THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NO.34137 of 2013
24-04-2014
G.B.C.Raj Gopal.Petitioner
The Government of A.P. rep., by the Principal Secretary, Home Department,
Secretariat Buildings, Secretariat, Hyderabad, A.P. and six others..Respondents
Counsel for the petitioner: Mr. Mohd. Shafiuddin
Counsel for respondents: Government Pleader for Home;
Sri M. Karunasagar;
Sri R. Raghunandan, Senior Counsel for P. Shreyas Reddy;
Sri D. Srinivas.
<GIST:
>HEAD NOTE:
?Citations:
1) (2014) 2 SCC 1
2) 1992 Supp (1) SCC 335
3) (2013) Cri.L.J. 776 (SC)
4) AIR 1964 SC 221
5) AIR 1955 SC 196
6) AIR 1959 SC 707
7) 1982 Cri.L.J 1557 (Kerala HC FB)
8) 1976 Cri.L.J 1825 (All HC-Lucknow Bench)
9) (2010) 7 SCC 667
10) (1994) 4 SCC 260
11) 2002(2) AnW.R. 582 = 2002(2) ALD (Crl). 706 (A.P).
12) AIR 1997 SC 610
13) (2005) 3 SCC 647
14) Judgment in W.P.No.523 of 2014 dated 21.01.2014
15) 2004(4) ALT 175
16) Judgment in W.P. No.13391 of 2006 dated 14.07.2006
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION No.34137 OF 2013
(The Deputy Commissioner of Police, West Zone, Hyderabad is the 3rd
respondent, and the Inspector of Police, Sanjeeva Reddy Nagar P.S. is the 4th respondent}
Important paras of the judgment
18. The question which necessitates examination is whether the petitioner could have been, orally
and forcibly, summoned to his office by the 3rd respondent even before registration of the complaint
under Section 154 CrPC. The first information report is either given in writing or is reduced to
writing. The Code contemplates two kinds of FIRs: the duly signed FIR under Section 154(1) is by
the informant to the officer concerned at the police station. The second kind of FIR is one which is
registered by the police officer himself on the basis of information received, or other than by way of
an informant [Section 157(1)]. This information must also be duly recorded, and a copy should be
sent to the Magistrate forthwith. (Lalita Kumari1). The sine qua non for recording an FIR is that
there must be an information, and that information must disclose a cognizable offence. If
information disclosing a cognizable offence, satisfying the requirements of Section 154(1) Cr.P.C, is
laid before him, the police officer has no option but to enter the substance thereof in the prescribed
form i.e., to register a case on the basis of such information. (State of Haryana v. Bhajan Lal ). In
G.B.C.Raj Gopal vs The Government Of A.P. Rep., By The ... on 24 April, 2014
Indian Kanoon - http://indiankanoon.org/doc/15684794/ 9
registering an FIR the consent, or otherwise, of the complainant is irrelevant. For cognizable
offences a duty is cast upon the police to register an FIR, and conduct investigation. The legislative
intent of Section 154(1) CrPC is to ensure that the information, relating to the commission of a
cognizable offence, is promptly registered and investigated in accordance with law. (Lalita Kumari1).
The context in which the word shall appears in Section 154(1) CrPC, the object for which it has been
used and the consequences that will follow from the infringement of the direction to register FIRs,
show that the word shall, used in Section 154(1), is mandatory in character. Section 154(1) of the
Code places an unequivocal duty upon the police officer, in charge of a police station, to register an
FIR on receipt of information that a cognizable offence has been committed, and does not confer
any discretion on him to embark upon a preliminary inquiry prior to the registration of the FIR.
(Lalita Kumari1; Anju Chaudhary v. State of Uttar Pradesh ; State of Uttar Pradesh v. Bhagwant
Kishore Joshi ).
19. The requirement of Section 154 Cr.P.C is only that the report must disclose the commission of a
cognizable offence, and that is sufficient to set the investigating machinery in motion. The intention
of the legislature, by the insertion of sub-section (3) of Section 154, is to ensure that no information
of the commission of a cognizable offence is ignored or is not acted upon. The obligation to register
an FIR has inherent advantages. (a) It is the first step to access to justice for a victim; (b) It upholds
the rule of law in as much as the ordinary person brings forth the commission of a cognizable crime
to the knowledge of the State; (c) It also facilitates swift investigation and sometimes even
prevention of the crime. In both cases, it only effectuates the regime of law; and (d) It leads to less
manipulation in criminal cases and lessens incidents of antedated FIR or deliberately delayed FIR.
