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Registration Of Crime By Police Without Material Allegation To Constitute Cognisable Offence Creates Impression Of Kakistocracy, May Lead To Anarchy: AP HC [Read Petition]

Mehal Jain
13 Sep 2020 6:53 AM GMT
Registration Of Crime By Police Without Material Allegation To Constitute Cognisable Offence Creates Impression Of Kakistocracy, May Lead To Anarchy: AP HC [Read Petition]
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The Andhra Pradesh High Court has observed that the registration of a crime without any material allegation to constitute cognizable offence, and harassing the public in the guise of investigation may lead to anarchy.

Justice M. Satyanarayan Murthy reflected that such acts of the police department create an impression that the people are living in a "kakistocracy", though they are living in a democracy.

The Single Judge remarked that it also reflects the lack of minimum knowledge about law, giving an impression that the department is manned by an officer without any administrative control.

The Single Bench was hearing the Managing Director of a popular web portal "Telugu" for the quashing of the FIR registered by the state CID against him for the offences punishable under Sections 188, 505 (2), and 506 of I.P.C. and Section 54 of the Disaster Management Act, 2005. A complaint had been lodged by one to the Additional Director General of Police, CID, Andhra Pradesh alleging that while he was watching Telugu One Channel in Youtube, he noticed a false and fabricated audio clip is being circulating in social media against the Chief Minister of Andhra Pradesh and that the said news item was posted for the purpose of causing annoyance, inconvenience, anger, insult, injury, criminal intimidation, hatred, ill will against the government and the Chief Minister and the same has created panic in the minds of the people that state is unsafe during the COVID Pandamic. It was further alleged that the fabricated audio clip is appearing in multiple platforms like whatsapp, twitter, facebook, tik tak, youtube and help app, to mislead the public and make them nurse ill will, hatred against YS Jagan Mohan Reddy, his family, the A.P. Government and Y.S.R.Congress Party.

"Everyone knows about the unpleasant relationship between police and community which creates difficulties during investigation. Police expect that all difficulties in society should be solved by the police, but the basic duty of police is protection of human life, liberty and property and enforcement of law and order", said the judge.

The bench proceeded to observe that increasing crime, growing pressure of living, rising population, labour disputes, problems of students, political activities with the call of extremists, enforcement of social and economic legislation etc. have added a new dimension of police tasks in the Country. The lack of public co- operation in police work makes it difficult to discharge their function efficiently. "It is common fact that law-abiding citizens have greater fear for police than offenders and do not hesitate to use violence, undue influence to secure their escape, threats etc. On the other hand normal people avoid contact with the public and prefer to keep away from law courts even at the loss of suffering or loss of legitimate claims rather than reporting matter to the police for their action", noted the bench.

Noting that it is of the utmost importance that people entrusted with the investigation must be scrupulously honest and efficient, otherwise cases both of innocent persons being wrongly convicted and of really guilty persons being wrongly let off are likely to occur, the bench said it is imperative on the part of the police to conduct investigation in a fair manner to see that no innocent be convicted by fabricating any evidence during investigation.

Action of the police nothing but over-enthusiasm to please the party in power - While political parties may come and go, police officials are a permanent in the service of the state government

Upon the facts of the present case, the bench ruled that the allegations made in the complaint must necessarily disclose such publication, statement or circulation of such statement containing rumour or alarming news among the public based on religion, race, place of birth, residence, language, caste or community. But in the absence of feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, the very registration of crime for the offence punishable under Section 505 (2) of I.P.C. is illegal. "I find no such two groups and such statement creates or likely to create any ill-will or hatred between two groups or classes on the basis of race, religion etc., but the allegation in the complaint is that the postings in Youtube is only to insult the government and the present Chief Minister", said the bench, adding that the Government and the Chief Minister cannot constitute as one group or two groups since the Government is manned by Chief Minister being a people's representative.

The bench said that in the absence of any other group, creation of such enmity, ill-will etc. on the basis of religion etc., the allegation does not constitute an offence punishable under Section 505 (2) of I.P.C. "But the CID being the instrumentality of the State working under the thumb of the State, for the reasons best known to them by abuse of process of law, registered crime against the petitioner for the offence punishable under Section 505 (2) of I.P.C", remarked the bench.

Noting that the prime duty of police, before commencing investigation, the police officer has to satisfy that the allegation made in the complaint prima facie constitute cognizable offence to proceed further with the investigation, the bench said that unless such acts of the officers are controlled, it may lead to serious consequences causing damage to life, liberty and reputation of an individual which is violative of fundamental rights guaranteed under Article 21 of the Constitution of India.

As regards section 506 IPC, the bench noted that in the present case, there was absolutely no threat to the public or causing alarm in the mind of any person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. At best, the allegations in the complaint would disclose that the statement in the social platform may create or likely to create panic in the minds of the public that the entry into the State of Andhra Pradesh is not safe during Covid-19 period. "Such statement should be judged from the standards of reasonable, strong-minded and courageous men. The perspective of weak and vacillating minds cannot be considered. On close analysis of the compliant, the allegations made in it do not constitute an offence punishable under Section 506 of I.P.C", concluded the bench, stating that the very registration of crime against the petitioner for the offence punishable under Section 506 of I.P.C. is abuse of process of law. On this ground, the Court can quash the proceedings against the petitioner for the offence punishable under Section 506 of I.P.C.

