Salim v state

I.D. No. 1119-20
Salim Vs. State & Ors.
U/s 156(3) Cr.P.C.
P.S. Jafrabad
Order
23-11-2020
Present: Ld. Counsel for complainant/applicant.
(Connected through CISCO Webex).
1. Vide this order, I shall dispose of the present application U/s 156 (3)
Cr.P.C filed on behalf of the Complainant/applicant namely Saleem S/o
Nazmuddin seeking directions for registration of FIR on the allegations made
in the present application/complaint:-
2. At the outset, it may be noted that the present application has been
filed in the wake of recent communal riots incidents took place in North- East
Delhi in the month of February 2020. It is the case of the
Complainant/applicant that the Complainant is a resident of Yamuna Vihar
Raod, North Ghonda, Delhi. On 24.2.2020 at around 09:25 P.M some anti-
social people who are also neighbours of the Complainant and named in the
memo of parties as respondent/accused no.2 to 19 and whom the
Complainant claims to identify, came to his house and entered forcibly. It is
alleged that the said accused persons attacked his house and accused no.3
and 7 namely Subhash Tyagi and Ashok Tyagi fired gunshots at his house,
which is evidenced by the bullet marks still present there. It is alleged that
alongwith Ashok Tyagi , the accused persons were also firing from the roof of
his house. One Nasheer standing on the road was shot and the rest of the
people pelted heavy stones on the roof of the Complainant and also threw
petrol bombs on the roof of his house, which the complainant extinguished
Page no. 1 of 12 pages

with water on time. It is further alleged that somehow the complainant saved
his life. Then they called the police at emergency number 112 and asked for
help at about 09:25 p.m. But even after many calls, no police personnel
arrived at the spot of the incident despite several requests for urgent help.
The said accused persons also abused and threatened them with death
threats.
3. It is further alleged in the application U/s 156 (3) Cr.P.C filed by the
Complainant/applicant that he alongwith his family left that place to save
their lives. The attackers/accused persons were present there under the
directions of Ashok Tyagi, Subhash Tyagi etc. and they had directed them to
carry out the aforesaid assault. There were several people in the group. The
members of the group were carrying arms/weapons such as knives, guns and
bombs etc. The alleged accused persons were also repeatedly claiming that
they had the support and protection of the police as well. It is stated by the
complainant/applicant that he has several video recordings of the incident. It
is stated that the complainant was extremely threatened and therefore left
the spot in order to save his life. It is further stated by the Complainant that
he attempted to call Delhi Police Control Room , informed them about the
incident and further attempted to contact the SHO PS Jafrabad but no police
personnel arrived at the spot of the incident despite several requests for
urgent help. The complainant had submitted a complaint dated 01.03.2020
to the SHO PS Jafrabad which was received vide D.D Entry no. 45 B. Copy of
the complaint is attached as Annexure-A. It is stated by the Complainant that
since the occurring of the aforesaid incident, the Complainant had attempted
to have his complaint registered as an FIR at PS Jafrabad but no action has
been taken so far. Further on 17.03.2020, the Complainant had sent a
complaint vide e-mail to DCP North East District but no action has been
taken on the same till date. Copy of the Complaint and e-mail sent on
17.03.20 to DCP North East is annexed as Annexure-B. It is stated by the