The object sought to be achieved by registering the earliest information as an FIR is, inter alia, two
fold: one, that the criminal process is set into motion and is well documented from the very start;
and second, that the earliest information, received in relation to the commission of a cognizable
offence, is recorded so that there cannot be any embellishment, etc. later. The FIR is registered in a
book called the FIR book or the FIR register. A copy of each FIR is sent to the superior officers and
to the concerned Judicial Magistrate. The signature of the complainant is obtained in the FIR book
as and when a complaint is given at the police station. As each FIR has a unique annual number, it is
possible for supervisory police officers and the courts, wherever necessary, to exercise strict control
and keep track of registration of FIRs. The underpinnings of compulsory registration of the FIR is
not only to ensure transparency in the criminal justice-delivery system but also to ensure judicial
oversight. Section 157(1) deploys the word forthwith. Any information received under Section 154(1),
or otherwise, has to be promptly informed, in the form of a report, to the Magistrate. The
commission of a cognizable offence is not only brought to the knowledge of the investigating agency
but also to the subordinate judiciary. (Lalita Kumari1).
While the police
should not interfere into the disputes, which are purely of civil nature, they cannot shirk their
responsibility of protecting persons against injury or trespass particularly when the people
complained against are powerful or hired goondas. The following instructions are, therefore, issued
for the guidance of the police officers.
A. Orders of the civil court should be implemented and all assistance should be provided to the Civil
Court officials as mentioned in order
321. B. If any civil dispute is likely to give rise to an imminent breach of peace or disturbance of
public order, the police officer shall take recourse to Sections 144 to 148 Cr.P.C. as the case may be
(Chapter 38, Volume II).
C. As per Section 149 CrPC every Police Officer may interpose for the purpose of preventing and
shall, to the best of his ability, prevent the commission of any cognizable offence. In application of
this provision, police officers shall be guided by instructions given by superior officer of the rank of SP/DCP/CP/DGP
D. In dealing with these cases the SHO should make a contemporaneous record of every action that
he takes in the general diary and in the connected file. (emphasis supplied)
39. Sections 144 to 148 CrPC, as referred to in Part B of Standing Order 322-I, relate to the powers
of a Magistrate to issue orders in urgent cases of nuisance or apprehended danger (Section
144); powers of a District Magistrate to prohibit carrying arms in a procession or a mass drill or a
mass training with arms (Section 144-A); powers of an Executive Magistrate where disputes
concerning land or water is likely to cause breach of peace (Section
145); powers of a Magistrate to attach the subject of dispute and to appoint a receiver (Section 146);
powers of an Executive Magistrate in a dispute concerning right of use of land or water (Section
147); and the powers of a District Magistrate to conduct a local enquiry (Section 148).
41. Even in a civil dispute with an element of criminality, such as in the case of personal injury or
trespass, police officers are entitled only to take action against the criminal element of the civil
dispute, and not interfere with the civil dispute itself. For instance, if the personal injury in a civil
dispute attracts the ingredients of Section 354 IPC, and trespass in a civil dispute attracts the
provisions of Sections 447 and 448 IPC, then the information or the complaint received must be
registered under Section 154(1) Cr.P.C, as they are cognizable offences, and an investigation should
only be caused thereafter. Section 41(1)(a)&(b) CrPC enable a police officer to arrest, without an
order from a Magistrate and without warrant, any person who has either committed or is alleged or
is suspected to have committed a cognizable offence. This power is not to be exercised for the mere
asking. Section 41 Cr.P.C. requires a police officer, before arresting any person, to be satisfied that
such an arrest is necessary in terms of clauses (a) to (e) of Section 41(1)(b)(ii) Cr.P.C. It also requires
him to record, while making such arrest, his reasons therefor in writing. (Sambangi Dhanunjaya
Naidu. v. The State of A.P. rep. by its Principal Secretary, Home Department ). Even in civil disputes
with an element of criminality, while the police officer can exercise his powers under Section 41 and
41-A CrPC during the course of investigation, he cannot adjudicate or resolve property/civil
disputes. The power conferred, on respondents 3 and 4, was only to take action in respect of the
allegations of the 5th respondent of a threat to her life from her brother as stated in her complaint
dated 13.11.2013; or her being assaulted and intimidated by her brother and his brother-in-law as
stated in her complaint dated 27.11.2013; and not to forcibly resolve the property disputes between
the petitioner and the 5th respondent.
