Jaibunnissa vs State of Karnataka

L. Narayana Swamy, J.—Mother of the deceased made a complaint/information to the police alleging that the accused have committed offence punishable under Section 498A , 304B read with Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. The information so made was registered in Crime No. 190 of 2015 by Hassan Circle Police Station. The incident is said to have been committed on 12th July 2015 between 17.00 and 18.05 hours and the complaint was made at 18.05 hours and petitioner herein, who is accused No. 2, surrendered before the Magistrate on 16th July 2015 and the Magistrate has remanded the petitioner to judicial custody and she is in custody since then. In the complaint it has been stated that the deceased was informing her parents about the cruelty and demand of dowry which was persisting since the date of marriage and it is informed that on 12th July 2015 at 5.00 clock in the evening she died by hanging herself. Husband and mother-in-law are in custody since the date of arrest they having surrendered before the Magistrate. Sister of the accused has been granted bail.

The learned counsel for the petitioner submits that there was no dowry harassment and only a false complaint has been made. Respondent-police have committed an error in not enquiring into the credibility of the complaint since it is cognizable offence and no preliminary investigation/enquiry has been conducted and automatically these petitioners are kept in judicial custody, which is nothing but infringing the fundamental rights of the petitioners. Hence, the same is violative of Articles 14 and 21 of the Constitution of India.

The learned counsel for the Respondent submits that having satisfied with the information furnished in the complaint with regard to committing of offence by the accused persons, the husband of the deceased was taken to custody; and the accused No. 2 the petitioner herein, has surrendered herself before the Magistrate and thereafter they were remanded to judicial custody. Since the investigation is still on, it may not be proper to release the petitioner on bail.

Heard both. Information to the police has to be made under Section 154 of Cr.PC and every information relating to the commission of cognizable offence given to a police officer in charge of a police station shall be reduced to writing by him or under his directions, 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. The same shall be entered in a book to be kept by such officer in such form as the State Government may prescribe. The First information to be provided under the Criminal Procedure Code is to be prepared and one should be handed over to the complainant and another to the accused and at an early possible point of time it is to be transmitted to the learned Magistrate. Sub-Section (2) of Section 154 of the CrPC mandates that a copy of the information as recorded under sub-section (1) of Section 154 shall be given forthwith, free of cost, to the informant. On the basis of the information furnished, the police have to conduct a preliminary investigation to satisfy as to under which provision of penal law the information so furnished falls for the purpose of preparing First Information Report. To arrive at such a conclusion, preliminary enquiry or investigation has to be made. As it is seen in the present case, the complaint was registered on 13th July 2015 for the offence committed on 12th July 2015 and the petitioner herein who is the mother-in-law of the deceased had voluntarily surrendered before the learned Magistrate and the Magistrate automatically remanded the accused to the jail authorities. Accused No. 1, who is the husband of the deceased, also has been arrested on the following day and he also has been sent to judicial custody. A reading of Section 154 of the CrPC, makes it clear that upon registration of First Information Report for cognizable offence, it shall not be automatic to forward a person to jail. The investigating officer or the police officer in charge of the Police Station has to satisfy himself about the accused having committed the cognizable offence in the matter and the case has to be committed. The copy of the complaint or First Information Report is to be supplied to them to take necessary legal course. In cases of this nature where the offence is said to have been committed under Sections 498A and 304B read with Section 34 or 149 of the Indian Penal Code as the case may be, in spite of the information/complaint made against a person who is stated to have committed the offence, all the persons including the family members viz. mother-in-law, brother(s)/sister(s)-in-law (married or unmarried), etc. living in the same house or in a different house, will be arrested. Just because the person is named in the first information/complaint, the investigating officer or the police officer in charge of investigation, taking them into custody is nothing but atrocious, arbitrary and violative of Articles 14 and 21 of the Constitution of India. The right of liberty of a person shall not be abridged or curtailed unless it is ascertained that the person named in the information/complaint has committed the offence. When a right to life is guaranteed under Articles 14 and 21 of the Constitution of India, ordinarily and mechanically, it shall not be curbed or abridged by an investigating agency or a Police Officer. As the Code of Criminal Procedure itself provides, there shall be a preliminary investigation to the satisfaction, in order to bring the offence under the particular provision of the Penal Code, this Court remembers that Government of Karnataka has issued such directions to all the Police Stations clarifying the position that unless a preliminary investigation is made and having satisfied about the information furnished in the complaint, there shall not be an automatic arrest. The police officers have to ascertain whether the persons named in the complaint as accused person whether they are residing in the same house, in the village/city; whether they could have committed the offence or not, and whether they are directly or indirectly involved in commission of offence, and only thereafter, steps to be taken to arrest them. Without ascertaining these preliminary things, if any person is arrested automatically just because named in the first information/complaint without any proper investigation, the same is to be termed as arbitrary, unconstitutional and liberty always be on the accused to initiate civil and/or criminal action against the errant police/investigating officers who commit breach of constitutional rights. The circular issued by Government of Karnataka/Director General and Inspector General of Police/Police Commissioner in this regard will have to be re-printed and re-circulated to all the police stations. As it is, the position of law is that the First Information Report is not an encyclopedia. It is only a means to set law into motion. It only authorizes the Police Station to proceed further in the form of investigation and report the same by transmitting the First Information Report forthwith to the concerned Magistrate.

