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No writ is maintainable when alternative remedy is available in criminal procedure code when police fail to register a case =It is seen from the discussion that the police officer in charge of a police station is obliged to register a case and then to proceed with the investigation subject to the provisions of Sections 156 and 157 of the Code. It is further seen that if the police officer in-charge of a police station refuses to exercise the jurisdiction vested in him and register the case on information of cognizable offence and violates the statutory right, the person aggrieved, can send the substance of the same to the higher authority, who, in turn, if satisfied that the information forwarded to him discloses a cognizable offence, can investigate the case himself or direct the investigation to be made by a subordinate officer. The elaborate discussion clearly shows that before registration of the FIR, an officer should be satisfied. In other words, if the facts are such which require some inquiry for the satisfaction about the charges or allegations made in the FIR or he may have entertained a reasonable belief or doubt, then he may make some inquiry. To put it clear, by virtue of the expression “reason to suspect the commission of an offence”, we are of the view that commission of cognizable offence, based on the facts mentioned has to be considered with the attending circumstances, if available. In other words, if there is a background/materials or information, it is the duty of the officer to take note of the same and proceed according to law. It is further made clear that if the facts are such which require some inquiry for the satisfaction about the charges or allegations made in the FIR then such a limited inquiry is permissible. ; With regard to the direction for investigation by the CBI, a Constitution Bench of this Court in State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571 clarified that despite wide powers conferred by Articles 32 and 226 of the Constitution, the Courts must bear in mind certain self- imposed limitations on the exercise of such constitutional powers. Insofar as the question of issuing a direction to CBI to conduct an investigation, the Constitution Bench has observed that “although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has leveled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise, the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”- Having regard to the Scheme of the Code, various provisions as to the course to be adopted and in the light of the peculiar/special facts and circumstances which we have already noted in the earlier paras, we are satisfied that the High Court was fully justified in directing the appellant to avail the recourse to the remedy as provided in the Code by filing a complaint before the Magistrate. We are also satisfied that the High Court, in order to safeguard the stand of the appellant, issued certain directions to remedy her grievance against the persons concerned. We confirm the decision of the High Court in the light of the facts relating to the background of the case, particularly, the land dispute, the complaint regarding the same and various subsequent circumstances including her silence about the non-disclosure of the alleged rape before her mother on two occasions and before the female doctors at Civil Hospital as well as Sabarmati Jail and also before the Magistrate. It is further made clear that while affirming the decision of the High Court, it cannot be presumed that we are underestimating the grievance of the appellant herein and it is for the Magistrate concerned to proceed in accordance with the provisions of the Code and arrive at an appropriate conclusion. 13) With the above observation, the appeal is dismissed.

published in http://judis.nic.in/supremecourt/filename=40485

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 810 OF 2013
(Arising out of SLP (CRL.) No. 9256 of 2012
Doliben Kantilal Patel …. Appellant(s)
Versus
State of Gujarat & Anr. ….
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the final judgment and
order dated 08.11.2012 passed by the High Court of Gujarat
at Ahmedabad in Special Criminal Application No. 2206 of
2012 whereby the High Court dismissed the petition filed by
the appellant herein.
3) Brief facts:
(a) The appellant herein is an American Citizen of Indian
origin who came to India on 09.03.2010 to see her ailing
1Page 2
father-Kantilal Ambalal Patel. Kantilal Ambalal Patel is
having a number of properties in the form of lands, flats and
societies in the State of Gujarat. Arvind Jani and Jayesh Dave
are very close friends of the father of the appellant. They
cheated the father of the appellant in respect of a land
dealing at Rajkot against which Civil Suit No. 186 of 2010 was
filed in the Court at Rajkot wherein the said suit was decreed
in the favour of the appellant herein. The present appeal
pertains to the land situated at Vadodra in the name of
Gayatrinagar Cooperative Housing Society Limited (group of
five societies).
(b) Since certain disputes arose with respect to the above
said land at Vadodra which, as per the appellant herein,
belongs to her father and the appellant had a joint account
with him, one Divyangbhai Jha filed an FIR being CR No.
