PRISION TORTURE
Kuldip Singh, Petitioner V. State, Respondent.
DATE OF DECISION: 22-04-1994
CITATION(S) : 1994-(100)-CRLJ -2502 -DEL
A telegram received from under-trial Kuldip Singh who was confined
in Central Jail, Delhi, was treated as a writ petition. It was
alleged in the telegram that on 5th October, 1990 Deputy Superintendent
of Jail No. 4 Sh. Garg who was having old enmity against Kuldip
Singh gave ruthless beatings, with rods and dandas and Kuldip
Singh received severe injuries all over the body; the said injuries
were grevious; he was left unconscious; the medical aid was provided
to him and that his life was in danger. Alleging in the telegram
that no report was registered by the Police, directions have been
sought for registration of a case against Garg and his associates.
The telegram purports to have been sent by Kuldip Singh through
Satnam Singh.
Suitable directions were issued to Jail Superintendent to provide
all necessary aid to Kuldip Singh and to also get him examined
by the Medical Officer.
The main question which requires determination in this petition
is whether on the allegations made by the petitioner directions
should be issued or not for registration of the case and its investigation
in accordance with provisions of Code of Criminal Procedure (for
short the Code).
Learned counsel for the petitioner, vehemently contended that
the information in the telegram discloses commission of cognizable
offences and directions may be issued for registration of a case
under section 154 of the Code, and for its expeditious investigation
in accordance with law, particularly, when a Judicial Officer
appointed by the High Court has found that Kuldip Singh was given
merciless beating by Garg and his associates. It is urged by learned
counsel that on receipt of information regarding commission of
cognizable offence it is not permissible for the police authorities
to defer the registration of the case and first hold an enquiry
and depending upon the result of the enquiry to decide whether
to register the case or not.
14. On the other hand, Mr. D. R. Sethi, has very emphatically
contended that the report of Sh. J. P. Singh is liable to be rejected
on account of various infirmities. According to learned counsel
the registration of the case against a Government servant or a
member of the Force and for that matter against any person has
serious consequences and the registration may by itself do irreparable
and incalculable harm to the person against whom the case is registered.
It has been vehemently urged that the registration of case may
mar the entire career of the officials and is likely to demoralise
the entire service. Mr. Sethi pointed out that for the services
rendered in controlling the riots on 5th October, 1990, Garg has
been recommended reward and if registration of the case is ordered
it would do incalculable harm to him. According to Mr. Sethi,
it is permissible for the police authorities to embark upon a
preliminary enquiry before registration of a case. Learned counsel
contended that Code does not forbid the holding of such an enquiry
and withholding registration of case pending the enquiry though
it may not be necessary to hold enquiry in every case.
15. Both learned counsel in support of their respective contentions
in regard to law as to the registration of the case have relied
upon the pronouncement of the Supreme Court in Bhajan Lal's case.
We would advert to that pronouncement a little later. We may first
notice briefly the infirmities in the report of Sh. J. P. Singh
as pointed out by Mr. Sethi.
16. It was pointed out that in the statement of the petitioner
recorded during enquiry he disclosed that three persons, namely,
Satnam Singh, Meharban Singh and Shyam Singh came to meet him
in mulakat on 8th October, 1990 and he requested them to send
telegram to this Court, Lt. Governor and the Home Minister bringing
it to their notice as to what had happened to him on 5th October,
1990. Learned counsel pointed out that as per the record of Jail
(Annexure R-A) none of these persons came to meet Kuldip Singh
on 8th October, 1990 and only one Mangal Singh mentioned as brother
of Kuldip Singh came to meet him. It has been further pointed
out that there are two discharge summaries on the record of the
enquiry and though both the discharge summaries relate to person
named Kuldip Singh but a perusal thereof makes it abundantly clear
that the two discharge summaries relate to two different persons,
one relates to petitioner - Kuldip Singh and the second to a different
person named Kuldip Singh Samra. That seems to be so. The serial
number of two MLCs are different, the entries mentioned in the
said summaries are different, one Kuldip Singh is shown to be
aged 44 years and the other aged 32 years. Mr. Aggarwal did not
dispute these facts. Mr. Sethi further pointed out that Kuldip
Singh was sent for medical examination under orders of Sh. J.
