DOLIBEN KANTILAL PATELversusSTATE OF GUJARAT & ANR.

                         [2013] 8 S.C.R. 28


A                   DOLIBEN KANTILAL PATEL
                                  V.
                   STATE OF GUJARAT & ANR.
                 (Criminal Appeal No. 810 of 2013)

                            JULY 1, 2013
B
             [P. SATHASIVAM AND M.Y. EQBAL, JJ.]

        Code of Criminal Procedure, 1973:

c        s. 154 - Police complaint alleging rape in police custody
    - Non registration of FIR - Writ petition seeking direction to
    register FIR and direction for investigation by CBI - Dismissed
    - Held: High Court rightly dismissed the writ petition directing
    the complainant to take recourse to complaint to the
0   Magistrate.

         s. 154 - FIR - Registration of - Held: Before registration
    of FIR, if the facts of the case are such which require some
    inquiry for the satisfaction of the charges or allegations made
    in the FIR, then a limited inquiry is permissible.
E
         Constitution of India, 1950 -Articles 32 and 226 - Power
    under, to direct CBI to conduct an investigation - Held: In such
    cases, Court to exercise its extraordinary power sparingly,
    cautiously and in exceptional situations.
F
        The case of the appellant was that with respect to
   certain land disputes, criminal case was lodged against
   her. She was arrested and was under police remand for
   five days. During the remand period, she was repeatedly
   raped in police custody by the complainant and the
G police officials. Thereafter, she was transferred to jail.
   When she was released on bail, she filed a complaint u/
   s. 376 r/w. s.1208 IPC, but FIR was not lodged. She filed
  ·petition u/Art. 226 of the Constitution praying for direction

H                                 28
 DOLIBEN KANTILAL PATEL v. STATE OF GUJARAT             29
                   &ANR.
to the authorities to register the FIR and also to refer the A
matter to CBI for investigation. High Court dismissed the
petition, directing her to avail recourse to the remedy of
complaint before the Magistrate as provided under
Cr.P.C. Hence the present appeal.
                                                             B
     Dismissing the appeal, the Court

    HELD: 1.1. When the appellant had various
opportunities to disclose the alleged offence of rape or
misdeeds, it was not disclosed throughout the period
neither to her mother when she was taken to her home C
twice during the period of remand nor to the female
doctors of the Civil Hospital who examined her nor to the
doctors of the Jail authorities. Even at the time of
production before the Magistrate after the completion of
the period of remand and subsequently, when she was D
remanded to the judicial custody, nothing was disclosed
about any such misdeed or ill-treatment or harassment.
[Para 9] [37-A-C]

     1.2. High Court was justified in directing the E
appellant to avail the recourse to the remedy as provided
in the Cr.P.C. by filing a complaint before the Magistrate.
The High Court, in order to safeguard the stand of the
appellant, issued certain directions to remedy her
grievance against the persons concerned. The decision
of the High Court is confirmed in the light of t.he facts F
relating to the background of the case, particularly, the
land dispute, the complaint regarding the same and
various subsequent circumstances including her silence
about the non-disclosure of the alleged rape. [Para 12]
[38-H; 39-A-C]                                              G

    2. Before registration of the FIR, an officer should be
satisfied. In other words, if the facts are such which
require some inquiry for the satisfaction about the
charges or allegations made in the FIR or he may have         H
    30       SUPREME COURT REPORTS               [2013] 8 S.C.R.


A   entertained a reasonable belief or doubt, then he may
    make some inquiry. By virtue of the expression "reason
    to suspect the commission of an offence", the
    commission of cognizable offence, based on the facts
    mentioned has to be considered with the attending
B   circumstances, if available. If there is a background/
    materials or information, it is the duty of the officer to take
    note of the same and proceed according to law. If the
    facts are such which require some inquiry for the
    satisfaction about the charges or allegations made in the
c   FIR then such a limited inquiry is permissible. [Para 10]
    [37-F-H; 38-A-B]

       State of Haryana and Ors. vs. Bhajan Lal and Ors. 1992
    Supp (1) sec 335: 1990 (3) Suppl. SCR 259 - relied on.