The bench further reflected that section 188 of I.P.C. deals with punishment for disobedience to order duly promulgated by public servant. Here, there is absolutely nothing to show an ordinance was promulgated by any public servant and it is in force in the area where the complainant resided. However, there is a clear bar under Section 195 (1) (a) of Cr.P.C. from taking cognizance by the police. Section 195 of Cr.P.C. deals with prosecution for contempt of lawful authority or public servants, for offences against public justice and for offence relating to documents given in evidence. As per Section 195 (1) (a) (i) of Cr.P.C. no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of I.P.C., except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Therefore, the complaint must be lodged by a public servant, who promulgated the order or by a person, administratively subordinate to him. Here, there is absolutely no complaint from a public servant. When the police registered a crime without compliance of Section 195 (1) (a) (i) of Cr.P.C., it would vitiate the prosecution since compliance of Section 195 (1) (a) (i) of Cr.P.C. is mandatory.

Section 54 of the DM Act deals with punishment for false warning as to disaster or its severity or magnitude, leading to panic. The person who committed the offence under Section 54 of Disaster Management Act shall be punishable with imprisonment which may extend to one year or with fine and it is a non-cognizable offence. The bench noted that based on the complaint, the Police cannot register a crime in view of the bar contained in Section 60 of the Disaster Management Act. As per Section 60 of the Disaster Management Act, no court shall take cognizance of an offence under this Act except on a complaint made by (a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or (b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid. "Section 60 of the Disaster Management Act is almost identical to Section 195 (1) of Cr.P.C., non-compliance of the same vitiates the entire F.I.R. Hence, registration of crime for the offence punishable under Section 54 of the Disaster Management Act against the petitioner based on the complaint of respondent No.4 is a grave illegality by abusing the process of law", ruled the bench.

"The prime duties of the police, either the Criminal Investigation Department or Law and Order, the prime duty of the police is to protect the public from law breakers. But, here the police themselves by abuse of law registered crime against this petitioner for various offences, though the allegations made in the complaint do not attract any of the offences punishable under Section 505(2) and Section 506 I.P.C.", said the bench.

The bench commented that the action of the CID in registering and investigating into it, in seizing the electronic equipment from the office of the petitioner is nothing but exhibiting over enthusiasm by the officials to please the political party in power. "The officials are the permanent officials working under the control of State Government irrespective of the political party in power. The parties may come into power and lose power after sometime, but the officer shall continue to work irrespective of the party in power", said the bench. The bench opined that the registration of power by abusing process of law is a matter of serious concern, as it causes incalculable damage not only to the life and liberty of this petitioner but also to his business directly violating the fundamental right guaranteed under Articles 19 and 21 of the Constitution of India.

"I, therefore hold that the action of the third respondent is nothing but abuse of process of law in registering crime against the petitioner believing the allegations made in the complaint on their face value as true, the Court can exercise power to quash the proceedings by exercising power under Article 226 of the Constitution of India, which is identical to the power under Section 482 of Cr.P.C.", ruled the bench.

Duties of the Police

The bench highlighted that the primary duty of the police is to maintain law and order since they are working for providing protection to the public from any injury.

The most important traditional function of the police is to deal with the criminal in an action, this function required detection and investigation of crime, arrest of the offenders and the collection of evidence against those who are prosecuted in Court of law. They play a vital role in bringing the offenders to justice. "It is generally believed that police are obliged by the nature of their duties to use violence as a measure to control and apprehend criminals in the presence of counter violence. The Apex Court has rightly said in number of cases that the duty of the Investigating Officer is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth", said the bench.

The Court continued to observe that another purpose of the police force is to effect prevention of crime. This function involves patrolling by the police and prevention action against potential wrongdoers under the vagrancy laws.

The third function of the police is owing to the growth of certain problems of the contemporary period involving the enforcement of a wide variety of regulations: "Which are not concerned directly with the criminal; direction of automobile traffic, enforcement sanitation and licensing regulations, control of crowds, action against obscene literature and civil defense and disaster management duty"

The bench commented that the police in India have to perform all the functions enumerated above as in other countries, but their burden is exceptionally heavy due to the peculiarity of the socio-economic life of the community heterogeneous nature of the population and the existence of almost all the political philosophies. "How far are the police in India capable and adequate of meeting such a stupendous challenge? What are the various obstacles which the police face while discharging their functions?", the bench wondered.

The bench also enumerated the the difficulties faced by the police:

(1) Inadequacy of staff.

(2) Abuse of statements taken by police.
(3) Lack of Co-ordination with other investigating agencies.

(4) Police and its relations with the community.

Click here to download the Petition 

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