shri abhay nath dubey vs state of delhi and ors. on 15 may, 2002

Delhi High CourtShri Abhay Nath Dubey vs State Of Delhi And Ors. on 15 May, 2002Equivalent citations: 99 (2002) DLT 114, 2002 (64) DRJ 126Author: KhanBench: B Khan, V Aggarwal

JUDGMENT Khan, J.

1. The matter raises an interesting issue viz. whether recourse to inquest proceedings under Section174 Cr. P.C. obviates the requirement of registration of FIR and whether negative inquest reportcloses the case for good and operates as bar against such registration and follow-up investigation.

2. Petitioner's son, Markandey Dubey died in alleged suspicious circumstances. He was married toone Neelam on 7.2.1991 and was living with her at his father-in-law's place with one Ram Nandan, atenant there. Petitioner claims to have received a telephonic message on 6.6.1996 that his son was ina serious condition taken to RML Hospital where he was declared brought dead. He alleges that,even though, he had informed police officials of P.S. Patel Nagar about the suspected murdered ofhis son but his pleas went unattended. He later approached them for registration of FIR, but noaction was taken. He then waited for 20 days or so and formally lodged a complaint in writing withDelhi Police Commissioner on 25.06.1996 for which he was was threatened. He lodged a secondcomplaint on 23.7.1996 and meanwhile, one Devender Mishra, other tenant of the house informedhim on 1.6.1996 that his son was murdered by Ram Nandan and Neelam. This constrained him tofile Crl.W.P.714/1996 which was opposed by respondents on the ground that his complaint wasfound without substance. This petition was eventually disposed of by order dated 6.11.1999requiring DCP (Wes) (R-3) to treat it as a complaint and to inquire into it under law. Even so,nothing was done in the matter and no FIR was registered. On the contrary, he was informed bycommunication dated 4.12.1999 by R-4 that his complaint was found without any substance.

3. Petitioner challenges this communication and seeks its quashment and also a direction torespondents to register a case against these suspects named by him in his complaint under Section302/34 IPC.

4. L/C for petitioner contended that respondents had failed in due discharge of their statutoryobligation by not registering an FIR on petitioner's complaint, even when, it, prima facie, disclosed acognizable offence. They had no option but to do so under Section 154(1) of IPC and it was not opento them to embark on any elaborate or detailed enquiry to test the reliability and correctness of theallegations therein. He also submitted that recourse to inquest proceedings under Section 174Cr.P.C. was inconsequential and would not stand in the way of registration of FIR. He cited severalSupreme Court judgments including Mohindro v. State of Punjab 2000 (1) SCALE 63, P.Damodaranv. State 1993 Crl. L.J. 404, Podda Narayana v. State of Andhra Pradesh and some judgments of thiscourt also, including Kuldip Singh v. State 1994 (3) C.C.Cases 44 to show that no inquiry was legallypermissible to be made to test the correctness or reasonableness of the allegations made in theinformation laid before a police officer related to a commission of a cognizable offence.

Shri Abhay Nath Dubey vs State Of Delhi And Ors. on 15 May, 2002

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5. Respondents' case is that DCP (West) had conducted full-fledged inquiry into the matter andfound no substance in petitioner's complaint. It is explained by them that following receipt ofinformation about incident inquest proceedings under Section 174 Cr.P.C. were initiated. Thepost-mortem was conducted and statements of family members, relatives and neighbours recorded,but none of them suspected any foul play. Nor was any external injury found on deceased's body.The viscera and blood of the deceased was sent to CFSL for examination, but report showed nopresence of any poisonous substance in it. That second test conducted under the orders of this courtalso did not yield any result because percentage of alcohol could not be detected from the dry bloodby then. The complainant was also examined who alleged illicit relationship between hisdaughter-in-law and Ram Nandan which was found based on either hearsay or his perceived denialof justice.

6. The vexed question that thus arises is whether police could embark on a full scale inquiry intopetitioner's complaint or its resort to inquest proceedings was a substitute for investigationpursuant to Section 154(1) and whether a negative inquest report would operate as bar to theregistration of FIR on it.

