Illegality of CAW Cells

This decision of the Court of Metropolitan Magistrate created a lot of stir in the year 2005, the media, the advocates, the complainants, the accused and the police all started talking about it. This decision of the Court unfolds a lot many aspects of the law for which the people are to face the atrocities of the police and the system. We have tried to produce it before the visitors of the lightinlife who would be in a position see the correct position of law. This position of law was subsequently approved by other Courts also. Here is the decision:


IN THE COURT OF SH. ***************** M.M. KKD. COURTS DELHI


F.I.R. No. : 443/04
U/Sec. : 498A, 406/34 I.P.C.
P.S. : Seelam Pur

ORDER:


The complainant Rehana Parveen D/o Sh. ************************************************* Seelam Pur, moved an application before the Court getting appropriate correction done in the legal provisions invoked by the IO in relation to an F.I.R. No. 443/04, U/Sec. 498 A, 406, 323 / 34 I.P.C. Her point was that the police had not registered the case as per the grievances stated by her to the IO. A report from the IO / SHO was called. It appeared that the IO, before lodging the F.I.R. in the aforesaid case, conducted an ‘Enquiry’ for six long months and obtained legal opinion.

This Court passed an order dt. 16.10.04 holding that the Law of the Land as laid down by the Hon'ble Supreme Court in Ch. Bhajan Lal AIR 1992 SC 604, Meharaj Singh (1994) SCC 188 and Girish Yadav AIR 1996 SC 3098 makes it obligatory for the IO / SHO to lodge an FIR immediately after receiving an information relating to the commission of a cognizable offences (Cases referred to the C.A.W. Cell are U/Sec. 498-A & 406 IPC which both are cognizable). It was further held, in that order that the IO in this case willfully, knowingly and illegally had embellished the ‘first information’ received from the complainant. The IO conducted an ‘Enquiry’ for six long months defying the Law of the Land. On this illegal practice being adopted by the IO the A.C.P. C.A.W. Cell Seelam Pur, in charge of all the affairs, was summoned for explanation.

On 02.11.04 the A.C.P. C.A.W. Cell Seelam Pur and the Inspr. from the same cell appeared and submitted that they are doing all this in pursuance of Standing Orders from the office of the Commissioner of Delhi Police through the D.C.P. Nanak Pura. The D.C.P. Nanak Pura or Jt. Commissioner of Delhi Police, the Incharge of all Delhi C.A.W. Cells were summoned to explain the legality of IO’s action pursuant to their dictates.

On 23.11.04 the D.C.P. C.A.W. Cell Nanak Pura appeared and the A.C.P. C.A.W. Cell Seelam Pur was also present. Both of them filed similar ‘Replies Cum Informative Brochures’. The A.C.P. and D.C.P. both submitted at length showing their bonafide in the ‘Enquiries’ being so conducted by the C.A.W. Cells.

In the informative Brochure produced by the A.C.P. and the D.C.P. regarding the working of C.A.W. Cell, the ‘PURPOSE OF ENQUIRY’ is given as follows:

1. To examine in detail the Commission of offences against women
2. To provide assistance in case the complainant wants re-conciliation
3. To pin point the guilty persons
4. To collect evidence for prosecution during the course of enquiry
5. To prevent miscarriage of justice
 

Further guidelines for the ‘PROCEDURE’ to be followed by the EOs from C.A.W. Cell during their ‘Enquiries’ are given as follows:

1. Complete understanding of the complaint to identify the nature of offence committed
2. To make points for enquiry
3. Collection of evidence required for each point, list of witnesses to be examined, evidence to be elicited from each witness
4. Independent evidence
5. Examination of witnesses
6. Conducting local enquiry if considered necessary

Thereafter, the particular guidelines are laid down by the office of the Commissioner of Delhi Police, as to how an officer from C.A.W. Cell is to hold ‘Enquiry’ pertaining to the cases of 498 A and 406 I.P.C. All the officers therefrom led detailed oral arguments. They tried to show that the enquiries by C.A.W. Cell are bonafide, with some superior objective rather than mere ‘law enforcing’ and to cater the needs of the society particularly the vulnerable sections of the society. The officers even went to the extent to say that they are engaged in ‘Pre-Trial Justice Dispensation’ because the Courts would also do the same during trial. (In their replies both the D.C.P. and A.C.P. equated their activities to the proceedings in the matrimonial Courts).

The officers i.e. the A.C.P. and the D.C.P. raised the following points:

1. That The Commissioner of Delhi Police is fully empowered under the provisions of Delhi Police Act to constitute the C.A.W. Cells and their Constitution is quite legal

2. The C.A.W. Cell is not the SHO i.e. the officer in charge of a police station, in the eyes of the law and hence the same is not legally bound to follow the law meant for an SHO i.e. to lodge an FIR and register a criminal case immediately after receiving the information regarding the commission of a cognizable offence (e.g. the cases U/Sec. 498-A & 406 IPC)

3. The C.A.W. Cell tries to sooth the problem, by holding an ‘Enquiry’, and it is after a total failure in conciliation when a criminal case is registered

4. The complaints from the complainants are usually ‘much inflated’ and the C.A.W. Cell first sifts the chaff from the grain and only the real facts are brought on the record

5. If the complaints are registered straightaway then the immediate arrest of the accused would cause irreparable damage to the relations between the parties

6. No Court has ever pointed out the illegality in the working of the C.A.W. Cell

The aforesaid officers also produced some tabular data to show that due to the initiative of the C.A.W. Cell a large number of marriages could be saved.