D        3. Despite wide powers conferred by Articles 32 and
    226 of the Constitution, the Courts must bear in mind
    certain self-imposed limitations on the exercise of such
    constitutional powers. Insofar as the question of issuing
    a direction to CBI to conduct an investigation, such an
E   order is not to be passed as a matter of routine or merely
    because a party has leveled some allegations against the
    local police. This extraordinary power must be exercised
    sparingly, cautiously and in exceptional situations where
    it becomes necessary to provide credibility and instill
F   confidence in investigations or where the incident may
    have national and international ramifications or where
    such an order may be necessary for doing complete
    justice and enforcing the fundamental rights. Otherwise,
    the CBI would be flooded with a large number of cases
G   and with limited resources, may find it difficult to properly
    investigate even serious cases and in the process, lose
    its credibility and purpose with unsatisfactory
    investigations. [Para 11] [38-C-G]

         State of West Bengal and Ors. vs. Committee tor
H
 DOLIBEN KANTILAL PATEL v. STATE OF GUJARAT                  31
                   &ANR.
Protection of Democratic Rights, West Bengal and Ors. (2010) A
3 sec 571: 2010 (2) SCR 979 - relied on.
                       Case Law Reference:
     1990 (3) Suppl. SCR 259        relied on         Para 10
                                                                    B
     2010 (2) SCR 979               relied on         Para 11

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 810 of 2013.

    From the Judgment and Order dated 08.11.2012 of the             c
High Court of Gujarat at Ahmedabad in SCRLA No. 2206 of
2012.

     Jaideep Gupta, Udaya Kumar Sagar, Bina Madhvan,
.Praseena E. Joseph (for Lawyer's Knit & Co.,) for the Appellant.
                                                                    D
     L. Nageshwar Rao, Shamik Sanjanwala, Hemantika Wahi,
Dhruv Tamta for the Respondents.

     The Judgment of the Court was delivered by

     P. SATHASIVAM, J. 1. Leave granted.                            E

    2. This appeal is directed against the final judgment and
order dated 08.11.2012 passed by the High Court of Gujarat
at Ahmedabad in Special Criminal Application No. 2206 of
2012 whereby the High Court dismissed the petition filed by the F
appellant herein.

     3. Brief facts:

      (a) The appellant herein is an American Citizen of Indian
origin who came to India on 09.03.2010 to see her ailing father- G
Kantilal Ambalal Patel. Kantilal Ambalal Patel is having a
number of properties in the form of lands, flats and societies in
the State of Gujarat. Arvind Jani and Jayesh Dave are very close
friends of the father of the appellant. They cheated the father of
                                                                   H
    . 32      SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A    the appellant in respect of a land dealing at Rajkot against
     which Civil Suit No. 186 of 2010 was filed in the Court at Rajkot
     wherein the said suit was decreed in the favour of the appellant
     herein. The present appeal pertains to the land situated at
     Vadodra in the name of Gayatrinagar Cooperative Housing
B    Society Limited (group of five societies).

          (b) Since certain disputes arose with respect to the above
     said land at Vadodra which, as per the appellant herein,
     belongs to her father and the appellant had a joint account with
C    him, one Divyangbhai Jha filed an FIR being CR No. 5/2012
     dated 21.05.2012 registered with Gandhinagar Police Station
     under Sections 406, 409, 420, 465, 467, 468, 174, 1208 and
     477A of the Indian Penal Code, 1860 (in short 'the IPC') against
     the appellant herein and 7 other accused persons in respect
D    of grabbing of lands of cooperative societies using forged/
     fabricated government permission letters.

          (c) On 23/24.05.2012, the appellant herein was arrested
     at about midnight. On 24.05.2012, she was pr_oduced before
     the Judicial Magistrate and an application for remand was
E    preferred by CID Crime, Ahmedabad. On the very same day,
     Judicial Magistrate granted remand for a period of 5 days.

           (d) It was alleged by the appellant herein that from the very
     first day of remand, she was repeatedly raped in police custody
F    by Jayesh Dave, Divyangbhai Jha (the complainant in
     abovesaid FIR), A.A. Shaikh, the investigating officer and also
     by an unknown person. However, Arvind Jani was present
     throughout the period of remand. It was further alleged that after
     the period of remand, she was sent to the Central Jail,
G    Sabarmati, Gujarat without following the procedures prescribed
     under law.