7. The answer to both the questions has to be in negative for the reasons to follow. Chapter XIICRPC deals with giving/reporting of information to police in cognizable cases and its power ofinvestigation. Section 154(1) falling under this deals with registration of FIR by the officer in chargeof a police station on the information laid before him related to a cognizable offence. It casts astatutory duty on him to enter the substance of such information in the prescribed register/formwhich is commonly called FIR and the act of entering it is called registration of a crime or case. As itis, the officer has no choice but to enter the substance of information as laid before him, if it relatesto commission of cognizable offence and he cannot embark upon any elaborate inquiry to ascertainthe genuineness or reasonableness of such information and to refuse registration of a case on that.He may conduct some discreet inquiry if the complaint/report contains uncertain, indefinite andambigous allegations raising doubts about the commission of a cognizable offence. But it is not opento him to conduct a full dress enquiry into the merit, reasonableness or correctness of the allegationsand to assume the role of a trial court in the process. Because the correctness or reasonableness orgenuineness of the information laid before him is not condition precedent for registration of a caseas it was ascertainable upon investigation which was to follow under Section 156 CRPC. Thisposition is by and large settled by several Supreme Court judgments and the judgment of this court.In Bhajan Lal v. State of Haryana , the Apex Court had this to say on the issue:-

"At the stage of registration of a crime or the case on the basis of information disclosing a cognizableoffence in compliance with the mandate of Section 154(1), the concerned police officer cannotembark upon an inquiry as to whether information laid by informant is reliable and genuine and torefuse registration of a case on that ground. It is, therefore, manifestly clear that if any informationdisclosing cognizable offence is laid before a Police Officer in charge of a police station satisfying therequirements of Section 154(1) of the Code, the said officer has no other option except to enter thesubstance thereof in the prescribed form, that is to say, to register a case on the basis of suchinformation."






8. The court, however, in some other judgments dealing with case under prevention of CorruptionAct has permitted some preliminary inquiry to be made before registration of the case. In State ofU.P. v. B.K. Joshi (1964 SC 221) it said:-

"In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open toa Police Officer to make preliminary enquiries before registering an offence and making a full scaleinvestigation into it."

9. Similarly in Siraj v. State of Madras ( held:-

"Before a public servant, whatever be his status, is publicly charged with acts of dishonesty whichamount to serious misdemeanour and a first information is lodged against him, there must be somesuitable preliminary enquiry into the allegations by a responsible officer. The lodging of such areport against a person, specially one who occupied the top position in a department, even ifbaseless, would do incalculable harm not only to the officer in particular but to the department hebelonged to, in general...."

10. Both these decisions were noticed in Bhajan Lal's case and affirmed to the extent of somepreliminary enquiry being held before registration of a case against the public servant.

11. This court also had the occassion to deal with the issue in some of its decisions It held in SatishKumar Goel v. State Ors." (2000 (II) AD (DELHI) 841):-

"Thus the legal position appears to be that where allegations made in the complaint lodged beforethe police clearly and specifically discloses commission of a cognizable offence, the officer in chargeof police station is duty bound to register an FIR. However, where the information recorded in thecomplaint is uncertain and not clearly expressed it creates doubt as to whether information laid,discloses commission of cognizable offence there from, some enquiry should proceed beforeregistration of a case."

12. We also gathered the legal position by looking at several judgments of Supreme Court and thiscourt in the following terms in Sanjeev Kumar v. Commissioner of Police (2002) III AD 92.

"Form 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 interms of the decisions in the case of Bhajan Lal (supra) a First Information Report should berecorded (ii) if the information given is not clear or creates a doubt as to whether it discloses acommission 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 isfound that ex facie there is some un-truth in the same, an enquiry can be conducted beforeregistration of the case (iv) the enquiry need not partake that of an investigation. It only is apreliminary enquiry that can be held."






13. The position that emerges and which is reiterated is that Section 154(1) casts a statutoryobligation on an officer to enter substance of information laid before him disclosing commission ofcognizable offence in the prescribed form/book and to register an FIR. He may conduct someenquiry if he finds the information and allegations contained in the complaint/report indefinite,uncertain and vague raising doubts on the commission of cognizable offence. But where suchoffence was, prima facie, disclosed, he had no option to embark on full-fledged enquiry to ascetainthe genuineness or reliability of such information and allegations and draw his conclusions andrender the investigation redundant and to refuse registration of FIR. He would be breaching themandate of Section 154(1), thereby. Looking at it from the other angle, refusal to register an FIR isloaded with some serious consequences for informant/complaint. It seals the fate of his complaintfor good and deprives him of participation in investigation in which he could substantiate hisallegations. It also deprives him of a second opportunity to support his case before Magistrate in theevent Police Officer files a closure report in the FIR in which he is entitled to a notice and to opposesuch closure report. The officer is neither empowered nor could he be allowed to assume the role ofinvestigator before registration of FIR. His role begins with registering the FIR and ends withpresenting charge sheet or challan before the competent court on the alleged offence.

