JUDGMENT
V.S. Aggarwal, J.
1. Mrs. Pushpa Devi (since deceased) had filed the
present petition under Article 226 of the Constitution
of India read with Section 482 of the Code of Criminal
Procedure seeking a direction for registration of a
case under Section 302 Indian Penal Code read with
Section 120B of the said Code for the murder of the
son of the petitioner and for seeking a direction to
Central Bureau of Investigation to investigate.
2. Ram Babu Sharma was the constable on duty at the
residence of Deputy Commission of Police. it is
alleged that his duty of 5th April, 1999 was from 8.00
PM to 8.00 AM of 6th April, 1999. On 6th April, 1999
Ram Babu Sharma was found injured/wounded in Children
Park, India Gate which is stated to be 300 to 400
yards from the residence of the place where he was on
duty. Some persons saw Ram Babu in an injured
condition and one of them informed the watchman Hari
Ram and the police control room van standing nearby.
He was removed to Ram Manohar Lohia Hospital. The
family of Ram Babu was also informed. Ram Babu Sharma
it is stated was not in a position to speak and by
8.10 AM he was declared to be dead. Petitioner
contends foul play and her assertion is that it is not
a case of suicide rather it is a case where deceased
Ram Babu had been fatally wounded and therefore by
virtue of the present petition it is prayed that
respondents should be directed to register First
Information Report already referred to above and for
transfer of the investigation to an independent
agency.
3. During the pendency of the petition Mrs. Pushpa
Devi and died and the father of the deceased Ghanshyam
Das was transposed as the petitioner.
4. The respondent has submitted the reply and
pointed that on 6th April, 1999 in pursuance of the
receipt of daily dairy No. 36-A at 6.20 AM Sub
Inspector Ram Niwas and Constable Sanjeev Kumar
reached Children Park. They had found lost of blood
and two empty cartridges at the spot. On enquiries
Sub Inspector came to know that injured has already
been taken to Ram Manohar Lohia hospital by the police
control room van. The officer in charge of the police
station Tilak Marg along with other members of the
staff reached the hospital. It was found that injured
Ram Babu was undergoing treatment in emergency ward.
Sub Inspector Ram Niwas collected Medico Legal Report
at 6.55 AM. Ram Babu, Constable was declared dead at
8.10 AM. Thereupon the site was re-visited by the
police officers. The blood earth stained earth was
picked up, two empty cartridges were also picked up
from the spot along with 18 live cartridges. The
members of the family of the deceased had been
informed and inquest proceedings had been drawn.
5. It has further been asserted that Dr. G.K.
Sharma, Professor and Head of the Department of
Forensic Medicines in Smt. Sucheta Kriplani Hospital
conducted the postmortem. In the opinion of doctor
death could have been caused by “Coranio Cerebral
damage as a result of fire-arm injury”. Statement of
other members who could throw light on the accident
was recorded. None of the statement gave substantial
information as to the cause, attempt, motive of
sequence of the events leading to the death of Ram
Babu Sharma. Since it was not possible to reach the
conclusion the matter was discussed and inquest was
kept pending. However, Dr. G.K. Sharma based his
subsequent opinion on circumstantial evidence, type of
fire arm used and its location on the same. He
concluded that all the aforesaid factors are
consistent with likely suicidal attempt by the
individual concerned. The father of the deceased had
complained to the Commissioner of Police who
transferred the enquiry to Crime Branch. Accordingly,
all relevant papers with Tilak Marg Police Station
were handed over to Sub Inspector Jitender of Special
Crime team. The crime branch conduced a thorough
enquiry. During discussion the Commissioner of Police
raised certain queries. A detailed note based on
circumstantial evidence and scientific evidence had
come on record and it was agreed that it was a case of
suicide. It has been mentioned further that FSL
Malviya Nagar had re-enacted the scene of incident
before the report was finalized.
6. The short question that comes up for
consideration which is subject matter for
consideration is as to whether in the facts of the
case the court should direct registration of the First
Information Report and transfer the investigation to
any other independent agency or not.
7. On behalf of the petitioner it was vehemently
contended that the petitioners were apprehending
certain facts or in other words foul play. They
contend that Ram Babu had been murdered and therefore
First Information Report should be recorded and
further keeping in view the nature of the reply filed
on behalf of the respondent it is prayed that
investigation be handed over to the Central Bureau of
Investigation. The leaned counsel for the State with
equal vehemence contended that the petitioners have
been complaining and meeting the Commissioner of
Police were heard and looked into and it was found
that it was a case of suicide and therefore there was
no ground for further investigation.
8. Section 154 of the Code of Criminal Procedure in
its stark brevity cast a duty on the concerned police
station to record the First Information Report when it
discloses a cognizable offence. When complaint is
made with respect to a cognizable offence the
information can be given orally or in writing. The
same has to be reduced into writing. Certain
exceptions have also creped in.
9. The Supreme Court in the case of State of
Haryana and Ors. v. Bhajan Lal had gone into this controversy and in unqualified
terms drew a distinction as to what would be a
reasonable report and credible information, it was
ultimately concluded and law laid down that if
information disclosed is a cognizable offence the
police officer should record the First Information
Report. The relevant law in this regard as referred
to above reads:-
“32. Be it noted that in Section 154(1) of the
Code, the legislature in its collective wisdom
has carefully and cautiously used the
expression “information” without qualifying the
same as in Section 41(1)(a) or (g) of the code
wherein the expressions, “reasonable complaint”
and “credible information” are used.
