"You Are A Police Officer, You Are Failing In Your Duty If You Don't File FIR When You Know An Offence Was Committed": Bombay HC In Param Bir Singh Vs Anil Deshmukh

While hearing of the matter will continue post lunch, a Division Bench comprising of Chief Justice Dipankar Datta and Justice GS Kulkarni has expressed its disinclination to order investigation into the corruption allegations against the Home Minister, in the absence of an FIR.

The Bench also rapped the former IPS Officer for not raising his voice or filing a FIR when he was aware of the alleged corrupt practices in the State administration.

"You (Param Bir Singh) are a police officer. If you find an offence has been committed you are duty, you are duty-bound to file an FIR. Why did you not do it?
You are failing in your duty if you don't file an FIR when you know an offence has been committed. Simply writing letters to the CM won't do. We can pull you up for it. If any citizen finds an offence is being committed he is duty-bound to file an FIR," the Bench observed.

During the hearing, the Bench also observed that it is only in extremely rare cases that the Court can order an FIR and otherwise, the correct course of action would be to approach a Magistrate Court under Section 156(3) of CrPC.

"It is only in very-very rare cases the court can order an FIR. Please don't convert the High Court into a Magistrate's Court to order an FIR u/s 156(3). Approach the magistrate.
You are a Police Commissioner, why should the law be set aside for you? Are police officers, ministers and politicians all above the law? Don't view yourself so high, the law is above you," the CJ sternly remarked.

The Bench has further observed that by the virtue of his official position, Singh is well aware of the criminal procedure of law and thus, without lodging of FIR, his petition appears to be sans substance.

It said, "The petitioner is no lay man, he knows the CrPC well. If he has no faith in the state, he can approach others. This petition in the absence of an FIR prima facie appears to be without substance."

Courtroom Exchange

At the outset, the Division bench told Senior Advocate Vikram Nankani, appearing for Param Bir Singh, that the court will have to be addressed on two aspects:

1. Maintainability of the PIL

2. Power of Court to direct investigation in the absence of an FIR

"You have to satisfy us on these points if you want any interim relief from us," CJ Datta told Nankani.

Issue of Maintainability

During the hearing, AG Ashutosh Kumbhakoni took objection to the maintainability of the petition. He submitted that Singh is "vitally interested" in both the prayers. "In the body of the petition, he is playing the victim card," the AG alleged.

The Division Bench also told Nankani that it cannot entertain a service matter in a PIL. "In a PIL can any dispute related to service matters be adjudicated?" CJ Datta asked.

However, Nankani clarified that Singh is not challenging his transfer orders and that the petition is limited to "interference by political masters".

AG Kumbhakoni insisted that the PIL is not maintainable as Singh has personal interest in the matter. He referred to Singh's petition which states that he has no personal interest in filing the present PIL. "Patently false statement on oath. Can such a person be believed on any allegation at all?" the AG contended.

CJ Datta however made it clear that if the court is of the view, the petition can be converted into a private matter.

Nevertheless, the AG insisted that Singh is a "disgruntled" litigant who has concealed the fact of his enmity between with the Home Minister.

The AG referred to the case of Kushum Lata v. Union of India & Ors., where it was held that "When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out."

Investigation without FIR

"Where is the FIR which should be entrusted to the CBI for investigation," the Bench asked Nankani. It was prima facie of the opinion that investigation into the allegations made by Singh is not possible as he has not filed a FIR.

"Come to the prayers. Investigation into what? Where is the FIR? What stopped you from approaching the police?... We are of the prima facie opinion that without an FIR there can be no investigation," CJ Datta remarked.

Nankani however argued that the letter written by Singh to the Chief Minister contains 'hard facts' and highlights the problems being faced by the police force.

He insisted that the revelation must be investigated as it has come from a person (Param Bir Singh) who occupied the highest police post and served the force for three decades. "This is something that needs to be looked into by an independent investigating agency," Nankani submitted.

He also referred to the case of Lalita Kumari v. Govt of UP on mandatory registration of FIR.

"But where is the FIR here to direct further investigation? An FIR is the first step into setting the criminal law in motion," CJ Datta said.

He said that there is no need to cite the Lalita Kumari judgment in this matter. "Tell us one judgement that it is within our power to direct that an FIR should be lodged…" he observed.

He further asked if a complaint has been made to either the state police or the CBI.

Nankani then referred to the case of Vishwanath Chaturvedi v. Union of India, which he submitted arose out of similar facts.

[In this case, the Supreme Court asked CBI to investigate the allegations of corruption levelled by the Petitioner against the UP Administration. In the facts of the case, the Petitioner had approached the judicial authorities after no action was taken on representations made before Home Minister and the Governor of the State.]

Nankani submitted that if a complaint is made to the highest functionary of the State and no action is taken, the Court can step in under Article 226 of the Constitution.

The AG on the other hand referred to several judgements to argue that it is not proper for the Court to pass directions for initiation of investigation.

The Division Bench orally remarked that there can be no investigation without FIR. CJ Datta has made it clear that it is only in "very-very rare cases" that the Court can order an FIR.

"This is the law that there can be no investigation without FIR. There can be cases where there is a riot and someone calls up the nearby police station. Do they wait for writing down FIR or will the police act in terms of Section 149 CrPC to prevent the commission of cognizable offence?

It is therefore in those cases that the court would accept machinery being set in motion. But there has to be some information...information of an offence."

Availability of Direct Evidence

During the hearing, CJ Datta also enquired if Singh has any first-hand information with respect to the allegations of corruption.

"Is there any first-hand information that the Home Minister said something in your presence? Is there an affidavit annexed of any of the officers that this was said to them or in their presence," asked the CJ.

The AG told the Bench that the entire allegation of the extortion racket is "hearsay". "He is not ready to take responsibility. He is not saying, I am saying this and if it is false hang me," the AG remarked.

Background