P. Singh on 15-12-90 and opinion of doctor on 19th December, 1990
as many as 19 injuries. The duration of the injuries is stated
to be at least three-six weeks old. Mr. Sethi contended that even
six weeks would not relate back the injuries to the date of incident
i.e. 5th October, 1990, the date of examination being 15th December,
1990. According to learned counsel the use of the word 'at least'
in the opinion of the doctor is superfluous and should be ignored
as the doctor is required to give a definite opinion and, therefore,
no reliance shall be placed on the use of the word 'at least'
while describing the duration of injuries. It was also submitted
thus Satnam Singh who purports to have sent the telegram on behalf
of the petitioner is not his brother but was a former Jail Warder
who had enmity and grudge against Garg. It was contended that
about 150 persons were sent to Ram Manohar Lohia hospital on 5th
October, 1990 and out of them about 41 persons including the petitioner
and Kuldip Singh Samra were from Ward No. 2 who had also receive
injuries during the attempt made to curb violence and foil the
attempt to escape from the jail and no one else had made a grievarance
that he had been given beating and they had obviously received
injuries during attempt to escape from jail. Mr. Sethi further
content led that in view of extraordinary happenings of 5th October,
1990 a number of dignitaries including the Lt. Governor of Delhi
had visited the Jail and to none of them any complaint was made
by the petitioner.
17. The aforesaid submissions were made to buttress the argument
that, injuries were received by Kuldip Singh when he along with
others were trying to escape from jail and when attempts were
made to control it and not on account of any alleged beating having
been given to him by Garg or any of his associates. Reference
was also made by Mr. Sethi to the report of Banerjee Committee
to show the steps taken by the Jail authorities to curb violence
to control the fire and foil the attempt of prisoners to escape
from jail.
18. Mr. Aggarwal, on the other hand, strongly supported the report
of Sh. J. P. Singh and contended that various jail inmates had
deposed in favour of the stand of the petitioner before Sh. Singh
and also took us throught the Banerjee Committee report to show
the finding about corruption and other malpractices being indulged
in jail and severe strictures having been passed against the inaction
of the Jail authorities. Pointing out that the petitioner was
not represented before Sh. J. P. Singh and assuming the report
was not correct on certain aspects. Mr. Aggarwal contended that
these aspects are not relevant for the present purpose and so
also the question as to how persons other than Kuldip Singh received
injuries. Counsel contended that even without report of Sh. Singh
registration of case should have been ordered and now when the
report finds Garg etc. prima facie guilty, there is no justification
for police in not registering the case.
19. We may also notice that during the course of the arguments
certified copy of an application dated 8th October, 1993 which
had been filed in the Court of learned Additional Sessions Judge
before whom the case was pending against Kuldip Singh under section
21 of the N.D.P.S. Act was filed as also the orders passed by
the Judge on the said application. That application had been filed
on behalf of Kuldip Singh by Satnam Singh claiming to be his cousin
brother. It has been alleged in that application that Kuldip Singh
told Satnam Singh when he went to meet him that on 5th October,
1990 Garg accompanied by 5/6 persons gave him severe beatings
with iron rods, pipes and dandas because of previous enmity between
Garg and Kuldip Singh. A copy of the letter dated 7th October,
1990 written by Kuldip Singh to Lt. Governor was also annexed
with that application. That letter also states about beatings
etc. having been given by Garg and others to Kuldip Singh. On
that application a report was called from Superintendent, Jail,
who it seems reported that necessary treatment was being given
to Kuldip Singh. On consideration of the said report on 10th October,
1990 production warrants for Kuldip Singh were issued by learned
Additional Sessions Judge. The order dated 12th October, 1990
passed by learned Judge shows that both hands of Kuldip Singh
were under plaster and he had stitches on his head. The learned
Sessions Judge ordered that since Kuldip Singh was being given
medicines as per the advise of the doctor of Ram Manohar Lohia
Hospital no further orders were called on the application in which
the prayer was for directions being issued to Jail Superintendent
to get Kuldip Singh medically treated/examined in All India Institute
of Medical Sciences or any other Government hospital.
20. Kuldip Singh on 5th October, 1990 was confined in Cell No.
4 of Ward No. 2 of Jail No. 1. There is no doubt that on that
date Kuldip Singh did receive certain injuries. What were those
injuries ? How the injuries were sustained ? Who inflicted the
said injuries ? May be the injuries were sustained as pleaded
by the Jail Officials ? May be the injuries were sustained as
being alleged by the petitioner ?