Evidently, the non-qualification of the word
“information” in Section 154(1) unlike in
Section 41(1)(a) and (g) of the Code may be for
the reason that the police officer should not
refuse to record an information relating to the
commission of a cognizable offence and to
register a case thereon on the ground that he
is not satisfied with the reasonableness or
credibility of the information. In other
words, ‘reasonableness’ or credibility of the
said information is not a condition precedent
for registration of a case. A comparison of
the present Section 154 with those of the
earlier Codes will indicate that the
legislature had purposely thought it fit to
employ only the word “information” without
qualifying the said word. Section 139 of the
Code of Criminal Procedure of 1861 (Act 25 of
1961) passed by the Legislative Council of
India read that ‘every complaint or
information’ preferred to an officer in charge
of a police station should be reduced into
writing which provision was subsequently
modified by Section 112 of the Code of 1872
(Act 10 of 1872) which thereafter read that
‘every complaint’ preferred to an officer in
charge of a police station shall be reduced in
writing. The word ‘complaint’ which occurred
in previous two Codes of 1861 and 1872 was
deleted and in that place the word
‘information’ was used in the Codes of 1882 and
1898 which word is now used in Sections 154,
155, 157 and 190(c) of the present Code of 1973
(Act 2 of 1974). An overall reading of all the
Codes makes it clear that the condition which
is sine qua non for recording a first
information report is that there must be an
information and that information must disclose
a cognizable offence.
33. It is, therefore, manifestly clear that
if any information disclosing a cognizable
offence is laid before an officer in charge of
a police station satisfying the requirements of
Section 154(1) of the Code, the said police
officer has no other option except to enter the
substance thereof in the prescribed form, that
is to say, to register a case on the basis of
such information.”
10. It is true that in the later part of the
judgment the Supreme Court had gone ahead and referred
to certain preliminary investigation not like an
enquiry or regular investigation in certain cases.
The same is not relevant at this stage. A Division
Bench of this court in the case of Satish Kumar Goel
v. State and ors. 2000 II AD (Delhi 841 has also gone
into the same controversy and the legal position
therefore was enunciated to be:
“15. Thus, the legal position appears to be
that where allegations made in the complaint
lodged before the police clearly and
specifically disclose commission of a
cognizable offence, the officer in charge of the
concerned police station is duty bound to
register an FIR. However, where the
information recorded in the complaint is
uncertain, indistinct and not clearly expressed
which creates a doubt as to whether the
information laid before the in charge of the
police station discloses commission of a
cognizable offence there from, some enquiry
should proceed before the registration of an
FIR.”
11. More recently the Supreme Court in the case of
All India Institute of Medical Sciences Employees
Union v. Union of India (1996) II SCC 582 also dealt
with the same controversy. A similar request had been
made for registration of first information report
against the Director of All India Institute of Medical
Sciences for the offence punishable under Section 409
Indian Penal Code. The Supreme Court keeping in view
the said controversy held:-
“4. 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 the 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.
5. In this case, the petitioner had not
adopted either of the procedure provided under
the Code. As a consequence, without availing
of the above procedure, the petitioner is not
entitled to approach the High Court by filing a
writ petition and seeking a direction to
conduct an investigation by the CBI which is
not required to investigate into all or every
offence. The High Court, therefore, though for
different reasons, was justified in refusing to
grant the relief as sought for.”
12. Another Division Bench of this court in Criminal
Writ No. 1162/2001 decided on 24th January, 2002 once
again went ahead with the same controversy and held:-
“22. From the aforesaid precedents it is clear
that following conclusions can conveniently be
drawn: (i) whenever it is brought in writing
or otherwise that a cognizable offence has been
committed in terms of the decisions in the case
of Bhajan Lal (supra) a First Information
Report should be recorded (ii) If the
information given is not clear or creates a
doubt as to whether it discloses a commission
of a cognizable offence some enquiry can
precede before registration of the offence.
(iii) in case of a complaint of such nature
made against public servants it is doubtful or
similarly if it is found that ex facie there is
some un-truth in the same, an enquiry can be
conducted before registration of the case (iv)
the enquiry need not partake that of an
investigation. It only is a preliminary
enquiry that can be held.”
13. From the aforesaid it is clear that if the
information is not clear or creates a doubt as to
whether it discloses commission of cognizable offence
or complaint is of such a nature particularly of
doubtful nature that some enquiry should be held in
that event some preliminary enquiry can take place but
it will not part-take that of an investigation. The
decision in the case of Bhajan Lal (supra) normally
would be adhered to.
14. During the course of submissions our attention
has been drawn to certain facts by either side. We
deem it unnecessary to invoice the court into this
controversy because it is basically a matter to be
gone into by the investigating agency. However, it
was pointed that in the medical report prepared by a
junior resident doctor following injuries had been
found on the person of the deceased:-
“Clean lacerated wound approximately 5 cm at
Right side of the Forehead near Right eye brow
with…..
Clean lacerated wound approximately 5 cm at
Right Side of left side of forehead in front of
left Pinna
Nose Bleed ++
Ear Bleed++
Dropping Eye Bal….
Swelling at underside of scalp
?? fire Arm injury”
15. It was urged that in suicide attempt a person
would not be able to shoot on two sides of his
forehead. These are matters to be looked into by the
investigating agency but in the peculiar facts it
appears that keeping in view the nature of the
complaint, the first information report could well
have been recorded because even if some preliminary
enquiry was to take place it should not have partake
that of further investigation. At this stage,
therefore, we deem it unnecessary to go further into
the same but direct that (a) on basis of the complaint
of the petitioner addressed to the Commissioner of
Police, a First Information Report should be recorded
at the concerned police station. We further direct
that (b) since Delhi Police had already, as pointed in
the reply, come to a conclusion and the first
information report is being recorded, at this stage
investigation should be handed over to the Central
Bureau of Investigation (c) by way of abundant caution
nothing said herein should be taken as any expression
of opinion on the merits of the matter (d) the record
of the enquiry shall be handed over to Central Bureau
of Investigation.