Complainant that the nature of offence requires investigation to be carried
out by the police. Reliance has been placed on the case of “Lalita Kumari v.
Govt. of U.P & Ors.” [(2014), (2) SCC 1] and it has been prayed that
directions be issued to SHO PS Jafrabad to register an FIR under section 154
Cr.P.C against the named accused persons and investigate the matter.
4. Vide order dt. 20.03.20 ATR was called in the present matter from the
SHO concerned. Accordingly, Status report has been filed by concerned
IO/SHO in the present matter.
5. In the reply/ATR filed by IO/SHO concerned it is stated that a complaint
of the complainant dated 01.03.2020 was received in PS Jafrabad. The said
complaint was marked to SI Rakesh Kumar for inquiry. ASI Rakesh Kumar
contacted the complainant Saleem on his phone a number of times and also
visited the complainant’s house but the complainant did not meet there and
informed him that he is out of home and the Complainant did not co-operate
in the inquiry. It has been stated in the status report filed by the IO that the
Complainant in his complaint has named Subhash Tyagi as accused. On
24.02.2020, the rioters had put his motorcycle on fire and broken the glasses
and lights of his house and for this FIR no. 65/20 U/s
147/148/149/186/353/332/436 IPC, ¾ PDPP Act had been registered at PS
Bhajanpura. And Further the Complainant has named one Supreme as
accused in the complaint/application U/s 156 (3) Cr.P.C , who provided CCTV
footages of the riots to the police and in the said footages the Complainant
Saleem alongwith his brothers was found to be involved in the riots.
Regarding accused Hari Om, it is stated in the status report that his Dhaba
situated at Yamuna Vihar Road was put on fire and was ransacked by the
rioters and for this FIR no. 165/20 U/s 147/148/149/436/380 IPC P.S
Bhajanpra is registered. So far as accused Jaibeer named by the complainant
Saleem in the present application is concerned , his medical store , car and
house was put on fire and ransacked for which FIR no. 66/20 PS Jafrabad is

registered. Moreover, the Complainant Saleem and his associates were seen
in the video provided by acused Supreme S/o Chandra on the basis of which
Complainant Saleem was arrested in FIR no. 66/2020 U/s
147/148/149/452/436/427/307/34 IPC on 19.03.20 at the instance of Jaibeer
S/o Matinder Singh. The Complainant Saleem is also required and registered
in FIR no. 56/20, 72/20, 75/20 and 122/20. It is stated that from CCTV
footages obtained, it was found that Complainant Saleem was involved in the
riots and the Complainant has filed a false complaint to save himself.
Complainant Saleem was arrested on 19.03.20 in FIR no. 66/20 and
thereafter filed the present application U/s 156 (3) Cr.P.C in the Court. After
the inquiry conducted no cognizable offence was found to be made out and
hence no FIR has been registered in the present case. Copy of DVD also
attached in support of the aforesaid submissions.
6. Thereafter rejoinder to the status report of the IO was filed on behalf
the Complainant Saleem wherein the complainant has refuted the stand
taken by the IO on the complaint of the complainant and alongwith the said
rejoinder, the complainant Saleem also filed a pendrive containing alleged
video footages of the incident/riots in support of the allegations made in the
present complaint. A certificate U/s 65-B Evidence Act has also been filed in
support of the same.
7. Submissions of both the sides heard. Record of the case carefully
perused.
8. At this stage reference may be made to the relevant sections
contained in Cr.P.C regarding registration of FIR and the procedure to be
followed thereon:-
154. Information in cognizable cases.-
(1) Every information relating to the commission of a cognizable offence, if given orally
to an officer in charge of a police station , shall be reduced to writing by him or under
his direction and be read over to the informant; and every such information , whether

