Chaudhary & Ors Vs. State of Bihar & Anr  Insc 647 (12 October 2006)
APPEAL NO. 1047 OF 2006 Arising out of SPECIAL LEAVE PETITION (CRL.) NO. 620 OF
appeal is preferred by the accused, nine in numbers, against the judgment and
order dated 8.10.2002 passed by the High Court whereby the High Court directed
the concerned Magistrate to proceed in the matter in accordance with law as
contained in Section 209 of the Code of Criminal Procedure.
have heard learned counsel for the appellant as well as the learned public
prosecutor for the State.
controversy involved in this appeal is in short compass being purely a question
of law and it may not be necessary to recite the entire facts leading to the
filing of the present appeal.
Case No. 223C/1996 was filed before the Sub- Divisional Judicial Magistrate, Sikrahana
at Motihari, District East Champaran by Yogendra Prasad - the respondent
herein, to the effect that on 7.6.1996 at about 6.00 PM the accused Lalan Chaudhary,
Din Bandhu Chaudhary, Sanjeev Kumar @ Ghutan, Lalbabu Prasad, Bhola Shah, Nageshwar
Shah, Bhagrit Raut, Joka Majhi and Suruj Raut having formed unlawful assembly
and armed with Lathi, Fatta, Farsa, Nalkatwa and Rifle, illegally entered in
the residential house of the complainant and indulged in 'Loot-Paat' of
household articles and also teased female members of the family. When the
complainant objected to the accused, the accused persons gave severe beating
with slaps, fists and fatta and caused bodily injuries to the appellant. The
complaint further disclosed that the accused looted away the household articles
comprising utensils, gold articles, silver articles, wearing apparels etc.
including cash. The total value of the loot was Rs. 19,000/-, as detailed in
the complaint. In the said complaint case itself, filed before the
Sub-Divisional Judicial Magistrate, the offences under Sections 147, 148, 149,
448, 452, 323 and 395 were disclosed.
appears that the Sub-Divisional Judicial Magistrate, before whom the complaint
was lodged, had endorsed the complaint to the SHO, Police Station Ghorasahan, District
East Champaran to register an FIR and to investigate. The SHO of the concerned
Police Station, however, registered the case under Sections 452/380/323/34 IPC
against the accused. Ultimately, the charge-sheet was submitted by the Police
only under Sections 452/323/34 IPC. It would, therefore, clearly appear that no
case was registered against the accused for offences disclosed in the complaint
under Sections 147, 148, 149, 448 and 395 IPC and no investigation was carried
out by the Police in respect of the aforesaid sections of law and committed
grave miscarriage of justice.
154 Cr.P.C. reads:
Information in cognizable cases.
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.
copy of the information as recorded under sub- section (1) shall be given
forthwith, free of cost, to the informant.
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." Section 154 of the Code thus casts a statutory duty upon
police officer to register the case, as disclosed in the complaint, and then to
proceed with the investigation. The mandate of Section 154 is manifestly clear
that if any information disclosing a cognizable offence is laid before an
officer in charge of a police station, such police officer has no other option
except to register the case on the basis of such information.
case of Ramesh Kumari v. State (NCT of Delhi) and Ors. (2006) 2 SCC 677 this
Court has held that the provision of Section 154 is mandatory. Hence, the
police officer concerned is duty-bound to register the case on receiving
information disclosing cognizable offence.
or credibility of the information is not a condition precedent for registration
of a case. That can only be considered after registration of the case.
mandate of Section 154 of the Code is that at the stage of registration of a
crime or a case on the basis of the information disclosing a cognizable
offence, 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 relevant or credible. In other words, reliability, genuineness and
credibility of the information are not the conditions precedent for registering
a case under Section 154 of the Code.
present case, undisputedly, the cognizable offences disclosed in the complaint,
were under Sections 147, 148, 149, 448, 452, 323 and 395 IPC. The complaint was
filed before the Sub-Divisional Judicial Magistrate and the same was endorsed
to SHO of concerned Police Station for registering the FIR under Section 154 of
the Code. The concerned SHO of the Police Station registered the case only
under Sections 452/380/323/34 IPC. Section 395 IPC, which had been disclosed in
the complaint, was excluded from the purview of the FIR and resultantly no
investigation was carried out by the Police in terms of Section 156 and 157 of
the Code of Criminal Procedure. It is well settled principle of law that in
criminal trial, investigation is proceeded by an FIR on the basis of written
complaint or otherwise disclosing the offence said to have been committed by
the accused. In the present case, a grave miscarriage of justice has been
committed by the SHO of concerned Police Station by not registering an FIR on
the basis of offence disclosed in the complaint petition. The concerned police
officer is statutorily obliged to register the case on the basis of the offence
disclosed in the complaint petition and proceed with investigation in terms of
procedure contained under Sections 156 and 157 of the Code. The FIR registered
by the Police would clearly disclose that the complaint for offence under
Section 395 IPC has been deliberately omitted and, therefore, no investigation,
whatsoever, was conducted for the offence under Section 395 IPC.
unfortunate that the Trial Magistrate has failed to notice that in the
complaint filed before the Sub-Divisional Judicial Magistrate an offence under
Section 395 IPC has been disclosed, amongst others. The Trial Magistrate
accepted the charge framed under Sections 452/323/34 IPC mechanically without
application of mind. The District and Sessions Judge also failed to take notice
the miscarriage of justice by the Trial Judge. It is, in these circumstances
that the High Court has, in our view, justly corrected the error committed by
two Courts. In our view, therefore, the impugned order of the High Court does
not suffer from any infirmities.
Ray, learned counsel appearing for the appellant contended that the complainant
has not challenged the charges framed under Sections 452/323/34 IPC. It is also
contended that the appellants are facing criminal trial for the last 14 years
and if the committal proceedings are initiated by the trying Magistrate
pursuant to the directions of the High Court, it would impede speedy trial and
the same would be violative of Article 21 of the Constitution. No doubt, quick
justice is sine-qua-non of Article 21 of the Constitution but, when grave
miscarriage of justice, as pointed out in the present case, is committed by the
Police Officer, the ground of delay of disposal of cases or otherwise would not
scuttle the miscarriage of justice. Similarly, we are of the view that in the
given facts and circumstances of this case, the accused themselves would be
liable to be blamed for the delay, if any.
regard to the submission of the learned counsel for the appellant that the
complainant has not challenged the non-framing of charge under Section 395 IPC,
the same is not borne out from the record. In fact, an application was filed by
the learned Public Prosecutor before the trying Magistrate under Section 216 of
the Code of Criminal Procedure for alteration of charge under Section 395 of
the IPC, which was rejected by the trying Magistrate, which in our view
view that we have taken, we do not see any infirmities in the impugned order of
the High Court which would warrant our interference. The appeal is devoid of
merits and is, accordingly, dismissed.