In the background of these facts and circumstances, the officers from the C.A.W. Cell stated that being empowered U/Sec. 19 of Delhi Police Act, The Commissioner of Delhi Police, by its S.O. No. 281/89 and S.O. No. 99/94 constituted the C.A.W. Cells. Regarding the working, they submitted, through their written replies that


“on receiving the complaints the C.A.W. Cells first tries to sort out the differences and to unite them and to make marriage a success. On failure of reconciliation attempts, the law takes its own course. The proceedings of C.A.W. Cell are in the nature of enquiry to find out the truth regarding the allegations made in the complaint before registering the case and also to reconcile the matter, if possible, with the consent of both parties. In case, the allegations, made against the husband etc. are not found to be true or covered under sec. 498 A etc. the complaint is closed.

It is always kept in mind that petitioner / wife should not drag the husband / respondent straight to the Court hastily to make relations between the couple more strained……It is not out of place to mention that even the matrimonial Courts during divorce proceedings, try to bring about reconciliation.” (Sic)


Now the points raised by the officers from the C.A.W. Cell are discussed in the light of the law, as laid down by the statutes and interpreted by the Hon'ble superior Courts.

Point 1:

This has never been a point of discussion in the present context if the Commissioner of Delhi Police could constitute the C.A.W. Cells. Nevertheless, once the point has been raised by the police officers it should be looked into legally. The INTRODUCTION to the Delhi Police Act 1978 reads as:

In a modern state, the very foundation of civilized society is based upon the concept of “rule of law”. The word “police” means civil force of a state, responsible for maintaining public order. Thus, the police play a very crucial role of law enforcing agency in a welfare State. To amend and consolidate the law relating to the regulation of the police in the Union Territory of Delhi a Bill was introduced in the Parliament.

The Preamble of the Act reads as:

An Act to amend and consolidate the law relating to the regulation of the police in the Union Territory of Delhi

This Act begins with, elaborating the word “Police” which means ‘civil force of a State, responsible for maintaining public order’. This is a well Settled Principle of Law that any creation of a statute cannot go beyond the contours of that very statute. If a body or an office has been created or constituted by or under the Delhi Police Act, 1978 then that body or office cannot transcend the peripheries of the Delhi Police Act. The Delhi Police Act has recognized the Police as a ‘civil force, responsible for maintaining the public order’. If any creation of the Delhi Police Act goes beyond this responsibility ‘for maintaining the public order’ then by its deeds it violates the very condition of its existence i.e. the Delhi Police Act.

It has been submitted by both the police officers that the Commissioner of Delhi Police is empowered vide sec. 19 the Delhi Police Act to constitute various cells and wings etc. and hence the constitution of the C.A.W. Cell is not bad in law.

There is no dispute on their submission that the Commissioner of Delhi Police has power under the Delhi Police Act to constitute various cells and wings etc. Well, the Commissioner of Delhi Police can do that. However, those cells and wings etc. cannot be asked to undertake the functions which are not permissible under the Parent Statute i.e. the Delhi Police Act.

Under the Delhi Police Act, the Commissioner of Delhi Police cannot constitute a cell and ask it to provide the better civic amenities in place of the Municipal Corporation of Delhi. Nor any cell constituted by the Commissioner of Delhi Police can facilitate ‘better team management’ in place of BCCI, with an objective to improve the performance of Indian Cricket Team. The good objective does not justify the transgression of the Parent Statute.

Any statutory creation by the Commissioner of Delhi Police is to contain within the amplitudes permissible under the Delhi Police Act. They cannot go beyond the ‘Policing’ i.e. they cannot, for any reason whatsoever, be anything more than being ‘responsible for maintaining public order’.

Point 2:

The officers argued that the C.A.W. Cell is not an SHO within the meaning of the law and hence C.A.W. Cell is not under the obligation to lodge an F.I.R. immediately after the receipt of information of commission of a cognizable offence. The A.C.P. and the D.C.P. submitted that since the C.A.W. Cell is not an SHO therefore it could undertake an ‘Enquiry’ (AND NOT THE INVESTIGATION AFTER AN F.I.R.), withholding the registration of an F.I.R.

Various powers are enjoyed by the SHO i.e. The Officer In Charge of a Police Station under the Code of Criminal Procedure. Ch. XII read with Sec. 2 (h) and 4 CrPC empowers the SHO to investigate the cognizable offences (defined U/Sec. 2 (c) CrPC) under the Indian Penal Code. Clause (h) of Sec. 2 Cr.P.C. gives the definition of 'investigation' and it says that investigation includes

"all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a magistrate) who is authorized by a Magistrate in this behalf".

Section 4 CrPC reads:

1. all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

2. all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
 

It is apparent from this section that the provisions of the Criminal procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. (Khatri V. State Of Bihar AIR 1981 SC 1068)


In H. N. Rishbud v. State of Delhi AIR 1955 SC 196 it had been held that "[U]nder the Code, investigation consists generally of the following steps:
 

(1) Proceeding to the spot,

(2) Ascertainment of the facts and circumstances of the case,

(3) Discovery and arrest of the suspected offender,

(4) Collection of evidence relating to the commission of the offence, which may consist of
a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,
b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and

(5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under Section 173."

Apart from conducting investigation, as aforesaid, the SHO enjoys one more but very effective power. Whether an information discloses the commission of a cognizable offence – is a very crucial question. As per law only the SHO U/Sec. 154 (1), the Superintendent of Police, U/Sec. 154 (3) or the Magistrate U/Sec. 156 (3) can decide whether an information discloses the Commission of a cognizable offence.

The Superintendent and the Magistrate do it so, when the SHO fails to appreciate the cognizability of an information. Basically, it is the prerogative of the SHO U/Sec. 154(1) Cr.P.C. to decide whether an information discloses the Commission of a cognizable offence or not. None else other than an SHO can decide the question, at the first instance, whether an offence discloses the commission of a cognizable offence.

Regarding the commission of a cognizable offence, there is one more vital aspect. As per the provisions of the law it is the discretion of the SHO and the SHO only, to be satisfied about the cognizability of the offence informed. The cognizability would either be there in the information right from the time zero or it would never be there i.e. the information would disclose the commission of a cognizable offence right at the time it reaches the authority or it would never disclose it. The cognizability in an information, cannot be created by an after–effort i.e. the ‘Enquiry’ by some Non-SHO entity e.g. C.A.W. Cell.