14. In the present case, all this seems to have been overlooked and given a go-by. Respondents claimto have conducted a full-fledged enquiry into the petitioner's complaint, and found no substance init. This amounts to putting cart before the horse and runs counter to the scheme of Chapter XII. It isnot their case that allegations in petitioner's case were indefinite and uncertain or ambiguouscausing any doubt on commission of cognizable offence. But their case, on the contrary, is that theyhad conducted an enquiry on their own and found the allegations in the petitioner's case withoutsubstance. The course adopted appears to be untenable on the face of it. Needless to emphasise thatit cannot left to sweet will of Police Officer to assume the role of trial court and sit over judgment onthe merit and substance of informant/complainant's information/complaint.

15. Next question that arises is whether inquest proceedings under Section 174 Cr.P.C. couldsubstitute and make-up for investigation exercise commending with registration of FIR underSection 154(1) Cr.P.C. Section 174 provides:-

"174. Police to inquire and report on suicide, etc. - (1) When the officer in charge of a police stationor some other police officer specially empowered by the State Government in that behalf receivesinformation that a person has committed suicide, or has been killed by another or by an animal orby machinery or by an accident, or has died under circumstances raising a reasonable suspicion thatsome other person has committed an offence, he shall immediately give intimation thereof to thenearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by anyrule prescribed by the State Government, or by any general or special order of the District orSub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, andthere, in the presence of two or more respectable inhabitants of the neighborhood shall make aninvestigation, and draw up a report of the apparent cause of death, describing such wounds,fractures, bruises, and other marks of injury as may be found on the body, and stating in whatmanner, or by what weapon or instrument (if any), such marks appear to have been inflicted."






16. An examination of provisions of chapter 12 shows that it provides for two types of investigation.The first begins with information in cognizable offence refered to Section 154(1) culminating inregistration of FIR and ends with the filing of charge sheet/challan before the court under Section173. The other commences with the inquest proceedings and ends with filing of inquest report by thePolice Officer before District Judge or SDM or by the Magistrate himself Another note worthydistinction is that investigation pursuant to Section 154(1) is into an offence and it is to ascertain theapparent cause of death under Section 174.

17. Section 174 and 175 offer a separate code in itself for inquiries in cases of accidental or sucidaldeath or death in suspicious circumstances. The inquest proceedings under had a very limited roleand object to ascertain the apparent cause of death and submit the report on this describing anyinjuries or wounds, fractures or bruises as may be found on the body of the deceased and theweapon used in this. If the Police Officer takes upon himself to conduct the inquest, he has to takepermission of the Magistrate and submit a report to DM or SDM. This report may or may not lead tor e g i s t r a t i o n o f a n F I R , b u t i t w o u l d n o t o p e r a t e a s a b a r t o s u c h r e g i s t r a t i o n o ninformant/complainant's information/complaint if it otherwise prima facie disclosed a cognizableoffence. Nor does it serve as a substitute for the investigative process that commences withregistration of an FIR. To the same effect are the provisions of Punjab Police Rules Ch. 25.31 to25.33 as applicable to Delhi.

18. This position is supported by several Supreme Court judgments including Podda Narayana'sholding thus:-

"A perusal of this provision would clearly show that the object of the proceedings under Section 174is merely to ascertain whether a person has died under suspicious circumstances or an unnaturaldeath and if so what is the apparent cause of the death. The question regarding the details as to howthe deceased was assaulted or who assaulted him or under what circumstances he was assaultedappears to us to be foreign to the ambit and scope of the proceedings under Section 174."

19. State counsel Ms. Mukta Gupta's submission that an FIR could not be registered on petitionersreport/complaint because of adverse inquest report is fallacious on the face of it. Because theinquest report has no bearing on the petitioners complaint. It is not a piece of substantive evidenceeven except under Section 145 of Evidence Act.

20. We accordingly hold that inquest proceedings and report have a limited purpose of ascertainingthe apparent cause of death in given cases and the investigator in these is not a substitute oralternative for investigation conducted pursuant to registration of FIR under Section 154(1) and thenature o f inquest report has no bear ing on the reg is t ra t ion o f a case/FIR on thecomplaint/information so long as it prima faice discloses commission of non-cognizable offence. Itis also held that the course adopted by respondents first to conduct a full-fledged local inquiry andthen to resort to inquest proceedings would not militate against petitioner's right to seekregistration of an FIR for investigation into the alleged death of his son. Respondent'scommunication dated 14.12.1999 is accordingly quashed and they are directed to register an FIR onpetitioners complaint (Crl.W.No. 714/96) and hand over the investigation of the same to Crime






Branch. Respondents-SHO is directed to handover the record of inquiry/inquest to DCP, CrimeBranch forthwith for necessary and expeditious follow up action under law.






shri abhay nath dubey vs state of delhi and ors. on 15 may, 2002

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