DOLIBEN KANTILAL PATEL v. STATE OF GUJARAT

jail. Learned Senior Advocate Shri Naik also referred to the communication by the Consulate at Bombay and Center for Amarican Citizen.

4. Learned Senior Advocate Shri Naik pointedly referred to Section 154 of Cr.PC and submitted that when any cognizable offence is disclosed, FIR has to be registered and the police has no power to make any inquiry, and the investigation ought to have been made. Learned Senior Advocate Shri Naik also referred to the provisions of Sections 154, 157, 158 and 159 of Cr.PC and submitted that once the cognizable offence is disclosed, the FIR has to be registered and thereafter the matter would proceed as provided under Section 157. He submitted that the learned Magistrate may direct the investigation or the inquiry. However, all these provisions of the Code of Criminal Procedure are fragrantly violated and the inquiry has been made dehors the law. Learned Senior Advocate Shri Naik also referred to Section 41, which provide for arrest of a person and also referred to the conditions, which are required to be satisfied. He submitted that in light of the guidelines laid down in case of Joginder Kumar (supra), an amendment has been made in Section 41 of Cr.PC by way of Section 41(A), (B) and (C), which has been brought into force w.e.f. 1.11.2010. Therefore, learned Senior Advocate Shri Naik submitted that these provisions have not been followed, which is mandatory SCR.A/2206/2012 JUDGMENT procedure laid down and required to be followed. Learned Senior Advocate Shri Naik strenuously submitted that no woman could be arrested without a lady Police Constable or officer at night and no permission for arrest has been obtained. He strenuously submitted that it was not a case of an urgency or serious case of any terrorist activity where a female accused was required to be arrested at midnight. Learned Senior Advocate Shri Naik therefore submitted that there was no such need for not complying with the statutory provisions or the guideline.

5. In support of his submission, learned Senior Advocate Shri Naik has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of West Bengal and Others v. Committee For Protection of Democratic Rights, West Bengal And Others - (2010) 3 SCC 571 and pointedly referred to the observations made in paragraph 70 and submitted that as observed that the powers have been provided when there are violation of Article 21. He also referred to the observations made in paragraph 68 and submitted that the State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. Learned Senior Advocate Shri Naik therefore submitted that the existence of an alternative remedy is no bar to exercise jurisdiction under Article 226 of the SCR.A/2206/2012 JUDGMENT Constitution of India.

6. Similarly, learned Senior Advocate Shri Naik has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Ashok Kumar Todi v. Kishwar Jahan And Others - (2011) 3 SCC 758 and made the submissions referring to the observations made in paragraphs 48 to 51. He emphasized the observations made in paragraph 48: "48. Under the scheme of the Code, investigation commences with lodgment of information relating to the commission of an offence. If it is a cognizable offence, the officer in charge of the police station, to whom the information is supplied orally has a statutory duty to reduce it to writing and get the signature of the informant. He shall enter the substance of the information, whether given in writing or reduced to writing as aforesaid, in a book prescribed by the State in that behalf. The officer-in- charge has no escape from doing so if the offence mentioned therein is a cognizable offence and whether or not such offence was committed within the limits of that police station. But when the offence is non-cognizable, the officer in charge of the police station has no obligation to record it if the offence was not committed within the limits of his police station. Investigation thereafter would commence and the investigating officer has to go step by step."

7. Therefore, learned Senior Advocate Shri Naik has also relied upon the judgment of the Hon'ble Apex Court in case of State of Haryana and Others v. Ch. Bhajan Lal and Others - AIR 1992 SC 604 = 1992 (Sup) 1 SCC 335-State of Haryana and Ors. v. Bhajan Lal and Others and again emphasized SCR.A/2206/2012 JUDGMENT the observations made in the said judgment. It was strenuously emphasized the observations regarding the registration of the FIR and he pointedly referred to the observations: "30. 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 a 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." Learned Senior Advocate Shri Naik emphasized the observations made in paragraph 31 with regard to Section 154 of the Code of Criminal Procedure and submitted that it has been observed that the word "information" is used without any qualifying word and therefore the FIR ought to have been registered for the alleged offence. Learned Senior Advocate Shri Naik also submitted that the procedure has been very well provided in the Cr.PC. Learned Senior Advocate Shri Naik submitted that Section 154 of Cr.PC required the officer in- charge of the police station to register the FIR for the offence and Section 157(b) and provides that if the officer-in-charge of the police station feels that there is no sufficient ground for entering into a investigation, he may not investigate the case and he must in that case submit a report to the learned Magistrate in compliance with the statutory provisions. Learned Senior Advocate Shri Naik submitted that there is no SCR.A/2206/2012 JUDGMENT such report and therefore the FIR under Section 154 ought to have been registered. Learned Senior Advocate Shri Naik also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Prakash Singh Badal and Another v. State of Punjab and Others - (2007) 1 SCC 1 and pointedly referred to the observations made in paragraphs 60, 63 and 64. He emphasized the observations: "66. 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 a Section 154(1) of the Code, the police officer concerned 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."

