"No One Can Refuse To Lodge FIR In A Case Like This": Gujarat High Court In PIL Over 14-Yr-Old Boy Allegedly Killed In 'Fake Encounter'

A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi was hearing a PIL by one Sohanaben Hanifkhan Malek alleging that on November 6, 2021, her father and her minor brother were allegedly killed in a “fake encounter” by a sub-inspector from Bajana police station in Patdi taluka located in district Surendranagar. The petitioner sought the registration of an FIR into the alleged incident and an independent investigation against the concerned police personnel.

Appearing for the petitioner-sister, senior advocate Yatin Oza submitted that the sister's efforts to lodge the FIR about the incident–of “killing of an innocent boy of 14 years of age in a fake encounter wherein the father of the petitioner had also been killed went in oblivion”.

Oza also submitted that the efforts made by the petitioner to lodge the FIR had not “materialized”.

“However, on the asking of the court as to whether the petitioner had approached the court of the magistrate by invoking the provisions of 156(3) CrPC no answer could be given by the learned senior advocate appearing for the petitioner,” the bench said.

It was submitted that the efforts made by the petitioner by invoking the provisions of Section 154(3) Code of Criminal Procedure (CrPC) to lodge the FIR had “not been fruitful”. It was further contended by Oza that the high court within the exercise of its jurisdiction under Article 226 of Constitution of India can give directions to lodge the FIR.

Section 154(3) CrPC states that if an officer in charge of a police station refuses to record the information given by a person concerning a cognisable offence, then the aggrieved person may send the information to the Superintendent of Police (SP) concerned. If the SP is satisfied that the information discloses the commission of a cognisable offence, he shall either investigate the case himself or direct an investigation by a police officer subordinate to him.

High Court's directions

After hearing the matter the bench directed, “Taking note of the above, without entering into the merits of the claim of the petition, the present petition is being disposed of with the observation that the petitioner–namely the daughter and sister of the two deceased is at liberty to approach the court of the concerned magistrate by moving an application under 156(3) of CrPC. On such an application being filed along with a copy of this order the competent magistrate shall make necessary inquiry and do the needful strictly in accordance with law”.

The bench however clarified that the “delay in approaching the court invoking jurisdiction under Section 156(3) CrPC” shall not be a reason to “reject” the petitioner's complaint.

The bench further clarified that the concerned magistrate shall make an “independent enquiry” without being influenced by the earlier report of the concerned judicial magistrate or the report of the District Superintendent of Police (DSP), Surendranagar submitted before the High Court in the PIL.

The bench also said that the “inquiry” which is to be conducted by the concerned magistrate shall be “within the scope of section 156(3) CrPC only” adding that there shall be compliance with the Supreme Court's 2014 judgment in Lalita Kumari v State of Uttar Pradesh.

Observations on non-registration of FIR in the case

Before parting however Chief Justice Agarwal orally remarked, “If a family member says that there was a fake encounter then there has to be a proper FIR. Investigation has to be conducted and everything has to be done…The 14-year-old boy, he was not an accused. That is the reason why you are supposed to…even otherwise also if an accused has been killed you cannot refuse to lodge an FIR. We are not issuing this direction today because so many years have passed on…no one can refuse to lodge a report. If someone says that my relative or so and so…even if it's not a relative (but that person says) that so and so has been killed, the report is necessary."

The Chief Justice further said that even if the police's defence was that it was an “accident, not a killing”, and if “some person/family member/witness says that it was a killing and he or she ask for lodging of an FIR and investigation, no one can refuse to lodge an FIR”.

“This is the law of the land and everyone has to follow it. We will add this in our judgement,” the Chief Justice said.

Background

According to the PIL, on November 6, 2021, at around 7-8 p.m., Police Sub-Inspector V. N. Jadeja and other Police officers came to the house of the petitioner in a private vehicle and dragged her father–Hanifkhan and put him in the vehicle that they had brought in.

Looking at this the 14-year-old brother of the petitioner followed his father, and seeing this, SI Jadeja allegedly shot the brother of the petitioner point-blank in the chest.

On seeing this, the PIL alleges, the father of the petitioner also got angry and as he came to see his child, he was also shot dead by the Police Official. The HC had issued a notice in the matter on January 5, 2022 .

The case of the Gujarat Police

On the other hand, the FIR registered in the case by SI Jadeja alleged that a piece of secret information was received regarding Hanifkhan (an alleged leader of the 'Talpatri Gang' of highway robbers) being present at his house, and pursuant to the said secret information, they all went at the house of Hanifkhan in a private vehicle.

Further, SI Jadeja has alleged that for self-defence, he had fired on Madeenkhan (brother), and thereafter, when they tried to put Hanifkhan in the car and at that time, a mob of 15-20 people attacked the police officials and at that time, they fired for self-defence and in doing so, Hanifkhan was also hit by a bullet.

It was also alleged that on account of the incident, a mob of people had gathered with weapons and had inflicted blows haphazardly on the police officials.

Case title: Sohanaben Hanifkhan Malek since minor through her guardian Hanifaben Bismillakhan Jatmalik v State of Gujarat & Ors.

LL Citation: 2024 LiveLaw (Guj) 100