21. The aforesaid questions cannot be appropriately decided in
a writ petition. It may be that some facts have not been correctly
stated in the report of Sh. J. P. Singh but, at the same time,
it cannot be disputed that since at least from 8th October, 1990
Kuldip Singh is alleging that the injuries were inflicted on him
by Garg and his associates. It is also possible that certain infirmities
pointed out by Mr. Sethi in the report of Mr. J. P. Singh crept
in inadvertently because of the fact that the parties were not
represented. We do not wish to say much on these aspects of the
report of Sh. J. P. Singh as any observation by us may prejudice
either the complainant Kuldip Singh or the persons against whom
the allegations have been made by him. Suffice it to say that
neither on the basis of the material on record it is possible
to return a finding in these proceedings that Kuldip Singh sustained
injuries during attempts of jail officials to curb violence and
foil an attempt of jail escape nor is it possible to hold that
the said injuries were sustained in the manner alleged by the
petitioner nor is it the scope of the present writ petition to
enter into and adjudicate upon these factual matters. We also
feel that when an enquiry of this nature is conducted under the
directions by this Court, ordinarily, the report is liable to
be accepted as such inquiry is ordered to facilitate this Court
to form a prima facie opinion and the type of criticism levelled
against the report by Mr. Sethi, is not permissible. We do not
think that it is a case where we should depart from that normal
and ordinary course and instead delve upon the merit and adjudicate
upon the disputed facts and return a finding in regard to guilt
or innocence of jail officials.
22. Bearing in mind the aforesaid factual aspects of the case
we would now examine the legal propositions urged by counsel for
the parties on the scope of Section 154 of the Code in regard
to the duties of the Police to register the case.
23. Section 154(1) of the Code mandates that every information
relating to the commission of a cognizable offence given to an
officer incharge of a Police Station should be entered in a book
to be kept by such officer in such form as the State Government
may prescribe. That form is commonly called as the First Information
Report. The act of entering the information in the said form is
known as registration of a crime or a case.
24. In support of the contention that on information relating
to commission of cognizable offence being given to the officer
incharge of the Police Station he has a statutory duty to register
the case and the Police before registration of the case cannot
embark upon an enquiry to find out whether the information is
reliable, genuine or otherwise and refuse to register, the case
on that ground, Mr. Aggarwal has placed strong reliance on the
following observations made in the case of State of Haryana v.
Ch. Bhajan Lal, 1990 (4) JT (SC) 650 : 1992 AIR SCW 237 at page
248 :
"32. 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 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. On the other hand,
the officer incharge of a police station is statutorily obliged
to register a case and then to proceed with the investigation
if he has reason to suspect the commission of an offence which
he is empowered under section 156 of the Code to investigate,
subject to the proviso to Section 157. (As we have proposed to
make a detailed discussion about the power of a police officer
in the field of investigation of a cognizable offence within the
ambit of Sections 156 and 157 of the Code in the ensuing part
of this judgment, we do not propose to deal with those sections
in extenso in the present context. In case, an officer incharge
of a police station refuses to exercise the jurisdiction vested
on him and to register a case on the information of a cognizable
offence, reported and thereby violates the statutory duty cast
upon him, the person aggrieved by such refusal can send the substance
of the information in writing and by post to the Superintendent
of Police concerned who if satisfied that the information forwarded
to him discloses a cognizable offence, should either investigate
the case himself or direct an investigation to be made by any
police officer subordinate to him in the manner provided by sub-section
(3), of Section 154 of the Code.
33. 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 XXV of 1861) passed by the Legislative Council of India
read that every complaint or information preferred to an officer
incharge of a police station should be reduced into writing which
provision was subsequently modified by Section 112 of the Code
of 1872 (Act X of 1872) which thereafter read that every complaint'
preferred to an officer incharge 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 1955 which word
is now used in Sections 154, 155, 157 and 190(c) of the present
Code of 1973 (Act 11 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.
34. It is, therefore, manifestly clear that if any information
disclosing a cognizable offence is laid before an officer incharge
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."
25. It is thus clear that the police has under section 154(1)
of the Code a statutory duty to register a cognizable offence.
After registration of the case under Section 154(1), the commencement
of investigation is within the exclusive domain of police and
the courts have no power to stiffle the investigation so long
as it proceeds in compliance with the provisions relating to investigation.
