In the present case, both SHO and concerned SP did not perform their official duties provided under the law. In no case police has the authority to refuse to register the FIR. In number of cases the apex court has laid down that compliance with section 154 is mandatory and the police officer is bound to register the case on receiving the information when a cognizable offence is disclosed.
In Ramesh Kumari v. State, AIR 2006, SC 1322, the apex court has clearly laid down that genuineness or credibility of the information is not a condition precedent for registration of a case and that can be only considered after the case is registered by the police. Even at the stage of registration of a crime the police officer concerned can not embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or other wise to refuse to register the case on the ground that the information is credible or reliable. On plain reading of the section 154 (1), it can be noted that the legislature has in its collective wisdom cautiously used the expression “information” with out qualifying the same in some other section wherein the expression “reasonable complaint” and “credible information is need”.
There was no requirement for waiting for a forensic report for registering FIR under section 302, 376 RPC when the relatives of the two women were insisting. The photograph that newspapers published of the Asiya is very clear that it would be a case of murder. The police have the power to change the nature of the offence if the report of the forensic experts would have been otherwise. What prompted them to do so is a question which will come out only when a through enquiry is done in this case.
Officials who handled this case in an improper way and the doctors who conducted the post-mortem in a manner which was prejudicial to the law can be even prosecuted under section 218 RPC, where in they can be punished with an imprisonment which may extend up to three years and with fine or both.
There is a serious enquiry required to investigate the extraneous considerations that compelled the system to refuse the registration of FIR. It has made police a law into itself and compromised constitutional guarantee of rule of law. The sooner this process is completed the better it will be.
(Dr Qadri is former dean and head department of law, University of Kashmir)