given in writing or reduced to writing as aforesaid shall be signed by the person giving
it, and the substance thereof shall be entered in a book to be kept by such officer in
such form as the State Government may prescribe in this behalf:
(2) A copy of the information as recorded under sub-section (1) shall be given
forthwith, free of cost, to the informant.
(3) Any person, aggrieved by a refusal on the part of an officer in charge of a
police station to record the information referred to in sub-section (1) may send the
substance of such information, in writing and by post, to the superintendent of Police
concerned, who, if satisfied that such information discloses the commission of a
cognizable offence, shall either investigate the case himself or direct an investigation to
be made by any police officer sub-ordinate to him, in the manner provided by this Code
and such officer shall have all the powers of an officer in charge of the police station in
relation to that offence.
156.- Police officer’s power to investigate cognizable case.-
(1) Any officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a Court having jurisdiction over the
local area within the limits of such station would have power to inquire into or try under
the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called
in question on the ground that the case was one which such officer was not empowered
under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an
investigation as above-mentioned.
157. Procedure for investigation.-
(1) If, from information received or otherwise an officer in charge of a police
station has reason to suspect the commission of an offence which he is empowered
under section 156 to investigate , he shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of such offence upon a police report and shall
proceed in person, or shall depute one of his subordinate officers not being below such
rank as the State Government may, by general or special order, prescribe in this behalf,
to proceed to the spot, to investigate the facts and circumstances of the case and if
necessary to take measures for the discovery and arrest of the offender:
Provided that-
(a) When information as to the commission of any such offence is given against any
person by name and the case is not of a serious nature, the officer in charge of a
police station need not proceed in person or depute a subordinate officer to make
an investigation on the spot;
(b) If it appears to the officer in charge of a police station that there is no sufficient
ground for entering on an investigation , he shall not investigate the case;

(2) in each of the cases mentioned in clauses (a) and (b) of the proviso to
sub-section (1), the officer in charge of the police station shall state in his report
his reasons for not fully complying with the requirements to that sub-section and,
in the case mentioned in clause (b) of the said proviso, the officer shall also
forthwith notify to the informant, if any, in such manner as may be prescribed by
the State Government , the fact that he will not investigate the case or cause it
to be investigated.
In the case of “Lalita Kumari v. Govt. of U.P & Ors”[Writ Petition
(Criminal) no. 68 of 2008, decided on 12 Nov, 2013], the Hon’ble Supreme Court
of India after dealing with the said provisions of law contained in section 154 to
157 Cr.PC, pleased to observe the following points so far as registration of an FIR
on the basis of a cognizable offence is concerned:-
(i) The condition that is sine qua non for recording an FIR under Section 154
of the Code is that there must be information and that information must
disclose a cognizable offence. If any information disclosing a cognizable
offence is led before an officer in charge of the police station satisfying the
requirement of Section 154(1), 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. The provision of
Section 154 of the Code is mandatory and the concerned officer is duty
bound to register the case on the basis of information disclosing a
cognizable offence.
(ii) The use of the word shall in section 154 (1) of the Code clearly shows the
legislative intent that it is mandatory to register an FIR if the information
given to the police discloses the commission of a cognizable offence.
(iii) Investigation of offences and prosecution of offenders are the duties of the
State. For cognizable offences, a duty has been cast upon the police to
register FIR and to conduct investigation except as otherwise permitted
specifically under Section 157 of the Code. If a discretion, option or
latitude is allowed to the police in the matter of registration of FIRs, it can
have serious consequences on the public order situation and can also
adversely affect the rights of the victims including violating their
fundamental right to equality.
(iv) The legislature has consciously used the expression information in Section
154(1) of the Code as against the expression used in Section 41(1)(a) and
(g) where the expression used for arresting a person without warrant is
reasonable complaint or credible information. The expression under
Section 154(1) of the Code is not qualified by the prefix reasonable or
credible. The non qualification of the word information in Section 154(1)
unlike in Section 41(1)(a) and (g) of the Code is for the reason that the
police officer should not refuse to record any information relating to the