It is only when the police officer decides not to investigate
in exercise of power under provisos (a) and (b) of Section 157(1)
the Magistrate can direct investigation. If the police officer
has reason to suspect the commission of a cognizable offence,
he has to proceed with the investigation or cause it to be proceeded
with by his subordinate. It is, however, not necessary to commence
investigation in every case where First Information Report has
been registered. Clause (b) of proviso to Section 157(1) mandates
a police officer not to investigate a case where it appears to
him that there are no sufficient grounds for commencing an investigation.
26. Can a Police Officer withhold the registration of a case and
start an enquiry to find out whether the information disclosing
commission of cognizable offence is reliable, genuine or otherwise
and later refuse to register a case on the ground that the enquiry
has shown that the information is not genuine, reliable or credible.
Mr. Sethi vehemently contended that in Bhajan Lal's case the Supreme
Court has held that it is permissible for a Police officer to
make preliminary enquiry before registering a case and has relied
upon the following observations from the said decision :-
"82. In this connection, it will be appropriate to recall
the views expressed by Mitter, J. in Sirajuddin v. State of Madras
1970 (3) SCR 931 in the following words :-
"Before a public servant whatever be his status, is publicly
charged with acts of dishonesty which amount to serious misdemeanour
or misconduct of the type alleged in this case and a first information
is lodged against him, there must be some suitable preliminary
enquiry into the allegations by a responsible officer. The lodging
of such a report against a person specially one who like the appellant
occupied the top position in a department, even if baseless, would
do in-calculable harm not only to the officer in particular but
to the department he belonged to, in general ...... The means
adopted no less than the end to be achieved must be impeccable."
83. Mudholkar, J. in a separate judgment in the State of Uttar
Pradesh v. Bhagwant Kishore Joshi, 1964 (3) SCR 71 at 86 : (1964
(1) Cri LJ 140) while agreeing with the conclusion of Subba Rao,
J. (as he then was) has expressed has opinion stating :
"In the absence of any prohibition in the Code, express or
implied, I am of opinion that it is open to a police officer to
make preliminary enquiries before registering an offence and making
a full scale investigation into it."
84. We are in agreement with the views, expressed by Mitter J.
and Mudholkar, J. in the above two decisions."
27. Reliance has also been placed by Mr. Sethi on the decisions
of the Supreme Court in the case of Sirajuddin v. State of Madras,
1970 (3) SCR 931 : (1971 Cri LJ 523) and in the case of the State
of Uttar Pradesh v. Bhagwant Kishore Joshi, 1964 (3) SCR 71 :
(1964 (1) Cri LJ 140) noticed by the Supreme Court in the aforequoted
passages. In these decisions while dealing with the cases of public
servant under Prevention of Corruption Act the Supreme Court held
that before registering a case against a public servant which
may do incalculable harm not only to him but also to the department
he belongs to, the holding of preliminary enquiry before going
ahead with the registration of the offence leading to a full scale
investigation under Chapter XII of the Code is permissible. In
the present case, we are not concerned with such eventuality.
In the cited decisions, the Supreme Court has not held that when
an information about commission of cognizable offence is given
to an officer incharge of a Police Station he can withhold registration
of a case and embark upon an enquiry and refuse registration as
a result of the said enquiry. Many offences are non-cognizable.
Many are cognizable. The acceptance of contention of Mr. Sethi
would mean that on receipt of information about commission of
cognizable offence a police officer may embark upon an enquiry
and refuse registration of a case on the ground that as enquiry
shows commission of a non-cognizable offence or it shows that
the information is not genuine. That does not appear to be the
law as pronounced by Supreme Court in Bhajan Lal's case. Mr. Sethi
gave various examples to support his submission that incalculable
harm may be done to a person on registration of a case based on
unreliable and incredible information given to the police and
submitted that every day cases purely of civil nature between
landlord-tenant, between husband and wife and against police officers
are coming to notice where information/complaint about the commission
of a cognizable offence is laid before a Police officer with a
view to wreck vengence against the person against whom such allegations
are made. We may notice that as regards public servants, the provisions
of Section 197 of the Code and Section 19 of Prevention of Corruption
Act, 1988, provide ample safeguards as cognizance of offence in
those cases cannot be taken by court without previous sanction
of the government. It was also pointed out that these informations
are generally written/drafted under the legal advise and thus
it is ensured that the information contains the necessary ingredients
of law making it a cognizable offence. That may be so but in such
cases the police is not helpless. Where information itself does
not disclose commission of cognizable offence no duty is cast
upon the police to register the case. If the information is vague,
the police can say that information does not disclose commission
of offence and thus registration of case may be refused or withheld
and in the meantime a preliminary enquiry may be held to find
out about the commission of a cognizable offence. In other cases
of the nature pointed out by Mr. Sethi where care is taken to
see that the information contains all ingredients of commission
of cognizable offence, the police officer after registration of
the case, if there is no reason to suspect the commission of an
offence, may not proceed with the investigation but in that eventuality
the requirements of Sections 157 to 159 of the Code will have
to be complied with. The person deliberately laying wrong information
before the Police may also subject himself to prosecution under
the various provisions of the penal law. We also cannot shut our
eyes from the other side of the picture presented before us forcefully
by Sh. Aggarwal that even in genuine cases the Police refuses
to register the crime. Various such cases have also come to our
notice where the Police refuses to register the crime.