In the next step, towards the powers of the SHO, if he does not find the information received U/Sec. 154 worth investigating, he may withhold further investigation U/Sec. 157 or release the accused U/Sec. 169 CrPC. Filing a report U/Sec. 173 CrPC is the discretion of the SHO, and none else, when he finds the evidence collected by him during the course of investigation is sufficient to support the accusation.

The A.C.P. and the D.C.P. stated, as to how the officers at C.A.W. Cell generally do it during the course of ‘Enquiries’. It is apparent from the replies filed by them that an officer from C.A.W. Cell undertakes the following steps during the course of its ‘Enquiry’:-

1. Receives the complaints from the complainants

2. Puts the legal proceedings U/Ch. XII Cr.P.C. at halt so long as their ‘Enquiry’ lasts
3. During the course of that ‘Enquiry’

a. Compels the production of documents before them
b. Summons the persons in relation to those complaints
c. Arrives at the conclusions whether the complaint discloses the information worth lodging an F.I.R.
d. Decides whether the F.I.R. is to be lodged in a particular case or not
e. Records the compromise, to the effect of compounding the offence U/Sec. 498-A I.P.C., between the parties in the name of conciliation

4. Drops the prosecution where the out come of their enquiry is suitable to their ‘notions of justice’
After going through the ‘PURPOSE OF ENQUIRY’ and ‘PROCEDURE’ (Supra) described in the SOs from the Police Deptt. and produced by the C.A.W. Cell officers, it would be clear that the EOs therein are doing nothing but investigation as defined by the statute but they call it ‘Enquiry’.

On comparing, the steps taken by C.A.W. Cell during the ‘Enquiry’ with the requisites as laid down in H. N. Rishbud (Supra), it is evident that that the C.A.W. Cell enjoys all the powers of an SHO, except the one of arrest of the accused. They receive the complaints from the complainant. They hold an enquiry under their Self Proclaimed Code to go to the spot to collect evidence, compel the production of persons and the documents and decide whether that complaint had disclosed the Commission of a cognizable offence. Despite all this, they submit that they are not the SHO in the eyes of Law.

The EOs from the C.A.W. Cell conduct their ‘Enquiry’ in clear contravention of the law. From the guidelines as provided in the Standing Orders from the Commissioner of Delhi Police, it is evident that the C.A.W. Cell starts with the categorization of the offences U/Sec. 498-A or 406 IPC. This categorization of the offences violates the very scheme of the CrPC. It violates the language of Sec. 2(h) CrPC (Supra) and also the mandate of the Hon'ble Supreme Court in Khatri Vs State (Supra). CrPC and the Hon'ble Supreme Court prescribe that only The Officer In Charge of a Police Station i.e. the SHO can do it U/Ch. XII CrPC in a manner stipulated therein. The cognizable offences (i.e. offences U/Sec. 498-A & 406 IPC) cannot be dealt with in a manner not given in the CrPC. This is a statutory mandate. The C.A.W. Cells deal with the cognizable offences in a manner, not only unknown to the CrPC but also which is in flagrant violation of the provisions of the CrPC.

U/Ch. XI CrPC there are provisions for ‘Preventive Action of the Police’. The police officers, may they be in the District Police or in C.A.W. Cell or anywhere else, they are duty bound to prevent the commission of the cognizable offence. If the information, received by C.A.W. Cell discloses the Commission of a cognizable offence and the Cell withholds it, before registration of a criminal case pursuant thereto, then the officer in the C.A.W. Cell would be liable for the dereliction in the duties on its part as stated in Ch. XI CrPC. Under this Ch. XI CrPC the Police officers are to prevent and curb (and not to reconcile) the Commission of cognizable offences.

However, if they contend that they are not the SHO within the eyes of law, then they are not empowered to decide whether the information discloses the commission of a cognizable offence. In Rishbud (Supra) a three-Judge Bench of the Hon'ble Supreme Court, after delineating the different steps in investigation as contemplated in the Code, has pointed out that the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. But here this power is being exercised by the officers of C.A.W. Cell. The officers from C.A.W. Cell cannot decide whether the accused is to be sent for trial. Only the SHO can do that. Nevertheless, for withholding the complaint of the aforesaid nature, they are liable U/Ch. XI CrPC for withholding an information of a cognizable offence. By their this act, the officers of Delhi Police no matter posted in C.A.W. Cells, per se violate the very condition of their existence i.e. the Delhi Police Act, which assigns them ‘a very crucial role of a law enforcing agency’.

While replying to this argument of the C.A.W. Cell the Ld. Counsel for the complainant brought an irony to the notice of the Court. He stated that SI ********* conducted the ‘Enquiry’ as EO. As per this argument of C.A.W. Cell then she was not an SHO. However, after six months, she decided to lodge an FIR and thereafter she started to investigate the case and suo moto became an SHO (Sec. 156 (1) CrPC) without any administrative or legal mandate from the superior authorities. The person, who was not an SHO, became an SHO as per his/her wishes merely by deciding that a particular complaint is to be reduced into an FIR. Ld. Counsel for the complainant argued before this Court,

“Your Honour! this is not Law; this is Magic” (Sic).

Point 3:

The A.C.P. and the D.C.P. from the C.A.W. Cell submit that they perform a social role when they counsel the parties i.e. the complainant and the accused. They submitted that in several cases, they get success. Husband and wife start living together and the case is ended up even prior to the Court-proceedings. Statistics have been produced before the Court.

As far as their social intention to mitigate the cases pending with them, is concerned no comment is made. The Courts are concerned only with the question as to whether the law was followed in doing so or not.

