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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   810          OF 2013 (Arising out of SLP (CRL.) No. 9256 of 2012

Doliben Kantilal Patel               .... Appellant(s)

Versus

State of Gujarat & Anr.                       ....  Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the final judgment and  

order dated 08.11.2012 passed by the High Court of Gujarat  

at  Ahmedabad in Special  Criminal  Application No. 2206 of  

2012 whereby the High Court dismissed the petition filed by  

the appellant herein.

3) Brief facts:

(a) The appellant herein is an American Citizen of Indian  

origin  who came to  India  on 09.03.2010 to see her  ailing  

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father-Kantilal  Ambalal  Patel.   Kantilal  Ambalal  Patel  is  

having a number of properties in the form of lands, flats and  

societies in the State of Gujarat.  Arvind Jani and Jayesh Dave  

are very close friends of the father of the appellant.  They  

cheated  the  father  of  the  appellant  in  respect  of  a  land  

dealing at Rajkot against which Civil Suit No. 186 of 2010 was  

filed in the Court at Rajkot wherein the said suit was decreed  

in  the  favour  of  the  appellant  herein.  The present  appeal  

pertains  to  the  land  situated  at  Vadodra  in  the  name  of  

Gayatrinagar Cooperative Housing Society Limited (group of  

five societies).   

(b) Since certain disputes arose with respect to the above  

said  land  at  Vadodra  which,  as  per  the  appellant  herein,  

belongs to her father and the appellant had a joint account  

with  him,  one  Divyangbhai  Jha  filed  an  FIR  being  CR  No.  

5/2012 dated 21.05.2012 registered with Gandhinagar Police  

Station under Sections 406, 409, 420, 465, 467, 468, 174,  

120B and 477A of the Indian Penal Code, 1860 (in short ‘the  

IPC’)  against  the  appellant  herein  and  7  other  accused  

persons  in  respect  of  grabbing  of  lands  of  cooperative  

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societies  using  forged/fabricated  government  permission  

letters.  

(c) On 23/24.05.2012, the appellant herein was arrested at  

about midnight.  On 24.05.2012, she was produced before  

the Judicial  Magistrate  and an application for  remand was  

preferred by CID Crime, Ahmedabad.  On the very same day,  

Judicial Magistrate granted remand for a period of 5 days.   

(d) It  was alleged by the  appellant  herein  that  from the  

very first day of remand, she was repeatedly raped in police  

custody by Jayesh Dave, Divyangbhai Jha (the complainant in  

abovesaid FIR), A.A. Shaikh, the investigating officer and also  

by an unknown person.  However, Arvind Jani was present  

throughout the period of remand.  It was further alleged that  

after the period of remand, she was sent to the Central Jail,  

Sabarmati,  Gujarat  without  following  the  procedures  

prescribed under law.   

(e) On  20.06.2012,  she  wrote  an  e-mail  to  Ms.  Deepa  

Mehta,  U.S  Citizens  Services  in  U.S  Consulate,  Mumbai  

describing  the  entire  incident  of  rape  and  the  atrocities  

meted out to her.  It was also alleged in the said e-mail that  

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Arvind Jani and Jayesh Dave, in connivance with one Amam  

Shah,  owner  of  a  vernacular  daily  known  as  Gujarat  

Samachar got the complaint filed directly to the CID (Crime &  

Railways) to the effect that Kantilal Ambalal Patel and others  

are  not  the  office  bearers  of  the  abovesaid  cooperative  

society at Vadodra.  On 11.07.2012, the appellant herein was  

released on bail by the High Court of Gujarat.

(f) On 14.07.2012, the appellant  filed a  complaint  under  

Section 376 read with Section 120B of the IPC to the Police  

Inspector,  Meghani  Nagar  Police  Station,  Ahmedabad  

narrating the alleged offence cited above to have occurred  

during the period of remand.  On the very same date, based  

on the instructions of the Additional Commissioner of Police,  

Sector II,  the investigation in respect of the above offence  

was transferred to the Mahila Police Station. It was alleged by  

the appellant herein that in spite of the complaint regarding  

a serious offence of rape, no FIR was lodged at Mahila Police  

Station.   Vide  notices  dated  15/16.07.2012,  the  Police  

Inspector,  Mahila  Police  Station  called  her  to  record  her  

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statement,  but  she refused to give any statement  on the  

pretext of non-filing of FIR.   