28. Mr. Sethi also contended that the principal question before
the Supreme Court in Bhajan Lal's case was not as to in which
cases the FIR should be registered but was whether the decision
of the High Court quashing the First Information Report was correct
or not. That may be so but at the same time it has to be borne
in mind that the Supreme Court before discussing the submission
in regard to quashing of the FIR first considered in the forefront
the legal principles governing the registration of cognizable
offences and the power of investigation and it was clearly held
that police officer has a statutory duty to register First Information
Report on information being given disclosing commission of cognizable
offence.
29. Mr. Sethi vehemently relied upon the observations of Supreme
Court directing that no criminal case shall be registered against
a judicial officer without prior permission of the Chief Justice
of the concerned High Court. The said observations were made by
Hon'ble Supreme Court keeping in view the requirement of maintaining
independence of judiciary so that members of judicial service
should not work under apprehensions of retariatory action by the
police and the executive and have no relevance for deciding the
question in this case.
30. Under the Scheme of Code of Criminal Procedure, on registration
of a case under Section 154(1) of the Code, irrespective of whether
the investigation is embarked upon or not the matter has to be
placed before an independent and impartial forum of Judiciary.
When it is so placed various options are open to the Judicial
Officer. He may concur with the Police and may make orders closing
the case. The Judicial Officer may not be satisfied with the investigation
or may not be satisfied with the action of police officer in not
investigating the crime in exercise of power under clause (b)
of proviso to Section 157(1) of the Code, and in these eventualities
the Judicial officer can direct further investigation or investigation
as the case may be. To give power to the police not to register
the crime in a cognizable case and instead proceed with an enquiry
and later refuse registration would have the effect of the matter
never coming to gaze of judicial scrutiny. This is not contemplated
by the Code.
31. Strong reliance was placed by Mr. Sethi on Rule 24.4 of Punjab
Police Rules, 1934 in support of the contention that preliminary
enquiry before the registration of the crime is permissible. The
said rule reads as under :-
"24.4 (1) If the information or other intelligence relating
to the alleged commission of a cognizable offence, is such that
an officer in charge of a police station has reason to suspect
that the alleged offence has not been committed, he shall enter
the substance of the information or intelligence in the station
diary and shall record his reasons for suspecting that the alleged
offence has not been committed and shall also notify to the informant,
if any, the fact that he will not investigate the case or cause
it to be investigated.
(2) If the Inspector of other superior officer, on receipt of
a copy of the station diary, is of opinion that the case should
be investigated, he shall pass an order to that effect, and shall,
in any case, send on the diary or an extract therefrom to the
District Magistrate for his perusal and orders.
(3) When a counterfeit currency note is found in circumstances
which indicate that owing to absence of guilty knowledge no offence
under Section 489-B, Indian Penal Code, or cognate section has
been committed, the information shall be recorded under Section
154, Criminal Procedure Code, in the station diary; the special
report required by Rule 24.16 shall be submitted and enquiry shall
be made to trace the point in the movements of the note at which
a cognizable offence appears to have been committed. When reasonable
suspicion of such commission arises a First Information Report
shall be recorded in the police station concerned and investigation
under Section 157, Criminal Procedure Code, shall be made."
