Does Jammu Police care for SC Judgment?

SHO Gharota fails to register FIR in cognizable offences, complainant running from pillar to post

13/03/2018

JAMMU, Mar 12: Every student of law is taught that the Police is duty bound to register an FIR in a cognizable offence and this was reiterated by the Constitution bench of the Supreme Court of India in Lalita Kumari Vs State of UP. The Supreme Court has gone to the extent that the even action must be taken against the Investigating Officer/ Police Officer who fails to register the FIR.
In this connection, JOURNEY LINE has come to know that a complaint has been filed with the SHO Police Station Ghrota with the subject - Complaint for registering the Fir under section 447, 427, 441, 504, 506 RPC with Section 147 RPC against (1) Balbir Singh S/o Rashpal Singh (2) Sanjay Manhas (3) Krishan Manhas sons of Balbir Singh (4) Shakuntla Devi W/o Balbir Singh residents of Ghou Manasa Tehsil Marh District Jammu (5) Bimla Kumari Sharma W/o Hans Raj Sharma R/o Shakti Nagar, Jammu (6) Mohd. Sardar S/o Haji Ismial (7) Mohd. Farooq S/o Haji Ismail (8) Mohd. Iqbal S/o Mohd. Mian Residents of Gaink Tehsil Bhalwal District Jammu & others.
The complainants namely Rohit Gupta Son of Dharamvir Gupta R/o Nowshera Rajouri, Mahinder Prakash S/o Dhani Ram, Ashish Gupta S/o Bharat Bushan, Yashpal Sharma S/o Subash Chander through Anwar Khan Son of Basmoo Khan R/o Mast Garh, Jammu have filed a complainant with SHO Gharota stating that they are owners and in peaceful possession of land measuring 134 Kanals comprising Khasra No. 2471 situate at Kote, Tehsil Bhalwal District Jammu which complainants have purchased under different sale deeds and three mutations i.e. two for 20 Kanals each and one for 5 Kanal total 45 Kanals i.e. mutation no. 1549-Jeem, 1562-Jeem, 1568-Jeem were attested by the revenue authorities.
Complainants are residents of Rajouri and have appointed Anwar Khan S/o Basmoo Khan as their attorney to look after and manage the said land which is owned and possessed by the complainants right from the date of the sale for the last over 12 years without interruption from any person.
It was alleged in the complaint .."on 27.02.2018 when the attorney of the complainant went to look after our land, the accused with criminal intention to occupy the land of the complainants have committed criminals trespass over the land of the complainants and were leveling the land of the complainants with JCBs and when the attorney of the complainants asked the accused how they have entered into the land of the complainants and did not allow the attorney of the complainants to enter in to the land. The attorney of the complainants immediately informed the complainants and they immediately ran to the place and found that the accused by informing an unlawful assembly will criminal intention to occupy the land of the complainants have committed criminal trespass and by leveling the land have caused a mischief punishable under section 447 and 427 RPC. It took two days for the complainants to find out the names and address of the accused. Accused by entering into criminal conspiracy and in order to cause wrongful gain to themselves and wrongful loss to the complainants with criminal intention entered into the land owned and possessed by the complainants and caused damage to the land of the complainants.
That the accused have committed offences punishable under Section 447, 427,441, 504, 506 RPC read with Section 147 RPC. .."
The complainant requested that an FIR be registered against the accused but till date the SHO Police Station Gharota has not regsitered the complaint whileas the offences are cognizable in nature and thus the Police in almost every case is contamacious towards the Apex Court Judgment and despite training sessions and lessons, the cops seem defiant.
It is only when a complainant approaches a Magsitarte and directions are issued under 156(3) CRPC that the FIR could be regisered but till then the Police offficer's discretion is such that the Constitution Bench Judgment is not respected which directs that the registering of FIR is mandatory in a cognizable offence case.
The Supreme Court's 5 Judges Constitutional Bench has held in Lalita Kumari Vs State of UP as follows (relevant excerpts):
.... 1) The important issue which arises for consideration in the referred matter is whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short "the Code" ) or the police officer has the power to conduct a "preliminary inquiry" in order to test the veracity of such information before registering the same?.....
9. In Ramesh Kumari v. State (NCT of Delhi) 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. Genuineness 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.
10. The 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 inquiry 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.�.......
84) Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police etc., are provided to be written and documented. For example, in case of arrest under Section 41(1)(b) of the Code, arrest memo along with the grounds has to be in writing mandatorily; under Section 55 of the Code, if an officer is deputed to make an arrest, then the superior officer has to write down and record the offence etc., for which the person is to be arrested; under Section 91 of the Code, a written order has to be passed by the concerned officer to seek documents; under Section 160 of the Code, a written notice has to be issued to the witness so that he can be called for recording of his/her statement, seizure memo/panchnama has to be drawn for every article seized etc.
85) The police is required to maintain several records including Case Diary as provided under Section 172 of the Code, General Diary as provided under Section 44 of the Police Act etc., which helps in documenting every information collected, spot visited and all the actions of the police officers so that their activities can be documented. Moreover, every information received relating to commission of a non-cognizable offence also has to be registered under Section 155 of the Code.
86) The underpinnings of compulsory registration of 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€™. Thus, any information received under Section 154(1) or otherwise has to be duly informed in the form of a report to the Magistrate. Thus, the commission of a cognizable offence is not only brought to the knowledge of the investigating agency but also to the subordinate judiciary.
87) The Code contemplates two kinds of FIRs. The duly signed FIR under Section 154(1) is by the informant to the concerned officer at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith.
88) The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:
a) It is the first step to "access to justice" for a victim.
b) It upholds the "Rule of Law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in 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.
d) It leads to less manipulation in criminal cases and lessens incidents of "ante-dated" FIR or deliberately delayed FIR....
111) In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above...”

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