(g) Being aggrieved by the non-filing of FIR, the appellant  

herein  filed Special  Criminal  Application No. 2206 of 2012  

before  the  High  Court  praying  for  a  direction  to  the  

authorities concerned to register an FIR and also to refer the  

matter  to  the  CBI  for  investigation.   In  the  meantime,  on  

27.07.2012, Chief of the American Citizens Services in the  

American  Consulate,  in  pursuance  of  the  e-mail  dated  

20.06.2012  forwarded  an  e-mail  to  gain  access  to  the  

appellant  herein.  The  High  Court,  vide  order  dated  

08.11.2012,  dismissed  the  petition  filed  by  the  appellant  

herein.  Being aggrieved by the order of the High Court, the  

appellant herein has preferred this appeal by way of special  

leave.

4) Heard Mr. Jaideep Gupta, learned senior counsel for the  

appellant and Mr. L. Nageshwar Rao, learned senior counsel  

for the respondents.

5) In order to understand the claim of the appellant, it is  

useful  to mention the relief  prayed for in the writ  petition  

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filed under Article 226 of the Constitution of India.  In the said  

writ  petition,  she  prayed  for  appropriate  direction  to  the  

authorities concerned, viz., the Police Inspector (Respondent  

No. 2 therein),  Meghani  Nagar Police Station, Ahmedabad,  

Gujarat to register an FIR for the offence punishable under  

Sections 376, 114 and 120B of the IPC in connection with the  

written  complaint  dated  14.07.2012  given  by  her  and,  

thereafter, to transfer the investigation of the said registered  

FIR to the CBI for further investigation.

6) It  is  not  in  dispute  that  with  reference  to  the  land  

situated at Vadodra, a complaint has been filed against the  

appellant and her father which was registered as FIR being  

CR No.5/2012 at  Gandhinagar  Police Station.   It  is  further  

seen that the appellant is an NRI/foreign national of Indian  

origin  and  she  had  been  roped  in  the  earlier  complaint  

relating to the land dispute because she had a joint account  

with her  father.   Though it  is  pointed out that  in order to  

pressurize the appellant  for  certain  other  land disputes at  

Rajkot,  she  has  been  arrested  and  raped,  since  we  are  

concerned  about  her  grievance about  the  alleged  rape  in  

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police  custody,  there  is  no  need  to  elaborate  the  details  

regarding the FIR being CR No. 5/2012.  It is the grievance of  

the appellant that the arrest was made at midnight without  

the assistance of lady police personnel and during the period  

of police custody, she was raped by the Investigating Officer  

and  other  police  personnel  for  which  a  complaint  dated  

14.07.2002 was made to Respondent No. 2 herein but  no  

action was taken on the said complaint.  Being aggrieved by  

the  non-registration  of  the  complaint,  the  appellant  

approached  the  High  Court,  under  Article  226  of  the  

Constitution, praying for the reliefs mentioned above.  It is  

also highlighted that inasmuch as the police personnel are  

involved in the crime and in view of the attitude of the State  

police  in  not  registering  her  complaint,  she  prayed  for  

investigation by the CBI.

7) It is the specific stand of the respondent-State that the  

original complaint was made by one Divyangbhai Jha which  

was registered as CR No. 5/2012 under Sections 420, 406  

and 120B of IPC against the father of the appellant and the  

appellant herein with regard to the alleged land transaction  

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at Vadodra.  It is their further claim that thereafter, she had  

been arrested and at the time of her actual arrest, though  

female police personnel  were not present but immediately  

thereafter she was taken to the nearest police station where  

female  police  personnel  were  present  and  they  remained  

with the accused throughout.  It is pointed out by the State  

that there was no complaint by the appellant with regard to  

any  harassment  from the  place  of  her  arrest  till  she  was  

taken to the nearest  police station and there was also no  

violation of the guidelines or statutory provisions.  It is further  

pointed  out  that  after  her  arrest  on  24.05.2012,  she  was  

produced before the Magistrate and, thereafter, her remand  

was granted for 5 days, i.e., from 24.05.2012 to 29.05.2012  

and on 29.05.2012, again she had been produced before the  

Magistrate  but  at  no  point  of  time,  no  complaint  about  

harassment or alleged offence of rape has been made to the  

judicial officer.  It is also pointed out that during the period of  

remand, she was taken to her house twice where her mother  

was also present and she had occasion to inform the same to  

her,  but no grievance was made to anyone.  Likewise, on  

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29.05.2012, when she was produced before the Magistrate  