32. In order to appreciate the true scope of the rule and for
facility of reference we may also reproduce Sections 157 and 158
of the Code which read as under :-
"157. Procedure for investigation. - (1) If from information
received or otherwise, an officer in charge of a police station
has reason to suspect the commission of an offence which he is
empowered under Section 156 to investigate, he shall forthwith
send a report of the same to a Magistrate empowered to take cognizance
of such offence upon a police report and shall proceed in person
or shall depute one of his subordinate officers not being below
such rank as the State Government may, by general or special order,
prescribe in this behalf to proceed, to the spot, to investigate
the facts and circumstances of the case and, if necessary, to
take measures for the discovery and arrest of the offender :
Provided that -
(a) when information as to the commission of any such offence
is given against any person by name and the case is not of a serious
nature, the officer in charge of a police station need not proceed
in person or depute a subordinate officer to make an investigation
on the spot.
(b) If it appears to the officer in charge of a police station
that there is no sufficient ground for entering on an investigation,
he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the
proviso to sub-section (1), the officer in charge of the police
station shall state in his report his reasons for not fully complying
with the requirements of that sub-section, and, in the case mentioned
in clause (b) of the said proviso, the officer shall also forthwith
notify to the informant, if any, in such manner as may be prescribed
by the State Government, the fact that he will not investigate
the case or cause it to be investigated.
Sec. 158. Report how submitted. - (1) Every report sent to a Magistrate
under Section 157 shall, if the State Government so directs, be
submitted through such superior officer of police as the State
Government, by general or special order appoints in that behalf.
(2) Such superior officer may give such instructions to the officer
in charge of the police station as he thinks fit, and shall, after
recording such instructions on such report, transmit the same
without delay to the Magistrate."
33. Rule 24.4 is not very happily worded. But reading Rule 24.4
and Sections 157 and 158 of the Code together makes it abundantly
clear that on registration of a case and where Police officer
has reason to suspect that the alleged offence has not been committed,
he may refuse to embark upon the investigation. The investigation
is the prerogative of the Police. But that is subject to the control
of the judiciary as spelt out from the provisions of the Code
from Sections 156 to 173 and as also discussed above. We may also
notice that rules cannot override the statutory provisions. Rule
cannot be given effect to in violation of the Act.
34. The conferment of absolute and uncanalised discretion to the
police to register a cognizable offence or not, would be violative
of equality clause enshrined in our Constitution. The Code vests
power in Judiciary to control the discretion of the police. The
judiciary will remain unaware in absence of recording of first
information report. Whenever police officer after recording of
the First Information Report has a reasonable doubt about the
commission of a cognizable offence, he has power not to proceed
with the investigation but that is subject to check by judiciary.
There is rapid increase of custody deaths and deaths during encounters
with law enforcing agency. It is the duty of all organs including
Judiciary to protect human rights and, therefore, it is necessary
to provide safeguards for early recording of the crime and control
of police by judiciary which would be negated if it is left to
the police to decide in which case to register the crime on disclosure
of commission of cognizable offence and in which defer it pending
enquiry.
35. In our view the legal position is clear that on information
being laid before the Police about the commission of a cognizable
offence the Police has no option but to register the case and
then to proceed with investigation of the case under the provisions
of Chapter XII of the Code. The police can also decide not to
investigate in terms contemplated by Section 157(1) of the Code.
The Police has no right to refuse registration of a case on information
being laid before it about commission of cognizable offence and
instead proceed with an enquiry and refuse registration as a result
of the said enquiry. If it is left to be determined by the Police
to decide in which cases of disclosure of commission of cognizable
offence it would first hold preliminary enquiry and then decide
to register or not to register the case, it would also lead to
delay in registration of the crime and in the meantime the material
evidence may not be available. The conduct of enquiry itself may
entail a long period. There may be then challenge to the said
enquiry. The enquiry of the nature suggested by the respondents
is not permissible in law.
36. Now reverting again to the facts and circumstances of the
present case, admittedly, on 5th October, 1990 the petitioner
was confined in Jail as an undertrial. The information laid by
the petitioner makes an accusation against the jail officials
that they gave severe beating to him and thus they committed various
cognizable offences. The petitioner did receive injuries. The
nature of those injuries and whether the same were inflicted in
the manner alleged by the petitioner or were sustained as suggested
by the Police is a matter which is still to be investigated under
the Code of Criminal Procedure after registration of the case.