5/2012 dated 21.05.2012 registered with Gandhinagar Police
Station under Sections 406, 409, 420, 465, 467, 468, 174,
120B and 477A of the Indian Penal Code, 1860 (in short ‘the
IPC’) against the appellant herein and 7 other accused
persons in respect of grabbing of lands of cooperative
2Page 3
societies using forged/fabricated government permission
letters.
(c) On 23/24.05.2012, the appellant herein was arrested at
about midnight. On 24.05.2012, she was produced before
the Judicial Magistrate and an application for remand was
preferred by CID Crime, Ahmedabad. On the very same day,
Judicial Magistrate granted remand for a period of 5 days.
(d) It was alleged by the appellant herein that from the
very first day of remand, she was repeatedly raped in police
custody by Jayesh Dave, Divyangbhai Jha (the complainant in
abovesaid FIR), A.A. Shaikh, the investigating officer and also
by an unknown person. However, Arvind Jani was present
throughout the period of remand. It was further alleged that
after the period of remand, she was sent to the Central Jail,
Sabarmati, Gujarat without following the procedures
prescribed under law.
(e) On 20.06.2012, she wrote an e-mail to Ms. Deepa
Mehta, U.S Citizens Services in U.S Consulate, Mumbai
describing the entire incident of rape and the atrocities
meted out to her. It was also alleged in the said e-mail that
3Page 4
Arvind Jani and Jayesh Dave, in connivance with one Amam
Shah, owner of a vernacular daily known as Gujarat
Samachar got the complaint filed directly to the CID (Crime &
Railways) to the effect that Kantilal Ambalal Patel and others
are not the office bearers of the abovesaid cooperative
society at Vadodra. On 11.07.2012, the appellant herein was
released on bail by the High Court of Gujarat.
(f) On 14.07.2012, the appellant filed a complaint under
Section 376 read with Section 120B of the IPC to the Police
Inspector, Meghani Nagar Police Station, Ahmedabad
narrating the alleged offence cited above to have occurred
during the period of remand. On the very same date, based
on the instructions of the Additional Commissioner of Police,
Sector II, the investigation in respect of the above offence
was transferred to the Mahila Police Station. It was alleged by
the appellant herein that in spite of the complaint regarding
a serious offence of rape, no FIR was lodged at Mahila Police
Station. Vide notices dated 15/16.07.2012, the Police
Inspector, Mahila Police Station called her to record her
4Page 5
statement, but she refused to give any statement on the
pretext of non-filing of FIR.
(g) Being aggrieved by the non-filing of FIR, the appellant
herein filed Special Criminal Application No. 2206 of 2012
before the High Court praying for a direction to the
authorities concerned to register an FIR and also to refer the
matter to the CBI for investigation. In the meantime, on
27.07.2012, Chief of the American Citizens Services in the
American Consulate, in pursuance of the e-mail dated
20.06.2012 forwarded an e-mail to gain access to the
appellant herein. The High Court, vide order dated
08.11.2012, dismissed the petition filed by the appellant
herein. Being aggrieved by the order of the High Court, the
appellant herein has preferred this appeal by way of special
leave.
4) Heard Mr. Jaideep Gupta, learned senior counsel for the
appellant and Mr. L. Nageshwar Rao, learned senior counsel
for the respondents.
5) In order to understand the claim of the appellant, it is
useful to mention the relief prayed for in the writ petition
5Page 6
filed under Article 226 of the Constitution of India. In the said
writ petition, she prayed for appropriate direction to the
authorities concerned, viz., the Police Inspector (Respondent
No. 2 therein), Meghani Nagar Police Station, Ahmedabad,
Gujarat to register an FIR for the offence punishable under
Sections 376, 114 and 120B of the IPC in connection with the
written complaint dated 14.07.2012 given by her and,
thereafter, to transfer the investigation of the said registered
FIR to the CBI for further investigation.