commission of a cognizable offence on the ground that he is not satisfied
with the reasonableness or credibility of the information. In other words,
reasonableness or credibility of the said information is not a condition
precedent for the registration of a case.
(v) 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 Section 154(1) of the Code, 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 reliable or credible. On the
other hand, the officer in charge of a police station is statutorily obliged to
register a case and then to proceed with the investigation if he has reason
to suspect the commission of an offence which he is empowered under
Section 156 of the Code to investigate, subject to the proviso to Section
157 thereof. In case an officer in charge of a police station refuses to
exercise the jurisdiction vested in him and to register a case on the
information of a cognizable offence reported and thereby violates the
statutory duty cast upon him, the person aggrieved by such refusal can
send the substance of the information in writing and by post to the
Superintendent of Police concerned who if satisfied that the information
forwarded to him discloses a cognizable offence, should either investigate
the case himself or direct an investigation to be made by any police officer
subordinate to him in the manner provided by sub- section (3) of Section
154 of the Code.
(vi) It has to be noted that in Section 154(1) of the Code, the legislature in its
collective wisdom has carefully and cautiously used the expression
information without qualifying the same as in Sections 41(1)(a) or (g) of
the Code wherein the expressions reasonable complaint and credible
information are used. Evidently, the non- qualification of the word
information in Section 154(1) unlike in Sections 41(1)(a) and (g) of the
Code may be for the reason that the police officer should not refuse to
record an information relating to the commission of a cognizable offence
and to register a case thereon on the ground that he is not satisfied with
the reasonableness or credibility of the information. In other words,
reasonableness or credibility of the said information is not a condition
precedent for registration of a case. A comparison of the present Section
154 with those of the earlier Codes will indicate that the legislature had
purposely thought it fit to employ only the word information without
qualifying the said word. Section 139 of the Code of Criminal Procedure of
1861 (Act 25 of 1861) passed by the Legislative Council of India read that
every complaint or information preferred to an officer in charge of a police
station should be reduced into writing which provision was subsequently
modified by Section 112 of the Code of 1872 (Act 10 of 1872) which
thereafter read that every complaint preferred to an officer in charge of a
police station shall be reduced in writing. The word complaint which

occurred in previous two Codes of 1861 and 1872 was deleted and in that
place the word information was used in the Codes of 1882 and 1898 which
word is now used in Sections 154, 155, 157 and 190(c) of the Code. An
overall reading of all the Codes makes it clear that the condition which is
sine qua non for recording a first information report is that there must be
an information and that information must disclose a cognizable offence.
(vii) It is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an 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.
(viii) 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.
(ix) Therefore, conducting an investigation into an offence after registration of
FIR under Section 154 of the Code is the procedure established by law
and, thus, is in conformity with Article 21 of the Constitution. Accordingly,
the right of the accused under Article 21 of the Constitution is protected if
the FIR is registered first and then the investigation is conducted in
accordance with the provisions of law.
(x) The object sought to be achieved by registering the earliest information as
FIR is inter alia two fold: one, that the criminal process is set into motion
and is well documented from the very start; and second, that the earliest
information received in relation to the commission of a cognizable offence
is recorded so that there cannot be any embellishment etc., later.
(xi) The registration of FIR under Section 154 of the Code and arrest of an
accused person under Section 41 are two entirely different things. It is not
correct to say that just because FIR is registered, the accused person can
be arrested immediately. It is the imaginary fear that merely because FIR
has been registered, it would require arrest of the accused and thereby
leading to loss of his reputation and it should not be allowed by this Court
to hold that registration of FIR is not mandatory to avoid such
inconvenience to some persons. The remedy lies in strictly enforcing the
safeguards available against arbitrary arrests made by the police and not
in allowing the police to avoid mandatory registration of FIR when the
information discloses commission of a cognizable offence.

Thus, as per the observation made by the Hon’ble Supreme
Court of India made in the above noted case:-
(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. 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.
9. Further in the case of “Radha v. State”, [Crl. Misc. (c) no.
3494 of 2008, decided on 18.05.2011], the Hon’ble Delhi High
Court in the facts of the case observed that:-