VI. POWER OF ADJUDICATION OF CIVIL/PROPERTY DISPUTES IS CONFERRED ONLY ON
THE JUDICIARY AND NOT ON POLICE OFFICERS:
50. Maintenance of peace and public order, prevention of crime and investigation of cognizable
offences are functions which Police Officers are, statutorily, obligated to discharge. While Section
154(1) Cr.P.C confers power, and casts a duty, on the police officer to register a cognizable offence,
Section 155 Cr. P.C. enables a police officer to make an entry in the appropriate register, regarding
information relating to a non-cognizable offence. He cannot investigate a non-cognizable offence
without the order of the Magistrate. As a necessary corollary, any attempt by a police officer to
investigate a complaint, which does not contain allegations of the commission of a cognizable
offence, without permission from the Magistrate would violate Section 155(2) Cr. P.C and is, ex
facie, illegal. There is no presumption in law that every rift in human relations would lead to a civil
dispute, and a civil dispute is likely to result in clashes resulting in offences against the human body.
A Police Officer would not be justified in saying that he/she is examining a complaint which, ex
facie, has the trappings of a civil dispute. (S. Masthan Saheb11). Even if a civil dispute has a criminal
element, which falls within the ambit of a cognizable offence, with the potential of a law and order
problem posing threat to the society at large, a Police Officer can take up investigation only after
registering the complaint under Section 154 Cr.P.C. (Lakshmi @ Lakshmamma v. Commissioner of
Police ).
51. The function of resolving civil disputes is entrusted to the judiciary. Police officers lack
jurisdiction to interfere in civil/property disputes between two citizens. Even in criminal case, their
role is limited to the registration of complaints and causing investigation. The power to adjudge
whether or not an accused is guilty of having committed a criminal offence, and to convict and
sentence him therefor, is vested exclusively in the judicial branch of the State. Judicial power cannot
be exercised by agencies outside the judicial orbit and, where there is no legislative foundation for
exercise of judicial power by a forum, it has no legal capacity to entertain requests for adjudication.
Judicial power is a facet of sovereign power and can be conferred only by a Statute or by a Statutory
instrument. It cannot be assumed suo motu. No authority may exercise adjudicatory powers absent
a conferment of such powers by Statutory instruments. The coercive power of the State may not be
employed to adjudicate disputes. (M/s. Janathaeem Industries Ltd., rep., by its Public Relations
Officer M.S. Ganesan, Vijayawada. v. The District Collector, Krishna district at Vijayawada ).
52. While the inordinate delay, in resolution of civil disputes before Civil Courts of competent
jurisdiction, is undoubtedly a cause of concern that does not justify Police Officers exercising
powers, conferred exclusively of the judicial branch of the State, to adjudicate civil disputes. While
the need to strengthen judicial institutions, and to reduce the inordinate delay in disposal of Civil
Suits, cannot be over-emphasised, the highhanded acts of police officers in seeking to resolve civil
disputes, that too in the precincts of a police station, must also be sternly dealt with. Just as Courts
would not undertake investigation of criminal offences, as these are matters in the exclusive realm
of the investigating agency, the powers conferred and the duties cast upon Police Officers, under the
Criminal Procedure Code, is only to register complaints regarding cognizable offences and
investigate thereinto; and not adjudicate even criminal cases, much less resort to settlement of civil
disputes.
53. Police officers should not usurp, or even seem to usurp, judicial functions of adjudication or to
summon and force persons to resolve their inter-se civil disputes in a particular manner under the
guise of family counselling. In the present case the 3rd respondent has, in effect, donned the robes
of a judge in adjudicating property disputes between the petitioner and the 5th respondent.