and was remanded to the judicial custody, she had not made  

any  statement  or  complaint  to  the  Magistrate  about  the  

alleged  offence  of  rape  during  the  custody.   It  is  further  

pointed out that she had not disclosed the same to anyone  

including her mother, judicial officer or even to the doctors  

who have examined her.  Her medical examination was also  

done by the Doctors at the Civil Hospital on 26.05.2012 and  

29.05.2012.  It  is  further  pointed  out  that  thereafter,  in  

Sabarmati  Jail,  she was examined by female jail  doctor on  

29.05.2012, 01.06.2012 and 02.06.2012.  It is further pointed  

out that  even in the bail  application filed before the High  

Court, no such grievance has been made with regard to the  

alleged offence of rape while she was in custody.  Finally, it is  

pointed out  by the  State  that  when the  statement  of the  

appellant was sought to be recorded on 14.07.2012, she did  

not respond and again when she was called on 16.07.2012  

and a reminder was sent, she was not present at her house  

on 17.07.2012 and even after  further  efforts, she was not  

available.  By pointing out all these instances, it is projected  

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by the State that if the appellant has any grievance that her  

complaint has not been registered as an FIR, the Code of  

Criminal Procedure, 1973 (in short ‘the Code’) provides that  

an  application  could  be  made  to  the  Magistrate  having  

jurisdiction who may proceed after making an inquiry or after  

getting further materials.  In view of the same, it is pointed  

out that the High Court was fully justified in dismissing the  

petition filed under Section 226 and directing the appellant  

to  avail  the  remedy  provided  under  the  Code  before  the  

court of Magistrate.

8) It is clear that if it is a case of rape at the hands of the  

police  officials  that  too  in  the  custody,  undoubtedly,  the  

persons  concerned  are  answerable  for  not  registering  her  

written complaint.  We have already referred to the earlier  

complaint by some of the parties relating to the land dispute  

which resulted in the FIR being CR No. 5/2012 for which the  

appellant and her father were arrested.  We also noted that  

when the appellant  had various opportunities of disclosing  

her grievance including the alleged offence of rape to various  

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persons, viz., her mother, female medical officers and judicial  

Magistrate, admittedly, such remedy was not availed by her.

9) It is the assertion of the senior counsel for the appellant  

that when the information regarding a cognizable offence is  

laid  before  the  officer  in-charge  of  a  police  station  under  

Section 154 of the Code, he is bound to register it as an FIR  

without any inquiry and he has no discretion to even consider  

whether the allegations made are  prima facie borne out or  

not. In order to answer this question, we have to examine the  

background of the case which we have already adverted to  

including the FIR being CR No. 5/2012 relating to the land  

dispute  and  we  have  also  pointed  out  that  when  the  

appellant had various opportunities to disclose the alleged  

offence  of  rape  or  misdeeds,  it  has  not  been  disclosed  

throughout the period neither to her mother when she was  

taken to her home twice during the period of remand nor to  

the female doctors of the Civil  Hospital  who examined her  

nor to the doctors of the Jail authorities.  We have also noted  

that  even at  the time of production before the Magistrate  

after  the  completion  of  the  period  of  remand  and  

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subsequently,  when  she  was  remanded  to  the  judicial  

custody, nothing had been disclosed about any such misdeed  

or ill-treatment or harassment.

10) An elaborate discussion had been made with regard to  

Section 154 of the Code in State of Haryana and Ors. vs.  