The matrimonial disputes have multiple aspects e.g. social, economical, financial, psychological, physical and legal etc The Police and the ‘Courts of law’ are concerned with the legal aspect only or that much of other aspects as are allowed by the law itself e.g. in Mahila Courts and the Family Courts. The Delhi Police, being a creation of the statute can perform only the statutory functions. If they do something co-statutory or extra-statutory, as in the present case, they shall have to explain it in each set of facts and circumstances.

When a complaint is pending ‘Enquiry’ before an EO of C.A.W. Cell, it causes miscarriage of justice to both of the complainant and the accused.

It causes an injustice to the complainant. As discussed in the order dt. 16.10.04 the Hon'ble Supreme Court has ruled that the F.I.R. should contain the ‘earliest and original’ version of the facts. Nevertheless, in all cases, via C.A.W. Cell, the F.I.R. is never the ‘earliest and original’ version from the complainant. It is invariably ‘embellished’ with the ‘evidence and legal opinion’ collected by the EO during the ‘Enquiry’.

It creates a rather an avoidable legal impasse. In the order dt. 16.10.04 this Court observed,

“Consequent to the so called inquiry, the aforesaid I.O., in this case has caused a ‘Legal Catastrophe’. The F.I.R. should contain the earliest version of the offence as has been laid down by the Hon'ble Supreme Court in the Judgments above. The I.O. has knowingly been instrumental in erasing that earliest version of the complaint from the record. The Courts in future would never be in a position to know that ‘earliest version’ just because of the I.O.’s aforesaid inquiry. This would cause delay in expeditious disposal of the case and administering justice in the facts and circumstances of this case.

Further there is always a difference in evidentiary weight of the F.I.R. and the Statements U/Sec. 161 Cr.P.C. But as the I.O. has done an inquiry before the lodging of the F.I.R. therefore whatever was done and recorded by the I.O. in the present case was “during the course of the investigation”. Consequently the F.I.R. itself is a statement recorded U/Sec. 161 Cr.P.C. because it was recorded during the course of investigation. The I.O. has caused a great legal impasse because this case would be without the real F.I.R.

Whatever document is there in the form of the F.I.R. it has the qualities of a report U/Sec. 173 Cr.P.C. also because the same is prepared after the inquiry conducted and Legal Opinion obtained by the I.O. But this cannot be called the complete Charge sheet as this was not forwarded by the senior Officer of the Police as required U/Sec. 158 and 173 Cr.P.C.

The inquiry purportedly to have been conducted by the I.O. is non est because that was done prior to the lodging of the F.I.R. As per the law laid down by the Hon'ble Supreme Court in Bhajan Lal (Supra) and by the Hon'ble Delhi High Court in Kuldeep Singh (Supra) no inquiry or investigation can be done without lodging an F.I.R.

There would be no record of these inquiry proceedings and hence the Court, the Police and all the concerned ones including the Ld. Prosecutors would be suffering from their unavailability as the requirements of sec 172 Cr.P.C. would have not been complied with by the I.O."

The I.O. has created a web of confusion and illegality wherein the amputated law and its procedure are lying trapped. As a result of the valour and gallantry of the I.O. the F.I.R. is not the F.I.R. as per law and it appears like a report U/Sec. 173 Cr.P.C., but it is not that report also because it falls short of requirements of Secs. 158 and 173 Cr.P.C. The Proceedings of diary U/Sec. 172 Cr.P.C. appears to be missing from the record. This may in itself be the subject matter of a separate inquiry as to which document is the F.I.R. and which one is a statement U/Sec. 161 Cr.P.C. and which one is or would be the Charge sheet U/Sec. 173 Cr.P.C.


The officers from C.A.W. Cell argued that a fresh case diary, after the registration of F.I.R., would be written containing the fresh proceedings and the statements of the witnesses etc. This would create a bigger havoc. The Courts would then have to decide the status of ‘previous statements’ vis a vis Sec. 157 Evidence Act amongst those recorded during the ‘Enquiry’ by C.A.W. Cell and then by some other IO, during the ‘investigation’, after registration of the F.I.R. This all makes a simple thing – investigation, a very complicated affair of law and arguments. The complainant, already a victim of circumstances finds herself being entrapped in the legal tangles. Her fumbling scream would find itself buried deep down the papers in various files, some from the C.A.W. Cell and other from the Police Station. This ‘Enquiry’ of C.A.W. Cell would need, one more judicial inquiry to decide as to which document of the ‘Enquiry’ means what in the eyes of law.

The accused may contend, as the Counsel for the complainant argues, before the Courts of Law for his discharge / acquittal on several grounds. That the law was not followed in his case; that he faced two investigations – one by C.A.W. Cell and other by the SHO concerned; that original evidence was embellished by the C.A.W. Cell and what the IO collected, during investigation was the discriminately sifted material; that during the investigation the Law of the Land was not followed to his disadvantage. All these arguments of accused would help him go scot-free. Thus, in a way the C.A.W. Cell, by way of its ‘Enquiry’ prepares the grounds at a pre – trial stage, for discharge / acquittal of the accused to his advantage and to the disadvantage of the victim.

The complainant is put at loss in one more way. The offences U/Sec. 498-A I.P.C. might involve some physical violence, which needs immediate collection of evidence by the police and recording of the statements of the witnesses. There may further be a need to remove victim / injured from the company of the assailant. But if the Law of the Land is pegged aside and the process of investigation U/Ch. XII Cr.P.C. is put at halt then there would be all likelihood to cause an irreparable loss to the complainant and prepare the ground of discharge / acquittal of the accused even at the pre-trial stage. This all is done in the name of holding an ‘Enquiry’ by the C.A.W. Cell.

Similarly, in the offences U/Sec. 406 I.P.C. if some of the Stridhan is misappropriated just because of the so-called ‘Enquiry’ by the C.A.W. Cell then also the culpability ought to be fixed.