"Bearing in mind the legal position which emerges from the
above decisions this court must hold that a statutory duty is cast
upon the police to register and investigate the case on receipt of
an information relating to the commission of a cognizable offence
and it cannot be left to the sweet will or the so called discretion
of the police officer to register or not to register a case or to
undertake a preliminary inquiry even before registration of the
case. The Police Officer cannot embark upon an enquiry in regard
to the correctness or veracity of the facts/allegations disclosed
from the information. It would be hazardous to give such
sweeping power or discretion to the police in the matter of
registration of FIR which would go contra to the very scheme of
the Code of Criminal Procedure and Criminal Justice delivery
system in the country. Such a situation may play havoc more
particularly so when the matter is left in the hands of
unscrupulous police officer(s) who are not acting bona fide or
who fail to approach the matter with the desired objectivity and
sensitivity as may be required in the matter.”
10. Now coming to the facts of the present case, in the present
complaint filed by the Complainant before this Court, it has been
alleged by the Complainant that on 24.02.20 at around 09:25 P.M
some anti social people who are his neighbours and named in
the complaint attacked the house of the complainant, fired
gunshots at his house, pelted stones and threw patrol bombs on
the roof of his house and the Complainant to save his life left his
house. The Complainant asked for help but no police personnel
arrived at the spot. The Complainant also made a written
complaint about the said incident on 01.03.20 with the SHO PS
Jafrabad and further to DCP concerned on 17.03.20 but no action
has been taken of the Complainant so far by the police. The
Complainant also stated to have video recordings of the said
incident and has submitted the same before this Court in the
form of a pendrive alongwith a certificate U/s 65 B Evidence Act.
It worthy to note that the present Complaint/Application U/s 156

(3) Cr.P.C has been filed by the Complainant in the aftermath of
the Communal riots incidents took place in Delhi in the month of
February 2020.
11. Moreover, the reason given by the IO for non-registration of
FIR on the basis of the allegations made in the Complaint by the
Complainant is that there are already certain FIRs registered
against the present complainant as mentioned in the report of
the IO and the present Complainant and his family members
were allegedly involved in the criminal acts during the
Communal riots. The Complainant has been arrested for the
same and that a false Complaint is made by the Complainant to
save himself. Hence, no cognizable offence seems to have been
made out on the basis of the Complaint filed by the Complainant.
12. After hearing the submissions of both the sides as well as
perusal of the material placed on record particularly the pen-
drive filed on behalf of the Complainant before this Court, which
allegedly contains the video footages of the alleged incident, this
Court is of the view that a cognizable offence is made out on the
basis of the allegations made in the Complaint by the present
Complainant and the offences alleged of requires to be
investigated by the police. Further the allegations made in the
Complaint are serious in nature and pertains to the protection of
right to life and property of the Complainant. The equal
protection of laws cannot be denied to the Complainant merely
on account of registration of certain FIRs against him as
mentioned in the reply of the IO and on the assumption of the IO
that the complaint is false and made to save the Complainant
and that too without even registering an FIR and conducting an
independent and impartial investigation into the allegations

made by the Complainant. Thus, in the considered opinion of this
Court such a conclusion/finding can be arrived at by the
investigating agency only after an FIR is lodged on the complaint
of the complainant and a fair, independent and impartial
investigation is carried out by the police into the offences alleged
to be made out in the Complaint against the alleged offenders.
13. Hence, in the facts and circumstances of the present case,
this Court deems fit to direct the SHO P.S Jafrabad to register an
FIR at the earliest under the appropriate Sections of law on the
basis of the allegations made in the Complaint by the present
Complainant and to ensure that a fair, independent and impartial
investigation is made on the Complaint filed by the Complainant
in the present case and a final report is filed thereof without
delay. DCP concerned is also directed/requested to ensure
registration of FIR by SHO PS Jafrabad as directed by the Court
and monitor the investigation being carried out by the SHO P.S
Jafrabad in the present complaint.
14. With these observations the present complaint/application
U/s 156 (3) is disposed of.
Copy of this order be sent to SHO PS Jafrabad as well as
DCP concerned for intimation and necessary action.
Copy of this order be also given dasti to Ld. Counsel for the
Complainant as requested.
File be consigned to Record Room to be revived at the
appropriate stage.
(Fahad Uddin)
M.M. (Shahdara)/KKD/Delhi
23-11-2020

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