65. No person can be forcibly summoned to a police station except in accordance with law, including
the provisions of the CrPC. Exercise of power by police officers, and the mode and manner of its
exercise, is circumscribed by the provisions of the CrPC. Conferment of power is only to enable
police officers to effectively discharge their statutory/legal obligations. Exercise of power, otherwise
than in furtherance of a statutory/legal duty, is an abuse of power. In the present case, not only does
the 3rd respondent lack the power to summon the petitioner to the police station, even without
registering the complaint and without a written notice asking him to appear, he has also abused his
office in carrying on a counselling session within the premises of the office of the DCP, West Zone,
that too for resolution of a civil dispute regarding division of property between the petitioner and
the 5th respondent.66. The belated and half-hearted apology tendered by the 3rd respondent, with a rider that his apology was if he had transgressed his limits in the course of interacting with the petitioner or the
5th respondent, does not commend acceptance. It is not even the case of the 3rd respondent that the
petitioner had voluntarily, and on his own accord, come to the S.R.Nagar Police Station on
14.11.2013 or that he had on his volition and free will, and without being directed by the police
officers at S.R.Nagar P.S, come over to the office of the D.C.P., West Zone, to meet the 3rd
respondent on 14.11.2013. Neither has the 3rd respondent admitted that his action in telephonically
instructing the 4th respondent to direct the petitioner to come to S.R.Nagar Police Station, and to
produce him at the office of the DCP, West Zone for counselling on 14th November, 2013 and in
directing the petitioner to appear before him on 19th November, 2013 is illegal, nor has he assured
this Court that he would refrain from indulging in such acts in future. I see no reason, therefore, to
accept the apology of the 3rd respondent which is, evidently, made only to avoid being faulted by
this Court. The illegal and high-handed acts of the 3rd respondent, depriving the petitioner of his
fundamental right of personal liberty under Article 21 of the Constitution of India, cannot be
ignored. The competent authority shall forthwith initiate major penalty proceedings against the
respondent, conduct a departmental enquiry, and take disciplinary action in accordance with law.
The entire exercise, culminating in a final order being passed by the competent authority, shall be
completed within four months from the date of receipt of a copy of this order. This order shall not
preclude the petitioner from claiming damages, for the violation of his fundamental rights by the
3rd respondent, in duly instituted legal proceedings.
67. While the 4th respondent cannot absolve himself of all blame on the specious plea that he had
merely acted on the orders of the 3rd respondent, this Court must also bear in mind that the 4th
respondent has, in his counter-affidavit filed before this Court, narrated the sequence of the events
but for which the illegal and high-handed acts of the 3rd respondent may not have been established.
The 4th respondent must constantly remind himself that his foremost obligation is to uphold the
rule of law, notwithstanding the illegal orders of his superiors. It would suffice to warn the 4th
respondent to desist from indulging in such acts in future.
68. This Court has only examined the illegal and high-handed acts of the 3rd respondent in orally
summoning and counselling the petitioner at his office, to settle his property disputes with the 5th
respondent, without even registering the complaint of the 5th respondent under Section 154(1)
CrPC; and has not touched upon the property disputes between the petitioner and the fifth
respondent. It is made clear that, while investigation in Crime No.182 of 2013 may be conducted in
accordance with law and a final report submitted under Section 173 CrPC, the 3rd respondent shall
not be involved either directly or indirectly in investigation or be consulted in the preparation and
finalisation of the final report.
69. The Writ Petition is, accordingly, allowed with exemplary costs of Rs.10,000/- (Rupees Ten
Thousand only). The costs should, ordinarily, have been paid to the petitioner. However, as he is
employed in the U.S.A, and the genesis of this dispute is an internecine fight over vast extents of
property, it is but appropriate that the cost of Rs.10,000/- is paid by the 3rd respondent to the
Andhra Pradesh State Legal Services Authority, Hyderabad, within four weeks from the date of
receipt of a copy of this Order. The miscellaneous petitions, if any pending, are also disposed of.
_______________________________ (RAMESH RANGANATHAN, J) Date: .04.201