The accused is also fully exploited. For the accused, there is complaint against him and the Police are seized of the matter. It has been a routine experience in the Courts that a common man, may it be the complainant or the accused, does not know the difference between the Police and the C.A.W. Cell (as it is argued by the officers that they are not SHO in the eyes of Law). For a common man both connote the same thing. The accused cannot approach the Courts U/Sec. 438 or 437 & 439 Cr.P.C. as by that time no FIR / Case has been registered. The accused are completely vulnerable before the officers of C.A.W. Cell, holding ‘Enquiry’ being empowered and equipped with the aforesaid SOs from the Police Deptt.


There are several complaint cases pending in this Court against the officers of the C.A.W. Cell that they demand money from them. Two or three complaints were listed on 02.11.04 wherein the A.C.P. C.A.W. Cell Seelam Pur was directed to look into the matters of demand of money. In one such case titled State Vs Haroon the A.C.P. undertook not to call the accused persons to the C.A.W. Cell by the time the requirements of the Law are not fulfilled. It being part of the Judicial Proceedings, the judicial notice of the same can be taken. In the present case also, the Ld. Counsel for the complainant argues the officers of the police (in fact they are the officers of C.A.W. Cell) are not conducting the proper investigation because the complainant / victim is a poor lady and could not pay the then EO and now IO SI ********* and her Constable ****** sufficiently. Against this very EO/IO ******** and her constable ******* there is one more complaint case CC No. 3249 / 2004 pending in this Court. In that complaint case, the statement of the witnesses on oath has been recorded. The complainant and his witnesses averred before the Court that the money was demanded from the complainant therein and when it was not paid he was beaten up and addressed in the name of his caste and then, thereafter the money was extorted. As this all came on record, during the judicial proceedings before this Court, the judicial notice of the same may be taken, here also.

As it has been discussed in this order earlier, there would be a legal question whether the officers from C.A.W. Cell would be in a position to claim immunity U/Sec. 197 Cr.P.C. where they have acted outside the purview of their legal powers.

Point 4:

The contention of the C.A.W. Cell is that the complaints are usually much inflated and hence by holding an ‘Enquiry’ they separate chaff from the grain. If it is all chaff, they throw it in the legal dustbin and if there is grain then they send it for the registration of an FIR. They say that they first decide, by holding an ‘Enquiry’ as to whether the cognizable offence is made out or not. However, legally they cannot do it, as discussed earlier in this order. But in Courts, the people give a different version. If the parties, generally the accused side succumbs to their pressure, it is recorded as a compromise. If the party is resilient enough, it is termed as non-compromisable and the same is sent for registration of FIR.

They say that they enquire whether a cognizable offence is made out or not. But, if they are not the SHO then who are they to decide about the cognizability of an information. If the officers from C.A.W. Cell are not SHO in the eyes of the law, then they have no authority of the law to decide whether a particular complaint deserves the lodging of an FIR. Moreover, this is exactly what an SHO does in the police station. The only difference is that the SHO is under the legal obligation to do it then and there but the C.A.W. Cell has got no time limit to do it. As per the information made available by these officers, sometimes the C.A.W. Cell takes more than a year to decide whether or not to lodge an F.I.R. and register a criminal case. During the pendency of the aforesaid ‘Enquiry’ the parties are tried without a judicial trial. The C.A.W. Cell is enjoying the powers of an SHO without being burdened by its responsibilities. The C.A.W. Cell is doing the same activity, as is done by the SHO (i.e. the officer in charge of a police station) U/Ch. XII Cr.P.C. However, the C.A.W. Cell has employed an altogether different nomenclature.

Courts are not swayed by the pseudo names.

The officers from the C.A.W. Cell tried to justify the ‘Enquiry’ by their EOs on the ground that the process U/Ch. XII CrPC is irreversible. If the process were once started, there would be no chance to return to the ground zero. The possibility of ‘compromises’ would be marred. The process once started would culminate in the certain destruction of the complainant’s family i.e. her relations with her husband. After the FIR, the scope of the EOs from the C.A.W. Cell, to save the nuptial knot of the complainant would be minimized. Their, this belief is not well founded in the eyes of the law.

A conjoint reading of Sec.s 2(h), 4, 154 and 157 Cr.P.C. makes the position clear.


Sec. 2 (h) Cr.P.C. gives the definition of 'investigation' and it says that investigation includes

"all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a magistrate) who is authorized by a Magistrate in this behalf".


Section 4 CrPC reads:

1. all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
2. all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

In relation to law on Sec 154 Cr.P.C. the portion of the order dt. 16.10.04 is reiterated as follows:
In Bhajan Lal (Supra) the Hon'ble Supreme Court further went to say,

“If any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of s. 154(1) of the Code. Police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. `Reasonableness' or `credibility' of the said information is not a condition precedent for registration of a case. The police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information.”

In Meharaj Singh (Supra) the Hon'ble Supreme Court observed:

“The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them …”

It was further observed, in the order dt. 16.10.04 by this Court that any ‘Enquiry’ prior to the lodging of an FIR was specifically held bad in law by the Hon'ble Delhi High Court in Kuldeep Singh Vs State 1994 CrLJ Del 2502,

“The preliminary inquiry usually taken resort to by the local police in the name of 24.4 Punjab Police Rules was held invalid by the Hon'ble High Court of Delhi in Kuldip Singh, Petitioner V. State, Respondent 1994 CRLJ DEL 2502 wherein the Hon'ble High Court held that the Cr.P.C. recognizes only two types of the investigations i.e. the first in relation to the cognizable offences and the second in relation to the non cognizable offences. Both the procedures are laid down in the Cr.P.C. elaborately. No third type of offence or the inquiry is known to the Cr.P.C. The Hon'ble High Court emphatically stated:

“Rule 24.4 is not very happily worded. But reading Rule 24.4 and Sections 157 and 158 of the Code together makes it abundantly clear that on registration of a case and where Police officer has reason to suspect that the alleged offence has not been committed, he may refuse to embark upon the investigation. The investigation is the prerogative of the Police. But that is subject to the control of the judiciary as spelt out from the provisions of the Code from Sections 156 to 173 and as also discussed above. We may also notice that rules cannot override the statutory provisions. Rule cannot be given effect to in violation of the Act.”

