Right or wrong, register FIR when cognizable offence is brought to notice: Bombay High Court to Police

The Bombay High Court on Thursday said that it is the duty of the police to register an FIR when a cognizable offence that has been committed is brought to its notice. .Subsequently, if there is no evidence appropriate closure report can be filed, the Bench of Justices Revati Mohite Dere and Sharmila Deshmukh said."Right or wrong, once it is brought to notice that a cognizable offence is committed it is the duty to register FIR. Thereafter, if there is no evidence then appropriate report can be filed," the bench remarked.The remarks came in a petition that challenged the amended circular issued by Commissioner of Mumbai Police which stipulated seeking approval of the Deputy Commissioner of Police (DCP) before registering FIRs under the Protection of Children from Sexual Offences (POCSO) Act and in cases of outraging modesty of women. Advocate Arjun Kadam for the petitioner, informed the Court that the circular under challenge had been withdrawn on July 12 by the new Commissioner of Mumbai Police. Kadam, however, stated that the motive to challenge the circular was that a police station had refused to register an offence for aggravated sexual assault against his client and her child. Since police refused to register any FIR, the victim had been constrained to approach the Special POCSO Court in Mumbai seeking registration of FIR under Section 156(3) of the Code of Criminal Procedure. He pointed out that the special judge had been deferring his decision in view of the circular. While the Court clarified that it would not direct the Magistrate to pass any order, the Bench urged police officers to do their duty and register offences when it is brought to their notice that a cognizable offence is committed. The Bench, however, passed an order directing the Special judge to decide the application before the POCSO court expeditiously. Meanwhile since the main cause of concern in the public interest litigation no longer survived, the High Court disposed of the PIL..The first circular was issued on June 6 by the former Commissioner Sanjay Pandey, which was subsequently amended on June 17, clarifying that in the event the case seemed prima facie genuine, the police could register FIRs without prior approval. But if cases did not seem genuine, then prior approval as per the previous circular was mandatory.Some of the grounds raised seeking quashing of the PIL were as follows:Information likely to be false was no ground for not registering the offence;Police had enough powers and discretion to defer or not arrest in cases where the allegations levelled in the FIR are believed to be false.Section 21 of the POCSO Act makes the failure to register an offence under the Act a punishable offence.As such, the compulsion imposed by the legislative mandate has been side lined by the Commissioner and has instead vested absolute discretion with the ACP and then the DCP who would decide whether the offence should be registered or not.The circular is arbitrary, perverse and contemptuous to the law laid down by the Supreme Court and High Court, and is also unconstitutional to the provisions of the POCSO Act, 2012.