied upon series of judgments including the judgments reported in case of Madhya Pradesh Rural Road Development Authority and anr., v. L.G. Chaudhary Engineers and Contractors, reported in (2012) 3 SCC 495, Siddharam Satlingappa Mhetre v. State of Maharashtra and ors., reported in (2011) 1 SCC 694, Official Liquidator v. Dayanand and ors., reported in (2008) 10 SCC 1, State of Madhya Pradesh v. Narmada Bachao Andolan and anr., (2011) 7 SCC 639. It is required to be mentioned that the judgment of the earlier Bench as well as other judgments of the Hon'ble Apex Court relied upon by learned Sr. Counsel Shri Naik including the judgment in case of Ramesh Kumari (supra) is referring to sec.
154 and there is a further issue as to the modalities or the procedure when the FIR is not registered by the concerned police officer having not been satisfied prima facie about the facts disclosed for a cognizable offence. It is at that stage these judgments have further laid guidelines elaborating on the scheme of CrPC with regard to the remedies available to the petitioner or the person concerned.
50. In fact, the judgment of the Hon'ble Apex Court in Ramesh Kumari's case (supra) has been specifically considered in a subsequent judgment, as discussed above, in Aleque Padamsee's case (supra) as well as in Gangadhar Mhatre's case (supra). It is also required to be mentioned that both the judgments in cases of Ram Lal Narang (supra) as well as Ramesh Kumari (supra) are by a Bench of the Hon'ble Apex Court consisting of two Hon'ble Judges, whereas the judgment in the case of Aleque Padamsee (supra) is by a Bench of the Hon'ble Apex Court consisting of three Hon'ble Judges and has specifically referred to the judgment in case of Ramesh Kumari (supra) as discussed hereinabove with pointed focus on the basic issues addressed in Ramesh Kumari's case (supra) and the subsequent judgment with a different angle or aspect regarding sec. 154 of CrPC. The later judgments have a reference to the recourse available when the police does not carryout the requirement under sec. 154 which was not an issue directly addressed in Ramesh Kumari's case (supra) or even in case of Ram Lal Narang (supra). The judgment in case of Ram Lal Narang (supra) has, though referred to sec. 154, it has been mainly focusing on whether the investigation is barred or not and also the provisions of sec. 154 for registration of the FIR. However, it is the procedure to be followed ordinarily, but what could be the consequences or methodology or recourse available if the FIR is not registered under sec. 154 is addressed in the later judgments. Further, it is well-accepted that a pronouncement or judgment of the Hon'ble Apex Court is on an authority for what issue or the point it is actually decided and therefore it has to be read in context of the facts and the issue involved.
51. A useful reference can also be made to the judgment of the Hon'ble Apex Court in the case of Popular Muthiah v. State (represented by Inspector of Police), reported in (2006) 7 SCC 296, wherein it has been observed;
“The Code of Criminal Procedure is an exhaustive code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court as would be evident from the following...” The various stages have been referred.”
52. Therefore, when the statue has provided a power or discretion which obliges an officer concerned in exercise of such discretion to satisfy himself, it would necessarily mean that he may examine the material prima facie whether the allegations have some substance in it or not as observed by the Hon'ble Apex Court in its judgment in thecase of Sakiri Vasu (supra).
53. A useful reference can also be made to the observations omade by the Hon'ble Apex Court in the case of Rajinder Singh Katoch v. Chandigarh Admn. and ors., reported in (2007) 10 SCC 69, wherein this very issue has been specifically considered;
“Although the officer in charge of a police station is legally bound to register a first information report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them give rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned, the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not...” (emphasis supplied)
54. Therefore, as discussed hereinabove, without expressing any opinion, it would not be desirable to come to any conclusion by this Court in exercise of extra-ordinary jurisdiction under Art.
226 and 227 of the Constitution of India or the inherent jurisdiction under sec. 482 of CrPC. The recourse to the remedy as provided by the CrPC can be pursued and the Court of Magistrate, on the basis of material which may be collected during the course of investigation, may examine where the petitioner may also assist the court with regard to the material placed on record so that the magistrate can come to a conclusion whether cognizance could betaken or not. This would offer an equal opportunity to both the sides based on the material and evidence.
55. It is in these circumstances the present petition cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Notice discharged.
(Rajesh H. Shukla, J.) (jayanti/hn)