Hence whatever the I.O. from the local police did in the name of the inquiry for six long months keeping the clouds of sorrow hovering over the helpless complainant is the glaring example of the abuse of the power and the law. This was in total defiance of the law and the ethics meant for a Police Officer.”


This Court has made these observation as aforesaid, in the order dt. 16.10.04. Now for the Law related to Sec. 157 CrPC the Hon'ble Supreme Court laid it down as follows:

In State of Bihar Vs V P Sharma AIR 1991 SC 1260, the Hon'ble Court held,

“Sec. 157 Cr.P.C. provides the procedure for investigation. If the police officer in charge of the police station, on receipt of information or otherwise, has reason to suspect the commission of a cognizable offence and is empowered to investigate into, he shall proceed in person or shall depute one of his subordinate officers not below the rank of the prescribed officer of the spot to investigate the facts and circumstances and if necessary to take measures for the discovery and arrest of the offender. The provisos (a) and (b) thereof give power, in cases of minor offences to depute some other subordinate officer or if the investigating officer is of the opinion that there is no sufficient ground for entering on investigation he shall not investigate the case”.

The Hon'ble Court further specified as to what the investigation is:

“Investigation consists of diverse steps - (1) to proceed to the spot, (2) to ascertain the facts and circumstances of the case; (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons including the accused and the reduction of their statements into writing if the officer thinks fit (Section 161 CrPC), (b) the search of places and seizure of things necessary for the investigation to be proceeded with for the trial (Section 165 CrPC etc.) and (c) recovery of the material objects or such of the information from the accused to discover, in consequence thereof, so much of information relating to discovery of facts to be proved. (Section 27 of the Indian Evidence Act)”.

"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."

The only duty cast on the investigation is to maintain a diary of his investigation, which is known as "Case Diary" under Section 172 of the Code. The entries in the case diary are not evidence nor can they be used by the accused or the Court unless the case comes under Section 172(3) of the Code. The court is entitled for perusal to enable it to find out if the investigation has been conducted on the right lines so that appropriate directions, if need be, be given and may also provide materials showing the necessity to summon witnesses not mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the court will help it to arrive at a proper decision in terms of Section 172(3) of the Code. The primary duty of the police, thus is to collect and sift the evidence of the commission of the offence to find whether the accused committed the offence or has reason to believe to have committed the offence and the evidence available is sufficient to prove the offence and to submit his report to the competent Magistrate to take cognizance of the offence.


In Ch Bhajan Lal AIR 1992 SC 604 the Hon'ble Supreme Court observed,
 

“One should not lose sight of the fact that Section 157 (1) requires the police officer to have reason to suspect only with regard to the commission of an offence which he is empowered under Section 156 to investigate, but not with regard to the involvement of an accused in the crime. Therefore, the expression "reason to suspect the commission of an offence" would mean the sagacity of rationally inferring the commission of a cognizable offence based on the specific articulate facts mentioned in the first information report as well in the annexure, if any, enclosed and any attending circumstances which may not amount to proof. In other words, the meaning of the expression "reason to suspect" has to be governed and dictated by the facts and circumstances of each case and at that stage the question of adequate proof of facts alleged in the first information report does not arise”.

Hence, the argument of the C.A.W. Cell that because of the inflated complaints the Cell is bound to hold an ‘Enquiry’ is not tenable in the eyes of the Law. Whatever they do it under the name of the ‘Enquiry’ the same can easily and legally be done during the course of investigation after lodging an FIR. The Officer In Charge of a Police Station gets very wide powers U/Sec. 157 CrPC. This power coupled with the powers of The Officer In Charge of a Police Station U/Sec. 169 CrPC makes the field of the investigation ‘Reserved and Protected’ for him.

Point 5:

The officers submitted that if the husbands were immediately arrested after lodging an F.I.R. then it would inflict an irreparable injury to the relations between the parties. To avoid this unpleasant consequence they have to have resort to the ‘Enquiry’ as aforesaid.

This Court’s observations, on this point, are twofold.

Firstly, it is for the Legislature to lay down a law and to see the circumstances warranting the amendments therein. The law enforcing agencies cannot owe, on their own, the burden to substitute a ‘More Just and Equitable Code of Procedure and Substance’.

Secondly, the circumstances for lodging an F.I.R. are not precisely the same as those are for arresting a person in relation to that F.I.R. The Hon'ble Supreme Court in JOGENDER KUMAR Vs STATE OF U P (1994) 4 SCC 260 has discussed the law on this point.

The Hon'ble Supreme Court observed,

“A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, the society came first, and that the criminal should not go free because the constable blundered. In People v. Defore (242 NY 13, 24: 150 NE 585, 589 (1926)) Justice Cardozo observed:

"The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adams case (People v. Adams (176 NY 351: 68 NE 636 (1903))) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass."

Discussing the report of Royal Commission, the Hon'ble Court observed,

“The Royal Commission suggested restrictions on the power of arrest on the basis of the "necessity of (sic) principle". The two main adjectives of this principle are that police can exercise powers only in those cases in which it was genuinely necessary to enable them to execute their duty to prevent the commission of offences, to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. The Royal Commission Report on Criminal Procedure - Sir Cyril Philips at p. 45 said:

"............ we recommend that detention upon arrest for an offence should continue only on one or more of the following criteria:

(a) the person's unwillingness to identify himself so that a summons may be served upon him;
(b) the need to prevent the continuation or repetition of that offence;
(c) the need to protect the arrested person himself or other persons or property;
(d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and
(e) the likelihood of the person failing to appear at court to answer any charge made against him."