          (e) On 20.06.2012, she wrote an e-mail to Ms. Deepa
     Mehta, U.S Citizens Services in U.S Consulate, Mumbai
     describing the entire incident of rape and the atrocities meted
H    out to her. It was also alleged in the said e-mail that Arvind Jani
 DOLIBEN KANTILAL PATEL v. STATE OF GUJARAT                  33
          & ANR. [P.. SATHASIVAM, J.]
and Jayesh Dave, in connivance with one Amam Shah, owner           A
of a vernacular daily known as Gujarat Samachar got the
complaint filed directly to the CID (Crime & Railways) to the
effect that Kantilal Ambalal Patel and others are not the office
bearers of the abovesaid cooperative society at Vadodra. On
11.07.2012, the appellant herein was released on bail by the       B
High Court of Gujarat.

      (f) On 14.07.2012, the appellant filed a complaint under
Section 376 read with Section 120B of the IPC to the Police
Inspector, Meghani Nagar Police Station, Ahmedabad narrating       C
the alleged offence cited above to have occurred during the
period of remand. On the very same date, based on the
instructions of the Additional Commissioner of Police, Sector
II, the investigation in respect of the above offence was
transferred to the Mahila Police Station. It was alleged by the
appellant herein that in spite of the complaint regarding a        D
serious offence of rape, no FIR was lodged at Mahila Police
Station. Vide notices dated 15/16.07 .2012, the Police
Inspector, Mahila Police Station called her to record her
statement, but she refused to give any statement on the pretext
of non-filing of FIR.                                              E

     (g) Being aggrieved by the non-filing of FIR, the appellant
herein filed Special Criminal Application No. 2206 of 2012
before the High Court praying for a direction to the authorities
concerned to register an FIR and also to refer the matter to the   F
CBI for investigation. In the meantime, on 27.07.2012, Chief of
the American Citizens Services in the American Consulate, in
pursuance of the e-mail dated 20.06.2012 forwarded an e-mail
to gain access to the appellant herein. The High Court, vide
order dated 08.11.2012, dismissed the petition filed by the        G
appellant herein. Being aggrieved by the order of the High
Court, the appellant herein has preferred this appeal by way of
special leave.

    4. Heard Mr. Jaideep Gupta, learned senior counsel for
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    34        SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A   the appellant and Mr. L. Nageshwar Rao, learned senior
    counsel for the respondents.

        5. In order to understand the claim of the appellant, it is
  useful to mention the relief prayed for in the writ petition filed
B under Article 226 of the Constitution of India. In the said writ
  petition, she prayed for appropriate direction to the authorities
  concerned, viz., the Police Inspector (Respondent No. 2
  therein), Meghani Nagar Police Station, Ahmedabad, Gujarat
  to register an FIR for the offence punishable under Sections
  376, 114 and 120B of the IPC in connection with the written
C complaint dated 14.07.2012 given by her and, thereafter, to
  transfer the investigation of the said registered FIR to the CBI
  for further investigation.

        6. It is not in dispute that with reference to the land situated
D at Vadodra, a complaint has been filed against the appellant
  and her father which was registered as FIR being CR No.5/
  2012 at Gandhinagar Police Station. It is further seen that the
  appellant is an NRl/foreign national of Indian origin and she had
  been roped in the earlier complaint relating to the land dispute
E because she had a joint account with her father. Though it is
  pointed out that in order to pressurize the appellant for certain
  other land disputes at Rajkot, she has been arrested and raped,
  since we are concerned about her grievance about the alleged
  rape in police custody, there is no need to elaborate the details
F regarding the FIR being CR No. 5/2012. It is the grievance of
  the appellant that the arrest was made at midnight without the
  assistance of lady police personnel and during the period of
  police custody, she was raped by the Investigating Officer and
  other police personnel for which a complaint dated 14.07.2002
G was made to Respondent No. 2 herein but no action was taken
  on the said complaint. Being aggrieved by the non-registration
  of the complaint, the appellant approached the High Court,
  under Article 226 of the Constitution, praying for the reliefs
  mentioned above. It is also highlighted that inasmuch as the
  police personnel are involved in the crime and in view of the
H attitude of the State police in not registering her complaint, she
 DOLIBEN KANTILAL PATEL v. STATE OF GUJARAT                     35
          & ANR. [P. SATHASIVAM, J.]