The Hon''ble Supreme Court in the case of Lalita Kumari Vs. Govt. of U.P. and Others, at paragraph 53 of the judgment has observed thus:

"54) It is thus clear that registration of FIR is to be done in a book called FIR book or FIR Register. Of course, in addition, the gist of the FIR or the substance of the FIR may also be mentioned simultaneously in the General Diary as mandated in the respective Police Act or Rules, as the case may be, under the relevant State provisions."

The Hon''ble Supreme Court in the case of Ram Lal Narang Vs. State (Delhi Administration), , at paragraph 15 has observed thus:

"15. The police thus had the statutory right and duty to "register" every information relating to the commission of a cognizable offence. The police also had the statutory right and duty to investigate the facts and circumstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report. These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate; nor was any sanction required from a Magistrate to empower the Police to investigate into a cognizable offence. This position in law was well-established."

After the information/complaint is registered, since it is the duty on the part of the police that forthwith they have to register the case and they have to examine as to under what Section of the provision the offence falls, the Hon''ble Supreme Court in the case of LALIT KUMARI (supra) at paragraph 88 of the judgment has observed that though there is reference to the terms "preliminary inquiry" and "inquiry" under Section 159 and Sections 202 and 340 of the Code, that is a judicial exercise undertaken by the Court and not by the police, is not relevant for the purpose of the present case.

In most of the cases of this nature, where the family members are sometimes may be poor, aged, women and aged parents, will be named in the complaint and they would be in difficulty if such a restraint is not followed. Under these circumstances, preliminary investigation comes to the assistance of these people since they have been guaranteed fundamental right under the Constitution of India and can avoid unnecessary harassment and also foresee that they will not spend their valuable life in jail.

In the light of the above, it is made clear that whenever in the cases of this nature information is furnished/complaint is made, the Station House Officer/Investigating Officer have to register the case as is required under Section 154 of the Code of Criminal Procedure forthwith and has to forward the report to the learned Magistrate and thereafter they may conduct preliminary investigation with regard to involvement of the accused in the incident, etc. Unless that is made, the action of remanding the person named in the information/complaint, is arbitrary, unconstitutional and ultra vires of Section 154 of the Code of Criminal Procedure.

Further in another judgment in the case Arnesh Kumar Vs. State of Bihar, , Hon''ble Supreme Court in the course of judgment, has held that "Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

"(1) All the State Governments to instruct its Police Officers not to automatically arrest when a cast under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 , Cr.PC.

(2)........."

The Police Officers/Investigating Officers, even if it is presumed that they are legally trained and are well-versed with the provisions of law, Rule of law, it cannot be ruled out that they exercise their power purely and strictly in accordance with law. Despite all these legal provisions, in most of the cases what the Court has observed is that the moment complaint is lodged in cases where offence falls under the provisions of Dowry Prohibition Act or if it is a case of dowry death, forthwith the persons named in the information/complaint are remanded to jail, which is most unfortunate, unwanted and alarming. Police officers, sometimes, may not know the repercussions of these provisions. Law further strongly presumes that the learned Magistrate, to whom first information report is transmitted forthwith in the cases of this nature that a complaint made under the provisions of 498A and 304B of Indian Penal Code, it is the fundamental duty of the learned Judge to safeguard both the accused as also the victim. As it is referred by the Hon''ble Supreme Court, the moment the learned Magistrate sees the provisions of 498A and 304B , automatically and casually, without application of mind and the provisions that has been guaranteed therein and also the provisions of the Code of Criminal Procedure, they remand the accused persons to judicial custody irrespective of the fact whether they have committed the offence and are made to languish unnecessarily in jail. Aged and ailing persons have to be safeguarded and mere arresting and sending them to jail is not an end in itself. Law set into motion is only a means to try them and after completion of trial, they are to be dealt with appropriately.

But in the instant case, even before completion of the trial, accused are forced to spend time in jail. This court expresses that not all the cases need to be investigated and satisfied for having committed the offence or not. It may not be possible also. But, wherever prima-facie if it is satisfied that the accused are innocent of the offence alleged, they need not be sent to jail. Once they are sent to jail, again the other course of action begins by filing application/petition under Sections 438 or 439 of the Cr.PC, then the prosecution seeks time to file objections, then due to non availability of time the Court would take time to dispose of such petitions and by efflux of time the courts also get influenced by the nature of offence described in the complaint and ultimately, the fundamental rights of the parties would be in jeoparde by keeping the accused persons in jail. To avoid all these unconstitutional and arbitrary action, what is required to be done is that the Police Officers have to abide by the instructions issued by the Government of Karnataka and the Police Heads and also Section 154 of the Code of Criminal Procedure and they should follow the guidelines issued by the Hon''ble Supreme Court in the case of ARNESH KUMAR (supra).

In the light of the above, in the present case, this Court sees that the petitioner is aged 77 years as per cause title (but age proof is not produced to the court), who voluntarily surrenders to the Court on 16th July 2015 and she is in judicial custody since then. Though the complaint discloses that offence has been committed by the petitioner, but in my opinion, since no preliminary or discrete enquiry is done or report is made available to this Court, the petitioner is entitled for enlargement on bail. Accordingly, petition is allowed, I am inclined to grant bail to the petitioner subject to the following conditions.

"1) Petitioner shall execute a bond for a sum of Rs. 10,000/- with one surety for the like sum to the satisfaction of the jurisdictional court;

2) Petitioner shall not tamper with evidence;

3) Petitioner shall attend the court on all dates of hearing;

4) If the petitioner violates any of the above conditions, prosecution will be at liberty to seek cancellation of bail."