The Royal Commission in the abovesaid report at p. 46 also suggested:

"To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to the fingerprinted or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case ............."

While discussing Third Report of The National Police Commissioner, it was observed by the Hon'ble Supreme Court,

”The National Police Commissioner in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus:
"It is obvious that a major portion of the arrests were connected with very minor protections and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all."

As on today, arrest with or without warrant, depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure"

It was further observed,

"In India, Third report of the National Police Commission at p. 32 also suggested:
"An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ............"

The Hon'ble Supreme Court directed that these observations be now incorporated in the practice related to the arrest by the police,

“The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”

The Hon’ble Supreme Court was so particular on the observance of these principles that it directed,

“These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.”

Recently the Hon'ble Delhi High Court has laid down the directions for Police, regarding arrest, in COURT ON ITS OWN MOTION Vs CBI DLCR 2004 (I) DELHI 698

Directions to the Police/Investigating Agencies like CBI etc.:-

(1) Investigating Officer, be of police station or special agency like CBI shall not arrest any person accused of having committed a cognizable and non-Bailable offence until it is very necessary for the purpose of investigation or custodial interrogation say for recovering incriminating articles or weapons of offence or eliciting information as to his accomplices etc. or for any other purpose that may help in gathering evidence to prove his guilt

(2) Arrest should always be avoided if the investigation can be completed' even otherwise and the accused gives full co-operation in completing the investigation.

(3) Arrest may be necessary, if the offence alleged is of grave nature and prescribes severe punishment and there is a likelihood of an offender either absconding or not appearing on being summoned or his fleeing away from justice or judgment

It shows that the Law on Arrest for the guidance of all the concerned ones has already been laid down by the Hon'ble Superior Courts. Despite all this, if the officers from the C.A.W. Cell submit that the law compels them to arrest an accused right after lodging an F.I.R., perfunctorily and irrespective of the facts and circumstances then their plea is not tenable in the eyes of Law.

For its ignorance of law, the Police (no matter with a new nomenclature C.A.W. Cell) cannot be allowed to flout the law in the name of ‘Enquiry’.


Point 6:


The officers from C.A.W. Cell submit that so far no Court has pointed out any illegality in the working of C.A.W. Cell.

The Courts consider a problem only when it is raised before them. The Courts are not public relation offices to make statements daily in the evening.

The officers find themselves unable to place any Judgment from the Hon'ble Superior Courts supporting the working of C.A.W. Cell in a manner observed hereinabove. However, they brought on record some portions of pleadings before the Hon'ble Delhi High Court. This Court, being the subordinate Court cannot look into the pleadings filed before the Hon'ble High Court. No outcome of those proceedings has been placed by the C.A.W. Cell officers. Therefore, in absence of any law to the contrary, being relied upon by the officers of C.A.W. Cell this Court finds itself guided by the law laid down by the Hon'ble Superior Courts as discussed hereinabove.

The argument of the officers from the C.A.W. Cell that the Courts have not shown dissatisfaction on their functioning is also not very convincing. The Hon'ble Delhi High Court in COURT ON ITS OWN MOTION (Supra) was pleased to observe (to the contrary to the argument of C.A.W. Cell),

“For instance it is the experience of this court that in offences under Sections 498A/406 IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fell under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided.
24. In this court everyday ten to twenty matters for quashing the FIRs under Sections 498A/406 IPC are taken up as all marriages end in divorce where relatives of husband or other are sent to jail. Unfortunately, sufferers are young girls between the ages 20 to 28 years. Very few cases end up in full trial and conviction. These are the offences whose deterrence has proved worse than remedy.
25. It was in view of this malady that this Court had strongly recommended to make the offence under Section 498A IPC Bailable and compoundable if society wants to salvage and save the institution of marriage. This Court again reiterate its recommendations to the Government.
26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society."

After dealing with all the points raised by the C.A.W. Cell this Court is of the opinion that in the present case, the C.A.W. Cell has acted totally against the Law of the Land as laid down by the Hon'ble Supreme Court as referred to hereinabove. The C.A.W. Cell has not furnished any legal basis of its working. The working of the C.A.W. Cell does not emerge from the CrPC. The Code of Criminal Procedure lays down that the offences of the Indian Penal Code will be dealt with in the only manner prescribed by the Code of Criminal Procedure itself. But the modus oprendi of the C.A.W. Cell is not supported by the CrPC. Moreover it appears that the SOs from the office of the Commissioner of Delhi Police are an attempt to usurp the area meant for the Legislature. The Commissioner of Delhi Police has legislated the Code of ‘Enquiry’ for the C.A.W. Cell which is not only unknown to the CrPC but it impedes also the smooth working of the later.

For the future course of action, the C.A.W. Cell is directed not to impede the legal course of law. Withholding the information related to the commission of a cognizable offence (Offences punishable U/Sec. 498-A & 406 I.P.C. both are cognizable) is against the Law of the Land as laid down in the statute books and interpreted by the Hon'ble Superior Courts. It is impressed upon the C.A.W. Cell to follow the law as laid down by the Hon'ble Supreme Court as above and as it was summarized, in Abhinandan Jha & Ors. V. Dinesh Mishra AIR 1968 SC 117,