prayed for investigation by the CBI.                                   A

       7. It is the specific stand of the respondent-State that the
original complaint was made by one Divyangbhai Jha which was
 registered as CR No. 5/2012 under Sections 420, 406 and
 1208 of IPC against the father of the appellant and the appellant
                                                                       8
 herein with regard to the alleged land transaction at Vadodra.
It is their further claim that thereafter, she had been arrested and
at the time of her actual arrest, though female police personnel
were not present but immediately thereafter she was taken to
the ne~rest police station where female police personnel were
present and they remained with the accused throughout. It is           C
pointed out by the State that there was no complaint by the
appellant with regard to any harassment from the place of her
arrest till she was taken to the nearest police station and there
was also no violation of the guidelines or statutory provisions. It
is further pointed out that after her arrest on 24.05.2012, she        D
was produced before the Magistrate and, thereafter, her remand
was granted for 5 days, i.e., from 24.05.2012 to 29.05.2012 and
on 29.05.2012, again she had been produced before the
 Magistrate but at no point of time, no complaint about
harassment or alleged offence of rape has been made to the             E
judicial officer. It is also pointed out that during the period of
 remand, she was taken to her house twice where her mother
was also present and she had occasion to inform the same to
her, but no grievance was made to anyone. Likewise, on
29.05.2012, when she was produced before the Magistrate and            F
was remanded to the judicial custody, she had not made any
statement or complaint to the Magistrate about the alleged
offence of rape during the custody. It is further pointed out that
she had not disclosed the same to anyone including her mother,
judicial officer or even to the doctors who have examined her.         G
Her medical examination was also done by the Doctors at the
Civil Hospital on 26.05.2012 and 29.05.2012. It is further
pointed out that thereafter, in Sabarmati Jail, she was examined
by female jail doctor on 29.05.2012, 01.06.2012 and
02.06.2012. It is further pointed out that even in the bail            H
    36       SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A application filed before the High Court, no such grievance has
  been made with regard to the alleged offence of rape while she
  was in custody. Finally, it is pointed out by the State that when
  the statement of the appellant was sought to be recorded on
  14.07.2012, she did not respond and again when she was
B called on 16.07.2012 and a reminder was sent, she was not
  present at her house on 17.07.2012 and even after further
  efforts, she was not available. By pointing out all these
  instances, it is projected by the State that if the appellant has
  any grievance that her complaint has not been registered as
C an FIR, the Code of Criminal Procedure, 1973 (in short 'the
  Code') provides that an application could be made to the
  Magistrate having jurisdiction who may proceed after making
  an inquiry or after getting further materials. In view of the same,
  it is pointed out that the High Court was fully justified in
  dismissing the petition filed under Section 226 and directing
0
  the appellant to avail the remedy provided under the Code
  before the court of Magistrate.

       8. It is clear that if it is a case of rape at the hands of the
  police officials that too in the custody, undoubtedly, the persons
E concerned are answerable for not registering her written
  complaint. We have already referred to the earlier complaint
  by some of the partie? relating to the land dispute which
  resulted in the FIR being CR No. 5/2012 for which the appellant
  and her father were arrested. We also noted that when the
F appellant had various opportunities of disclosing her grievance
  including the alleged offence of rape to various persons, viz.,
  her mother, female medical officers and judicial Magistrate,
  admittedly, such remedy was not availed by her.

       9. It is the assertion of the senior counsel for the appellant
G that when the information regarding a cognizable offence is laid
  before the officer in-charge of a police station under Section
  154 of the Code, he is bound to register it as an FIR without
  any inquiry and he has no discretion to even consider whether
  the allegations made are prima facie borne out or not. In order
H
 DOLIBEN KANTILAL PATEL v. STATE OF GUJARAT                      37
          & ANR. [P. SATHASIVAM, J.]
to answer this question, we have to examine the background             A
of the case which we have already adverted to including the
FIR being CR No. 5/2012 relating to the land dispute and we
have also pointed out that when the appellant had various
opportunities to disclose the alleged offence of rape or
misdeeds, it has not been disclosed throughout the period              B
neither to her mother when she was taken to her home twice
during the period of remand nor to the female doctors of the
Civil Hospital who examined her nor to the doctors of the Jail
authorities. We have also noted that even at the time of
production before the Magistrate after the completion of the           C
period of remand and subsequently, when she was remanded
to the judicial custody, nothing had been disclosed about any
such misdeed or ill-treatment or harassment.

