IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION – TO LODGE FIR/COMPLAINT) NO. 1410 of 2016
IDRISHBHAI SAIFUDDINBHAI HATHI….Applicant(s)
STATE OF GUJARAT 2….Respondent(s)
MR MA SAIYAD, ADVOCATE for the Applicant(s) No. 1
MS BENAZIR M HAKIM, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
- Petitioner approached this Court under Article 226 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure seeking lodgment of the complaint forthwith on the strength of his representation made to the P.I,Dholka police station on 23.2.2016.
- Brief facts are as follows:-
2.1 The petitioner is an agriculturist. He possesses savings bank account No.210910100002143 in Bank of India at Pisawada Branch.
2.2 It is the say of the petitioner that on 16.2.2015 when he went to ATM,SBI, Bazar Branch to withdraw Rs.1000/-, the machine was not working properly. He managed to get the amount of Rs.1000/- after inserting the card twice or thrice with the help of some persons. It is his say that to his shock he realized that sum of Rs.50,000/- had been deposited from his account on 16.2.2016. Therefore, he rushed to his bank to find out the truth of the matter only to find another shock that the card, which he was carrying was not that of his but that of a third person. His card had been taken away by those who camouflaged to help him. He,therefore, had lodged a complaint of cheating by giving a representation to P.I.Dholka police station and as no FIR is lodged, the petitioner is before this Court seeking following reliefs:-
“9. In the aforementioned premises the petitioner most humbly prays before this Honourable Court that this Honourable Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction and there by:
(A) THIS HONOURABLE COURT MAY BE PLEASED TO order and direct the respondent No.2 and 3 to consider the representations made by the petitioner and lodge the complaint (Annexure “A”) forthwith in the interest of justice.
(B) This Hon’ble Court May Be Pleased To Direct respondent Nos.2 and 3 to take strict action against the offenders in the interest of justice.
(C) This Hon’ble Court may be pleased to award the costs throughout.
(D) This Hon’ble Court may be pleased to grant such other and further relief’s as deemed fit and proper in the interest of justice.”
- Learned advocate Mr.M.A.Saiyed appearing for the petitioner has urged that this not only concerns the offence of fraud and cheating but also relates to cyber-crime. He has also placed in service, a communication shot by the Police Commissioner, Ahmedabad on 5.5.2012 to emphasize that every time there is question of cyber-crime, ordinarily no complaint is being registered.
- Learned Additional Public Prosecutor does not dispute that whenever the prima facie cognizable offence is made out, the concerned officer requires to lodge a complaint.
- Having thus heard learned advocates for both the sides, firstly this Court needs to profitably reproduce the findings and directions issued by the Apex Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and another reported in AIR 2014 SC 187.
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.”
- As can be noted from the representation made by the present petitioner addressed to P.I., Dholka police station reveals that after the incident of 16.2.2016 the complaint so far has not been lodged. It will be necessary to direct the concerned P.I. to look into the aspect and register the complaint without further loss of time when cognizable offence is made out. It is to be noted that the preliminary inquiry is permissible only to the extent of finding out as to whether the cognizable offence gets revealed. While so doing it, he shall have to also bear in mind the communication of Police Commissioner, Ahmedabad City dated 5.5.2012, which is as follows:-
” The Office of the Police Commissioner, Shahibaug, Ahmedabad City.
Telephone No.25628783, 25627873, Email :- rdr-
email@example.com No.G/725/CP/2536/2012 Date :- 050.05.2012 Sub :- To take action immediately in connection with the application/representation given by the Applicant/Victim regarding the Cyber Crime.
Ref. :- Letter No. Cyber Cell/Alolika/Appl./78/12, dtd.01.05.2012 of The Additional Director General of Police, C.I.D., Crime and Railways, Gandhinagar, Gujarat State.
In connection with the aforesaid subject, it is stated that, the number of the incidents pertaining to Cyber Crime has increased in today’s world. At present, each person uses internet, mobile and other gadgets relating to electronic media extensively and is having knowledge. Under such circumstances, it has come to the notice of the Additional Director General of the Police, C.I.D., Crime, Gandhinagar, Gujarat State that, when the victim approaches the Police Station to lodge complaint, the Police inform the victim that, the offence relates to Cyber Crime, we cannot do anything in it, you should contact to Cyber Cell, Gandhinagar / City Crime Cyber Cell and in many cases, the victim is not even heard.
Recently, the P.S.I./P.I., have also been given the training regarding the investigation of ‘E’ Mail Tracing and Cyber Crime. Its purpose is to take speedy action in the offences/applications pertaining to Cyber Crime being taken place in City/District. In fact, as per the amendment made in the ‘I.T.Act’, now the Officer of the Police Inspector Cadre can investigate the offence under the I.T.Act.
Therefore, when the victim comes to the police station in connection with the incidents pertaining to cyber crime, his application/representation may be taken into consideration by the Senior/Second Police Inspector immediately and he should conduct proper investigation of the application or get it conducted, if he finds it proper, he should register the offence and conduct the investigation thereof and in complicated cases, if necessary, he should send the detailed report through the Deputy Police Commissioner so that, this office may give proper direction with regard to hand over the investigation of the important cases to the City Cyber Cell. All the Police Station Officers are instructed to take special note thereof.
Sd/- (S.K.Saikiya), The Police Commissioner, Ahmedabad City.
To, The Police Inspectors, All the Police Stations, Ahmedabad City.
Copy forwarded for information and for verification during visit.
The Joint Police Commissioner, Crime Branch, Section – 1 and 2, Head Quarter, Special Branch, Ahmedabad City, -illegible-.”
- As the police officers and other personnels are already trained to investigate into the offence which concerned the cyber-crime as also in wake of directions rendered in the case of Lalita Kumari vs. Government of Uttar Pradesh and another(supra), the task of registration of the complaint (FIR) shall be undertaken at the earliest by following aforementioned directions.
- At this stage, it is mandatory for the very police station to register the crime even if it is cyber-crime emerging from the complaint. It is only in case of most complicated cases that the permission can be sought of the Police Commissioner for referring the matter to the cyber-crime cell.
- Petition is allowed to the extent above. Disposed of accordingly.
Direct service is permitted.
(MS SONIA GOKANI, J.)