VINOD KUMAR PANDEY & ANR. versus SEESH RAM SAINI & ORS.

Summary

Two CBI officers challenged orders of a Single Judge of the Delhi High Court directing registration of an FIR against them on complaints of coercion and of preparing a false seizure memo, after a CBI preliminary inquiry had found no offence. The Supreme Court declined to interfere under Article 136: the High Court's prima facie finding that cognizable offences were made out justified the direction, a preliminary inquiry report cannot oust a constitutional court's power to reach its own conclusion, and alternative remedies are no absolute bar. The orders were modified so that the Delhi Police (not its Special Cell) investigates, the inquiry report may be looked into but is not conclusive, and no coercive steps are taken while the officers cooperate.

Issues

1. Whether the High Court, under Article 226 of the Constitution read with Section 482 CrPC, could direct registration of an FIR against the appellant officers on a prima facie finding that cognizable offences were made out, despite a CBI preliminary inquiry report concluding that no offence was disclosed.
2. Whether the complainants' failure to exhaust alternative remedies before approaching the High Court barred the direction to register an FIR.
3. Whether the CBI should be impleaded in the appeals to defend its inquiry report and its officers.
4. Whether the delay of over twelve years in challenging the Single Judge's orders, spent pursuing Letters Patent Appeals later dismissed as not maintainable, should be condoned.
5. Whether the direction that the Special Cell of the Delhi Police investigate, and that the CBI inquiry report be excluded from consideration, should stand.

Provisions considered

• Section 154, Code of Criminal Procedure, 1973Section 154 requires information relating to the commission of a cognizable offence to be recorded. Following Lalita Kumari and later decisions, the Court held that registration of an FIR is mandatory where the information discloses a cognizable offence; no preliminary inquiry is permissible in that situation, and the police need not test the genuineness or credibility of the information before registering it. A preliminary inquiry is permissible only where the information does not disclose a cognizable offence but indicates the need to ascertain facts. (¶¶ 27, 28, 32, 40)
• Section 482, Code of Criminal Procedure, 1973The writ petitions were filed under Article 226 read with Section 482 CrPC. The Court observed that High Courts should discourage such petitions where alternative remedies exist, but that an alternative remedy is not an absolute bar to invoking the High Court's extraordinary or inherent jurisdiction, particularly where the police declined to act on the complaints. (¶¶ 5, 29, 30, 31, 33, 34)
• Article 226, Constitution of IndiaThe High Court exercised its constitutional jurisdiction to direct registration of an FIR on being satisfied that cognizable offences were prima facie made out. The Court held that such an exercise of discretion by a constitutional court is not to be interfered with lightly, and that a CBI preliminary inquiry report cannot oust the constitutional court's power to reach its own conclusion on the material. (¶¶ 28, 29, 34, 36)
• Article 136, Constitution of IndiaIn its discretionary jurisdiction under Article 136, the Court found no good reason to interfere with the High Court's direction for registration of the FIR, while modifying ancillary directions. (¶¶ 34, 38)

Held

• Time spent bona fide pursuing Letters Patent Appeals that were later dismissed as not maintainable may technically not be a good cause for condoning delay, but where there is no wilful or deliberate delay or default and the appellants were vigilant of their rights, the delay in approaching the Supreme Court against the Single Judge's orders was ignored and the matter heard on merits. (¶¶ 11, 12, 13)
• A respondent or proforma respondent may support the impugned judgment but cannot assail it in that capacity. The CBI, which was a party before the High Court and had not challenged the orders, was not the party aggrieved by a direction to register an FIR against officers on deputation to it in their personal capacity; its inquiry report was not under challenge. Impleadment of the CBI was therefore refused and the objections raised on its behalf (including under Section 197 CrPC and the Delhi Police Act) were not considered. (¶¶ 17, 18, 19, 20)
• Where allegations pertain to abuse of official position, the matter falls within the category of cognizable offences to be inquired into, and a preliminary inquiry before registration of the FIR is not necessary. If the information or preliminary report discloses a cognizable offence, the police are duty bound under Section 154 CrPC to register an FIR without delay, and are not required to go into the genuineness or credibility of the information, which is not a condition precedent for registration. (¶¶ 27, 32)
• A preliminary inquiry report of the CBI submitted before registration of an FIR is not ordinarily contemplated in law and is not a conclusive report; it cannot oust the power of a constitutional court to record its own conclusion on whether a cognizable offence is made out on the material or allegations in the complaints. (¶ 28)
• High Courts should discourage writ petitions or petitions under Section 482 CrPC where alternative remedies are available, but an alternative remedy is not an absolute bar to the High Court's jurisdiction under Article 226 or Section 482 CrPC. The ground of alternative remedy is no substitute in law for refusing to register a case when a citizen's complaint discloses a cognizable offence, and approaching a court without exhausting alternative remedies is a procedural irregularity, not an illegality, where the court is competent to order registration of an FIR. (¶¶ 29, 30, 31)
• Where a constitutional court has exercised its discretion to entertain petitions and direct registration of an FIR on being satisfied that a cognizable offence is prima facie made out, there is no good reason to interfere. The High Court's opinion on the commission of cognizable offences is only a prima facie opinion and must be treated as such, so as not to affect the investigating officer's discretion after investigation. Registration of the FIR causes no prejudice to the accused officers, who may participate in the investigation; a closure report or chargesheet may follow, and either can be addressed before the appropriate forum. (¶¶ 34, 35, 36)
• An offence allegedly committed in the year 2000 and never allowed to be investigated should not go uninvestigated, particularly where officers on deputation to the CBI are involved; justice must not only be done but be seen to be done, and those who investigate must sometimes also be investigated to keep alive public faith in the system. (¶ 37)
• Since the Special Cell of the Delhi Police is meant to investigate matters concerning terrorism, the investigation on the FIR is to be conducted by the Delhi Police itself by an officer not below the rank of Assistant Commissioner of Police. Treating the CBI Joint Director's inquiry as a preliminary inquiry in terms of Lalita Kumari, the investigating officer may look into it if necessary but must not treat it as conclusive, and must investigate uninfluenced by any finding or observation of the High Court or the Supreme Court. (¶¶ 39, 40)

Result

Appeals against dismissal of the Letters Patent Appeals disposed of; appeals against the Single Judge's orders dated 26.06.2006 partly allowed by modifying them: FIR to be investigated by the Delhi Police (not its Special Cell) by an officer not below Assistant Commissioner of Police, the CBI inquiry report not treated as conclusive, investigation to conclude preferably within three months; appellants to join the investigation, with no coercive steps including arrest while they appear regularly unless custodial interrogation is found necessary. Pending applications disposed of.