6) It is not in dispute that with reference to the land
situated at Vadodra, a complaint has been filed against the
appellant and her father which was registered as FIR being
CR No.5/2012 at Gandhinagar Police Station. It is further
seen that the appellant is an NRI/foreign national of Indian
origin and she had been roped in the earlier complaint
relating to the land dispute because she had a joint account
with her father. Though it is pointed out that in order to
pressurize the appellant for certain other land disputes at
Rajkot, she has been arrested and raped, since we are
concerned about her grievance about the alleged rape in
6Page 7
police custody, there is no need to elaborate the details
regarding the FIR being CR No. 5/2012. It is the grievance of
the appellant that the arrest was made at midnight without
the assistance of lady police personnel and during the period
of police custody, she was raped by the Investigating Officer
and other police personnel for which a complaint dated
14.07.2002 was made to Respondent No. 2 herein but no
action was taken on the said complaint. Being aggrieved by
the non-registration of the complaint, the appellant
approached the High Court, under Article 226 of the
Constitution, praying for the reliefs mentioned above. It is
also highlighted that inasmuch as the police personnel are
involved in the crime and in view of the attitude of the State
police in not registering her complaint, she prayed for
investigation by the CBI.
7) It is the specific stand of the respondent-State that the
original complaint was made by one Divyangbhai Jha which
was registered as CR No. 5/2012 under Sections 420, 406
and 120B of IPC against the father of the appellant and the
appellant herein with regard to the alleged land transaction
7Page 8
at Vadodra. It is their further claim that thereafter, she had
been arrested and at the time of her actual arrest, though
female police personnel were not present but immediately
thereafter she was taken to the nearest police station where
female police personnel were present and they remained
with the accused throughout. It is pointed out by the State
that there was no complaint by the appellant with regard to
any harassment from the place of her arrest till she was
taken to the nearest police station and there was also no
violation of the guidelines or statutory provisions. It is further
pointed out that after her arrest on 24.05.2012, she was
produced before the Magistrate and, thereafter, her remand
was granted for 5 days, i.e., from 24.05.2012 to 29.05.2012
and on 29.05.2012, again she had been produced before the
Magistrate but at no point of time, no complaint about
harassment or alleged offence of rape has been made to the
judicial officer. It is also pointed out that during the period of
remand, she was taken to her house twice where her mother
was also present and she had occasion to inform the same to
her, but no grievance was made to anyone. Likewise, on
8Page 9
29.05.2012, when she was produced before the Magistrate
and was remanded to the judicial custody, she had not made
any statement or complaint to the Magistrate about the
alleged offence of rape during the custody. It is further
pointed out that she had not disclosed the same to anyone
including her mother, judicial officer or even to the doctors
who have examined her. Her medical examination was also
done by the Doctors at the Civil Hospital on 26.05.2012 and
29.05.2012. It is further pointed out that thereafter, in
Sabarmati Jail, she was examined by female jail doctor on
29.05.2012, 01.06.2012 and 02.06.2012. It is further pointed
out that even in the bail application filed before the High
Court, no such grievance has been made with regard to the
alleged offence of rape while she was in custody. Finally, it is
pointed out by the State that when the statement of the
appellant was sought to be recorded on 14.07.2012, she did
not respond and again when she was called on 16.07.2012
and a reminder was sent, she was not present at her house
on 17.07.2012 and even after further efforts, she was not
available. By pointing out all these instances, it is projected
9Page 10
by the State that if the appellant has any grievance that her
complaint has not been registered as an FIR, the Code of
Criminal Procedure, 1973 (in short ‘the Code’) provides that
an application could be made to the Magistrate having
jurisdiction who may proceed after making an inquiry or after
getting further materials. In view of the same, it is pointed
out that the High Court was fully justified in dismissing the
petition filed under Section 226 and directing the appellant
to avail the remedy provided under the Code before the
court of Magistrate.
8) It is clear that if it is a case of rape at the hands of the
police officials that too in the custody, undoubtedly, the
persons concerned are answerable for not registering her
written complaint. We have already referred to the earlier
complaint by some of the parties relating to the land dispute
which resulted in the FIR being CR No. 5/2012 for which the
appellant and her father were arrested. We also noted that
when the appellant had various opportunities of disclosing
her grievance including the alleged offence of rape to various
10Page 11
persons, viz., her mother, female medical officers and judicial
Magistrate, admittedly, such remedy was not availed by her.