“In order, properly, to appreciate the duties of the police, in the matter of investigation of offences, as well as their powers, if is necessary to refer to the provisions contained in Chapter XIV of the Code. That offence, and the procedure to be adopted in respect of the same. Section 155, similarly, deals with information in respect of non-cognizable offences. Sub-s. (2), of this section, prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorizes a police officer, in-charge of a police station, to investigate any cognizable case, without the order of a Magistrate. Therefore, it will be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence : Sub-s. (3), of s. 156, provides for any Magistrate empowered under s. 190, to order an investigation. In cases where a cognizable offence is suspected to have been committed, the officer, in-charge of a police station, after sending a report to the Magistrate, is entitled, under s. 157, to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b), of the proviso to s. 157 (1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of a report to be sent, under s. 157. Section 159 gives power to a Magistrate, on receiving a report under s. 157, either to direct an investigation or, himself or through another Magistrate subordinate to him. to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches, during an investigation, in the circumstances, mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the officer, Incharge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV. Section 169 authorizes a police officer to release a person from custody, on his executing a bond, to appear, if and when so required, before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer, in charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion, to justify the forwarding of the accused to a Magistrate. Section 170 empowers the officer, Incharge of a police station, after investigation under Chapter XIV and if it appears to him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take security from the accused for his appearance before the Magistrate, in cases where the offence is Bailable. Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein and in the manner indicated in that section, Section 173 provides for an investigation, under Chapter XIV, to be completed without unnecessary delay and also makes it obligatory, on the officer, Incharge of the police station. to send a report to the Magistrate concerned, in the manner provided for therein, containing the necessary particulars".

The same law was reiterated by the Hon'ble Supreme Court in the legendary case H. S. Bains, V. State AIR 1980 SC 1883,

“Chapter XII of the Code of Criminal Procedure, 1973 deals with information to the police, and their powers to investigate. Section 156(1) vests in an officer in charge of a police station the power to investigate any cognizable case, without the order of a magistrate. Section 156(3) authorizes a magistrate, empowered under Section 190, to order an investigation as mentioned in Section 156(1). The provisions from Section 157 onwards are concerned with the power and procedure for investigation. Section 169 prescribes that if upon an investigation it appears to the officer in charge of police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate, such officer shall, if such person is in custody, release him on his executing a bond (with or without sureties) to appear if and when required, before a magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial. Section 170 prescribes that if upon investigation it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate, such officer shall forward the accused under custody to a magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial. If the offence is Bailable, the officer shall take security from him for his appearance before such magistrate on a day fixed and for his attendance from day to day before such magistrate until otherwise directed. Section 173(1) casts a duty upon the police officer to complete the investigation without unnecessary delay. Section 173(2) prescribes that as soon as the investigation is completed the officer in charge of the police station shall forward to a magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub-Section."

The same proposition of law was reiterated in a recent case R. Sarala V. T. S. Velu (2000) 4 SCC 0459.

Now from the law as stated above, it is clear that the entire working of the C.A.W. Cell is entirely illegal and is against the Settled Principles of the Law. A statutory agency (as is the C.A.W. Cell in the present case) cannot justify its action on other grounds if it is violative of the statute itself. The working of the C.A.W. Cell has been found to be in contravention of the Law of the Land.

This Court, on the points raised by the C.A.W. Cell, observes as follows:

1. It is not the point of botheration whether the Commissioner of Delhi Police can constitute C.A.W. Cell or not. The point of concern is that whether the C.A.W. Cell discharges its functions as per the Law of the Land or in contravention of it. It has been found that the working of the C.A.W. Cell is in total contravention of the law as ruled down by the Hon'ble Superior Courts. This Cell not only works against the law rather its working vitiates the process established by the law.

2. If the C.A.W. Cell is not an SHO in the eyes of the law then it cannot receive the complaints in place of the SHO. They cannot cause the process U/Ch. XII CrPC be drooped on the peg of ‘Enquiry’. They have no power to decide about the cognizability of the complaint. Hence the categorization of the modes of ‘Enquiries’ by the Commissioner of Delhi Police for the offences U/Sec. 498-A and 406 I.P.C. are all baseless and arbitrary and is not sustainable in the eyes of the law.

3. If the C.A.W. Cell is willing to ‘soothe’ the problem, it can do the same ‘in addition to the process U/Ch. XII CrPC’ and not ‘in place of the process U/Ch. XII CrPC’. The law, as discussed above, may give only that much room to the C.A.W. Cell.

4. The sifting of chaff from the grain, in relation to the cognizable offences U/Sec. 498-A & 406 IPC by the C.A.W. Cell is not permissible under the Law of the Land at the Pre – FIR stage. The law is clear and unambiguous – lodge an FIR and investigate it. During investigation, the IO / SHO get very wide powers as discussed above. Calling the ‘Investigation’ an ‘Enquiry’ and defying law, as the C.A.W. Cell is doing at present is not permissible under the Law.

5. The Hon'ble Superior Courts have already laid down the law that immediate arrest is not a sine qua non after an FIR. The arrest after an FIR is a delicate matter to be effected only in the circumstances as specified by the Hon'ble Superior Courts.

6. It has been found that the Hon'ble Delhi High Court has already expressed its displeasure on the working on the C.A.W. Cell.

The dictates / directions in the form of SOs from the office of the Commissioner of Delhi Police, as it is produced before this Court are in contravention of the Law of the Land. These SOs are an attempt to substitute A Special Code Of Substance And Procedure in place of the one given by the Legislature and interpreted by the Judiciary. These SOs appear to usurp the areas meant for the Legislature and the Judiciary and hence are bad in Law.

The action of the EO/IO S.I. (******), as observed above is in contravention of the Law of the Land. This action cannot be sustained, in the eyes of law on the ground that it was pursuant to her seniors’ dictates. She has violated the Law of the Land where her duty was to upkeep the same. She deserves a strict warning, appropriate instruction and proper guidance from her Deptt. Further the senior officers, to whom the copies of this order are being sent, are directed to ensure an Abrasion-Free compliance of the Law of the Land.

A copy of this order by sent to the Commissioner of Delhi Police, the D.C.P. C.A.W. Cell Nanak Pura and the D.C.P. N/E for imparting directions to the all concerned ones, as directed in this order and the outcome be intimated to this Court on or before 15.1.05.


Announced in the open Court
Dated: 22.12.04
(*************)
M. M., Karkardooma Courts, Delhi