It is not the case of the respondents that any investigation or
even enquiry was conducted by the police or any intimation was
sent to the petitioner. A Judicial Officer appointed under the
directions of this court has found prima facie substance in the
allegations of the petitioner. In our view, the type of examination
of report of Sh. J. P. Singh as argued by Mr. Sethi is neither
permissible in these proceedings nor is it desirable. In some
appropriate proceedings it will have to be examined as to how
Kuldip Singh received injuries while in jail custody and why leaving
the real culprits he involved Garg and his associates. It was
not argued before us that Kuldip Singh had himself inflicted injuries
with a view to involve Garg and others. While deciding this petition
it is not possible for us to say whether only the person named
in Annexure R-A met the petitioner on 8th October, 1990 or other
persons named in his statement made before Sh. J. P. Singh also
met him. We may notice that according to the contention of Mr.
Aggarwal as per practice being followed in jail any number of
persons can meet an undertrial and it is not necessary that names
of all will find place in jail record. We were told that 5th and
6th October, 1990 were holidays. The letter referred to above
written by the petitioner to Lt. Governor is dated 7th October,
1990. The telegram was sent to this court on 8th October, 1990
and making similar allegations an application was also made before
the Sessions Judge before whom the case was pending on 8th October,
1990. For present purpose, it is not necessary to decide the controversy
about the date of the telegram. We may also notice that the complaint
dated 25th October, 1990 made by the petitioner to Lt. Governor
with copy to the Police Commissioner and Deputy Commissioner of
Police (Crime) making allegations about beating having been given
to him by Garg and others and seeking registration of a case under
the relevant provisions of the Indian Penal Code, purports to
have been signed by 22 persons in jail. We have not been informed
as to what action, if any, was taken on the said complaint. It
is not possible for us to say whether other inmates of Jail have
grouped together against jail officials because of any sense of
brotherhood between the jail inmates or their conscious has pricked
against the jail officials because of some terrible wrong having
been done to the petitioner. For the present, by registration
of the case only the investigating machinery has to be set in
motion.
37. As a result of aforesaid discussion, we direct that the FIR
be registered and the investigation be conducted expeditiously
in accordance with law by the Crime Branch of Delhi Police. The
rule is made absolute in the above terms.
Harbans Singh, Petitioner V. State Of U.P. And Another Respondents.
Dhara Singh, Petitioner V. State Of U.P. And Another, Respondents.
DATE OF DECISION : 13-09-1990
CITATION(S) :1991-(097)-CRLJ -0453 -SC
JUDGE(S) :
A N Mukharji
P B Sawant
S C Agarwal
Rule Nisi. Heard learned counsel for both the parties. The grievance
of the petitioner is that certain Sikh under-trial prisoners are
being kept in fetters. Notice was issued on 22nd December, 1989
and was made returnable within five weeks. The counter has been
filed by the Deputy Jailor of Central Jail, Bareilly, stating
that 21 under-trial prisoners, named therein, are being prosecuted
for commission of different offences before the Designated Court,
Bareilly. We are not concerned with their prosecutions The short
question before us is whether they need be kept in fetters as
undertrial prisoners. In paragraph 4 of the counter, it is stated
that these accused were received in the Central Jail, Bareilly,
on transfer from other jails between August and December, 1990
in fetters and keeping in view the security instructions contained
in paragraph 427 of the U.P. Jail Manual, due to multifarious
cases pending against them for heinous crimes they are kept in
fetters for otherwise they are security hazards. The learned counsel
for the State Government informed us that he was unaware of the
present position and was, there-fore, not in a position to assist
the Court. That is regrettable. However, having regard to the
averments in paragraph 4 of the counter dated 23rd January, 1990
it is obvious that the undertrial prisoners are kept in fetters
and this is confirmed by the report of the District Judge, Bareilly
dated April 9, 1990. We fail to understand why proper security
arrangements cannot be made in Jail to guard these undertrials.
Armed guards can be posted to guard them if security reasons so
demand but it seems inhuman to keep them in fetters while they
are awaiting trial which is delayed, notwithstanding this Court's
order to expedite them. We are, therefore, of the opinion that
while they are in Jail proper arrangements may be made but it
is not necessary to keep them in fetters all the time. It will,
however, be open to the authorities to place extra security restrictions
of the type they consider appropriate when these under-trials
are required to be taken out of jail for any purpose. We, therefore,
direct that they will not be kept in fetters in Jail.
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