Bhajan Lal and Ors., 1992 Supp (1) SCC 335. It  is seen  

from the  discussion  that  the  police  officer  in  charge  of  a  

police  station  is  obliged  to  register  a  case  and  then  to  

proceed with the investigation subject  to the provisions of  

Sections 156 and 157 of the Code.  It is further seen that if  

the  police  officer  in-charge  of  a  police  station  refuses  to  

exercise the jurisdiction vested in him and register the case  

on  information  of  cognizable  offence  and  violates  the  

statutory  right,  the  person  aggrieved,  can  send  the  

substance of the same to the higher authority, who, in turn, if  

satisfied that the information forwarded to him discloses a  

cognizable offence, can investigate the case himself or direct  

the investigation to be made by a subordinate officer.  The  

elaborate discussion clearly shows that before registration of  

the FIR, an officer should be satisfied. In other words, if the  

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facts are such which require some inquiry for the satisfaction  

about the charges or allegations made in the FIR or he may  

have entertained a reasonable belief or doubt, then he may  

make  some  inquiry.   To  put  it  clear,  by  virtue  of  the  

expression  “reason  to  suspect  the  commission  of  an  

offence”, we are of the view that commission of cognizable  

offence, based on the facts mentioned has to be considered  

with  the  attending  circumstances,  if  available.   In  other  

words, if there is a background/materials or information, it is  

the duty of the officer to take note of the same and proceed  

according to law.  It is further made clear that if the facts are  

such which require some inquiry for the satisfaction about  

the  charges  or  allegations  made  in  the  FIR  then  such  a  

limited inquiry is permissible.   

11) With regard to the direction for investigation by the CBI,  

a Constitution Bench of this Court in State of West Bengal  

and Ors. vs.  Committee for Protection of Democratic  

Rights, West Bengal and Ors., (2010) 3 SCC 571 clarified  

that despite wide powers conferred by Articles 32 and 226 of  

the Constitution, the Courts must bear in mind certain self-

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imposed  limitations  on  the  exercise  of  such  constitutional  

powers.  Insofar as the question of issuing a direction to CBI  

to  conduct  an  investigation,  the  Constitution  Bench  has  

observed that “although no inflexible guidelines can be laid  

down  to  decide  whether  or  not  such  power  should  be  

exercised but time and again it has been reiterated that such  

an order is not to be passed as a matter of routine or merely  

because a  party has leveled some allegations against  the  

local  police.   This  extraordinary  power  must  be  exercised  

sparingly, cautiously and in exceptional situations where it  

becomes  necessary  to  provide  credibility  and  instill  

confidence in investigations or where the incident may have  

national  and  international  ramifications  or  where  such  an  

order  may  be  necessary  for  doing  complete  justice  and  

enforcing the fundamental rights.  Otherwise, the CBI would  

be flooded with a large number of cases and with limited  

resources, may find it difficult to properly investigate even  

serious  cases  and  in  the  process  lose  its  credibility  and  

purpose with unsatisfactory investigations.”

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12) Having  regard  to  the  Scheme  of  the  Code,  various  

provisions as to the course to be adopted and in the light of  

the peculiar/special facts and circumstances which we have  

already noted in the earlier paras, we are satisfied that the  

High Court  was fully justified in  directing the appellant  to  

avail the recourse to the remedy as provided in the Code by  

filing  a  complaint  before  the  Magistrate.   We  are  also  

satisfied that the High Court, in order to safeguard the stand  

of  the  appellant,  issued  certain  directions  to  remedy  her  

grievance against  the  persons concerned.  We confirm the  

decision of the High Court in the light of the facts relating to  

the background of the case, particularly, the land dispute,  

the complaint regarding the same and various subsequent  

circumstances including her silence about the non-disclosure  

of the alleged rape before her mother on two occasions and  

before  the  female  doctors  at  Civil  Hospital  as  well  as  

Sabarmati Jail and also before the Magistrate.  It is further  

made  clear  that  while  affirming  the  decision  of  the  High  

Court, it cannot be presumed that we are underestimating  

the  grievance  of  the  appellant  herein  and  it  is  for  the  

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Magistrate  concerned  to  proceed  in  accordance  with  the  

provisions  of  the  Code  and  arrive  at  an  appropriate  

conclusion.

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

...…………….…………………………J.               (P. SATHASIVAM)                                  

 .…....…………………………………J.        (M.Y.EQBAL)                               

NEW DELHI; JULY 1, 2013.  

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