     10. An elaborate discussion had been made with regard
to Section 154 of the Code in State of Haryana and Ors. vs.            D
Bhajan Lal and Ors., 1992 Supp (1) sec 335. It is seen from
the discussion that the police officer in charge of a police station
is obliged to register a case and then to proce.ed with the
investigation subject to the provisions of Sections 156 and 157
of the Code. It is further seen that if the police officer in-charge   E
of a police station refuses to exercise the jurisdiction vested
in him and register the case on information of cognizable
offence and violates the statutory right, the person aggrieved,
can send the substance of the same to the higher authority,
who, in turn, if satisfied that the information forwarded to him       F
discloses a cognizable offence, can investigate the case
himself or direct the investigation to be made by a subordinate
officer. The elaborate discussion clearly shows that before
registration of the FIR, an officer should be satisfied. In other
words, if the facts are such which require some inquiry for the        G
satisfaction about the charges or allegations made in the FIR
or he may have entertained a reasonable belief or doubt, then
he may make some inquiry. To put it clear, by virtue of the
expression "reason to suspect the commission of an offence",
we are of the view that commission of cognizable offence,
                                                                       H
    38.       SUPREME COURT.REPORTS                  [2013] 8 S.C.R.


A   based on the facts mentioned has to be considered with the
    attending circumstances, if available. In other words, if there is
    a background/materials or information, it is the duty of the officer
    to take note of the same and proceed according to law. It is
    further made clear that if the facts are such which require some
B   inquiry for the satisfaction about the charges or allegations
    made in the FIR then such a limited inquiry is permissible.

        11. With regard to the direction for investigation by the CBI,
    a Constitution Bench of this Court in State of West Bengal and
    Ors. vs. Committee for Protection of Democratic Rights, West
C   Bengal and Ors., (2010) 3 SCC 571 clarified that despite wide
    powers conferred by Articles 32 and 226 of the Constitution,
    the Courts must bear in mind certain self-imposed limitations
    on the exercise of such constitutional powers. Insofar as the
    question of issuing a direction to CBI to conduct an
D   investigation, the Constitution Bench has observed that
    "although no inflexible guidelines can be laid down to decide
    whether or not such power should be exercised but time and
    again it has been reiterated that such an order is not to be
    passed as a matter of routine or merely because a party has
E   leveled some allegations against the local police. This
    ~xtraordinary power must be exercised sparingly, cautiously
    and in exceptional situations where it becomes necessary to
    provide credibility and instill confidence in investigations or
    where the incident may have national and international
F   ramifications or where such an order may be necessary for
    doing complete justice and enforcing the fundamental rights.
    Otherwise, the CBI would be flooded with a large number of
    cases and with limited resources, may find it difficult to properly
    investigate even serious cases and in the process lose its
G   credibility and purpose with unsatisfactory investigations."

         12. Having regard to the Scheme of the Code, various
    provisions as to the course to be adopted and in the light of
    the peculiar/special facts and circumstances which we have
    already noted in the earlier paras, we are satisfied that the High
H
DOLIBEN KANTILAL PATEL v. STATE OF GUJARAT                    39
         & ANR. [P. SATHASIVAM, J.]
Court was fully justified in directing the appellant to avail the   A·
recourse to the remedy as provided in the Code by filing a
complaint before the Magistrate. We are also satisfied that the
High Court, in order to safeguard the stand of the appellant,
issued certain directions to remedy her grievance against the
persons concerned. We confirm the decision of the High Court        s
in the light of the facts relating to the background of the case,
particularly, the land dispute, the complaint regarding the same
and various subsequent circumstances including her silence
about the non-disclosure of the alleged rape before her mother
on two occasions and before the female doctors at Civil             c
Hospital as well as Sabarmati Jail and also before the
Magistrate. It is further made clear that while affirming the
decision of the High Court, it cannot be presumed that we are
underestimating the grievance of the appellant herein and it is
for the Magistrate concerned to proceed in accordance with the
                                                                    0
provisions of the Code and arrive at an appropriate conclusion.

     13. With the above observation, the appeal is dismissed.

K.K.T.                                      Appeal dismissed.