9) It is the assertion of the senior counsel for the appellant
that when the information regarding a cognizable offence is
laid before the officer in-charge of a police station under
Section 154 of the Code, he is bound to register it as an FIR
without any inquiry and he has no discretion to even consider
whether the allegations made are prima facie borne out or
not. In order to answer this question, we have to examine the
background of the case which we have already adverted to
including the FIR being CR No. 5/2012 relating to the land
dispute and we have also pointed out that when the
appellant had various opportunities to disclose the alleged
offence of rape or misdeeds, it has not been disclosed
throughout the period neither to her mother when she was
taken to her home twice during the period of remand nor to
the female doctors of the Civil Hospital who examined her
nor to the doctors of the Jail authorities. We have also noted
that even at the time of production before the Magistrate
after the completion of the period of remand and
11Page 12
subsequently, when she was remanded to the judicial
custody, nothing had been disclosed about any such misdeed
or ill-treatment or harassment.
10) An elaborate discussion had been made with regard to
Section 154 of the Code in State of Haryana and Ors. vs.
Bhajan Lal and Ors., 1992 Supp (1) SCC 335. It is seen
from the discussion that the police officer in charge of a
police station is obliged to register a case and then to
proceed with the investigation subject to the provisions of
Sections 156 and 157 of the Code. It is further seen that if
the police officer in-charge of a police station refuses to
exercise the jurisdiction vested in him and register the case
on information of cognizable offence and violates the
statutory right, the person aggrieved, can send the
substance of the same to the higher authority, who, in turn, if
satisfied that the information forwarded to him discloses a
cognizable offence, can investigate the case himself or direct
the investigation to be made by a subordinate officer. The
elaborate discussion clearly shows that before registration of
the FIR, an officer should be satisfied. In other words, if the
12Page 13
facts are such which require some inquiry for the satisfaction
about the charges or allegations made in the FIR or he may
have entertained a reasonable belief or doubt, then he may
make some inquiry. To put it clear, by virtue of the
expression “reason to suspect the commission of an
offence”, we are of the view that commission of cognizable
offence, based on the facts mentioned has to be considered
with the attending circumstances, if available. In other
words, if there is a background/materials or information, it is
the duty of the officer to take note of the same and proceed
according to law. It is further made clear that if the facts are
such which require some inquiry for the satisfaction about
the charges or allegations made in the FIR then such a
limited inquiry is permissible.
11) With regard to the direction for investigation by the CBI,
a Constitution Bench of this Court in State of West Bengal
and Ors. vs. Committee for Protection of Democratic
Rights, West Bengal and Ors., (2010) 3 SCC 571 clarified
that despite wide powers conferred by Articles 32 and 226 of
the Constitution, the Courts must bear in mind certain self-
13Page 14
imposed limitations on the exercise of such constitutional
powers. Insofar as the question of issuing a direction to CBI
to conduct an investigation, the Constitution Bench has
observed that “although no inflexible guidelines can be laid
down to decide whether or not such power should be
exercised but time and again it has been reiterated that such
an order is not to be passed as a matter of routine or merely
because a party has leveled some allegations against the
local police. This extraordinary power must be exercised
sparingly, cautiously and in exceptional situations where it
becomes necessary to provide credibility and instill
confidence in investigations or where the incident may have
national and international ramifications or where such an
order may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise, the CBI would
be flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
14Page 15
12) Having regard to the Scheme of the Code, various
provisions as to the course to be adopted and in the light of
the peculiar/special facts and circumstances which we have
already noted in the earlier paras, we are satisfied that the
High Court was fully justified in directing the appellant to
avail the recourse to the remedy as provided in the Code by
filing a complaint before the Magistrate. We are also
satisfied that the High Court, in order to safeguard the stand
of the appellant, issued certain directions to remedy her
grievance against the persons concerned. We confirm the
decision of the High Court in the light of the facts relating to
the background of the case, particularly, the land dispute,
the complaint regarding the same and various subsequent
circumstances including her silence about the non-disclosure
of the alleged rape before her mother on two occasions and
before the female doctors at Civil Hospital as well as
Sabarmati Jail and also before the Magistrate. It is further
made clear that while affirming the decision of the High
Court, it cannot be presumed that we are underestimating
the grievance of the appellant herein and it is for the
15Page 16
Magistrate concerned to proceed in accordance with the
provisions of the Code and arrive at an appropriate
conclusion.
13) With the above observation, the appeal is dismissed.
……………….…………………………J.
(P. SATHASIVAM)
.…….…………………………………J.
(M.Y.EQBAL)
NEW DELHI;
JULY 1, 2013.
16

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