8. Learned Senior Advocate Shri B.B.Naik again submitted that the officer in-charge of the police station is obliged to register the FIR and proceed further as per the Code of Criminal Procedure and it is the duty cast upon him. He emphasized the observations made in paragraph 68 and submitted that as observed in this judgment, once the information disclosing a cognizable offence is laid before the officer in charge 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.

9. Learned Advocate Shri Naik also referred to and relied upon the SCR.A/2206/2012 JUDGMENT judgment of the Hon'ble Apex Court reported in (2006) 2 SCC 677 - Ramesh Kumari v. State (Delhi) and Ors. to support his submissions, both - regarding the mandatory nature of Section 154 of Cr.PC for registration of FIR and also to support his submission that availability of alternative remedy is no bar to exercise jurisdiction by the High Court under Article 226 of the Constitution of India. He also referred to the judgment of the Hon'ble Apex Court reported in (2006) 12 SCC 229 - Lallan Chaudhary and Others v. State of Bihrar and Another. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1979 SC 1791 – Ram Lal Narang v. State (Delhi Admn.) Learned Senior Advocate Shri B.B.Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 11 SCC 687 - Prem Prakash Alias Lillu And Another v. State of Haryana and empmasized the observations made in paragraph 22 and submitted that as observed in this judgment, as per Section 154 Cr.PC, it is obligatory for the police to register a case when the facts constituting a cognizable offence are brought to the notice. Learned Senior Advocate Shri Naik has submitted that as none of the guidelines, which are required to be fulfilled for arrest of a female accused have been complied with and as the arrest was without a lady police constable or officer, the same was illegal and it would amount to abduction and wrongful SCR.A/2206/2012 JUDGMENT confinement. Learned Senior Advocate Shri Naik has therefore referred to various other provisions for the alleged offence under Sections 342, 441, 445, 447, 364, 383, 387 and 398. Learned Senior Advocate Shri B.B.Naik has stated that the subsequent judgment reported in (2012) 7 SCC 407 - Samaj Parivartan Samudaya and others v. State of Karnataka and others referred to the inquiry to be made by the Police Officer for his satisfaction before registration of the FIR under Section 154 was with reference to CBI, where the Delhi Special Police Establishment Act, 1946 provide for such an inquiry.

10.Learned Senior Advocate Shri B.B.Naik emphasized referring to Article 21 of the Constitution of India that no person shall be deprived of the liberty except according to the procedure established by law, and the arrest is in violation of the mandatory provision itself would be illegal and it would amount to illegal detention. He therefore submitted that the Hon'ble Apex Court has made the observations in this regard and as referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1993 (2) SCC 746 – Nilabati Behera (Smt.) Alias Lalita Behera (Through The Supreme Court Legal Aid Committee) v. State of Orissa and Others, referring to the custodial torture and death and submitted that investigation was handed over to the CBI. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2010) 2 SCC SCR.A/2206/2012 JUDGMENT 200 - Rubabbuddin Sheikh v. State of Gujarat and Others, as well as judgment of the Hon'ble Apex Court reported in (2011) 13 SCC 329 - Rajender Singh Pathania And Others v. State (NCT of Delhi) and Others and emphasize the observations made in Head Note B regarding as and when the CBI investigation can be directed. He submitted that the CBI investigation could be held when the Court is satisfied that the opposite parties are very powerful and influential persons or State authorities like top police officials are involved and investigation has not proceeded in proper direction or it has been biased. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 5 SCC 79 - Narmadabai v. State of Gujarat and Others. Learned Senior Advocate Shri Naik strenuously submitted that when there is a improper investigation or the ends of justice require, the investigation can be handed over to the CBI. Learned Senior Advocate Shri Naik has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (1995) 1 SCC 58 - Commissioner of Sales Tax, J&K and Others v. Pine Chemicals Ltd. and Others and referring to the observations made in paragraph 17, he submitted that the judgment of three judges was binding upon the judgment and therefore though the judgment in case of Ram Lal Narang v. State (Delhi Admn.) [supra], which has not been considered SCR.A/2206/2012 JUDGMENT in a subsequent judgment as a binding precedent and therefore the latter judgment would be per incuriam. Similarly, he submitted that the other judgment which has not considered the earlier judgment in case of Ram Lal Narang v. State (Delhi Admn.) [supra] while deciding the point involved referring to Section 154 Cr.PC would be per incuriam. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2004) 1 SCC 681 - Babu Parasu Kaikadi (Dead) By LRS. v. Babu (Dead) Through LRS. to reiterate his submissions about the precedent that the judgment of three judges Bench was binding to the coordinate Bench. He also referred and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 7 SCC 639 - State of Madhya Pradesh v. Narmada Bachao Andolan and Another and emphasized the observations with regard to the precedent made in paragraphs 64 to 68. Learned Senior Advocate Shri Naik has emphasized the observations: "67. Thus, "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."

11.Learned Senior Advocate Shri Naik has also referred to and SCR.A/2206/2012 JUDGMENT relied upon the judgment of the Hon'ble Apex Court reported in (2012) 4 SCC 516 - Rattiram and Others v. State of Madhya Pradesh and emphasized the observations in paragraphs 30 to 32. Learned Senior Advocate Shri Naik referred to paragraph 33, which has a reference to another