Padamsee and Ors Vs. Union of
India and Ors
 Insc 743 (18 July 2007)
Dr. ARIJIT PASAYAT P.K. BALASUBRAMANYAN & D.K. JAIN
Dr. ARIJIT PASAYAT, J.
1. These petitions are filed under Article 32 of the Constitution of India,
1950 (in short the 'Constitution'). The petitioners have stated that they have
approached this Court because of inaction of official respondents in not acting
on the report lodged by two persons namely, Sumesh Ramji Jadhav and Suresh
Murlidhar Bosle. The basic grievance is that though commission of offences
punishable under the Indian Penal Code, 1860 (in short the 'IPC') was
disclosed, the police officials did not register the FIR and, therefore,
directions should be given to register the cases and wherever necessary accord sanction
in terms of Section 196 of the Code of Criminal Procedure, 1973 (in short the
'Code'). It is stated that the speeches made by respondents 5 and 6 were likely
to disturb the communal harmony in the country and the likely result of such
inflammatory speeches was to create hatred in the minds of citizens against the
persons belonging to minority communities. It appears that so far as respondent
No.5 is concerned a complaint was lodged at the police station in the State of Maharashtra
where the complainants reside. Since the police authorities in Maharashtra
found that the alleged speeches were delivered outside the State of Maharashtra
and inside the State of Gujarat, they took up the position that action could be
taken by the authorities in Gujarat.
Accordingly, the report lodged was sent to the officials in Gujarat. So far
as respondent No.6 is concerned sanction in terms of Section 196 of the Code
was prayed for alleging that there was complete inaction and, therefore, the
writ petition has been filed. It was pointed out by learned counsel for the
petitioners that since undisputedly, the commission of cognizable offence is
disclosed even on a bare reading of the FIR lodged, the authorities were not
justified in not registering the FIR. It is contended that the partisan
approach of the authorities in the State of Gujarat is writ large, which is
evident from a bare reading of the counter affidavit filed. The role which is
to be played by the investigating agency and finally the court has been assumed
by the authorities who were not competent to deal with the matter. It is
pointed out that in Ramesh Kumari v. State (NCT of Delhi) and Ors. (AIR 2006 SC
1322) this Court had said that whenever cognizable offence is disclosed the
police officials are bound to register the same and in case it is not done,
directions to register the same can be given.
2. Learned counsel appearing for respondent No.5 and the State of Gujarat
submitted that on a bare reading of the complaint lodged it appears that no
offence was made out and whenever a complaint is lodged automatically and in a
routine manner FIR is not to be registered. In any event, it is submitted that
petition under Article 32 of the Constitution is not a proper remedy.
3. Chapter XII of Code relates to "Information to the Police and their
Powers to Investigate". Section 154 reads as follows:
Information in cognizable cases.(1) Every information relating to the
commission of a cognizable offence, if given orally to an officer in charge of
a police station, shall be reduced to writing by him or under his direction,
and be read over to the informant; and every such information, whether given in
writing or reduced to writing as aforesaid, shall be signed by the person
giving it, and the substance thereof shall be entered in a book to be kept by
such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be
given forthwith, free of cost, to the informant.
(3) Any person, aggrieved by a refusal on the part of an officer in charge
of a police station to record the information referred to in sub-section (1)
may send the substance of such information, in writing and by post, to the
Superintendent of Police concerned who, if satisfied that such information
discloses the commission of a cognizable offence, shall either investigate the
case himself or direct an investigation to be made by any police officer
subordinate to him, in the manner provided by this Code, and such officer shall
have all the powers of an officer in charge of the police station in relation
to that offence".
4. Section 156 deals with "Police officer's power to investigate
cognizable cases" and the same reads as follows:
(1) Any officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a Court having jurisdiction
over the local area within the limits of such station would have power to
inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be
called in question on the ground that the case was one which such officer was
not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an
investigation as above- mentioned.
5. When the information is laid with the police, but no action in that
behalf is taken, the complainant can under Section 190 read with Section 200 of
the Code 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 could 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 [(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)
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
re-iterated 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 offence 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 re- iterated 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, therefore, 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 Sections 190 read with Section 200 of the Code. It appears
that in the present case initially the case was tagged by order dated 24.2.2003
with WP(C) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were
de-linked from the aforesaid writ petitions.
8. The writ petitions are finally disposed of with the following directions:
(1) If any person is aggrieved by the inaction of the police officials in
registering the FIR, the modalities contained in Section 190 read with Section
200 of the Code are to be adopted and observed.
(2) It is open to any person aggrieved by the inaction of the police
officials to adopt the remedy in terms of the aforesaid provisions.
(3) So far as non-grant of sanction aspect is concerned, it is for the
concerned government to deal with the prayer. The concerned government would do
well to deal with the matter within three months from the date of receipt of
(4) We make it clear that we have not expressed any opinion on the merits of