KEYWORDS:- FIR – criminal investigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed.- DAILY DIARY
Lex nil Frustra jubet – LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. commands nothing vainly. As we have discussed above, it is settled rule of construction that every expression of word appearing in the Section should be given its meaning as legislature uses no word without purpose .
- Recording of the FIR is not the condition precedent to set a criminal investigation in motion but it’ s recording is considered to be useful if recorded within timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) and without undue delay.
- registration of FIR in exceptional and rare cases by the officer in charge of a police station, he may penultimately thus enter upon a preliminary inquiry in relation to information supplied of commission of a cognizable offence but only and only upon making due entry in the Daily Diary/Station Diary/ Roznamachar instantaneously with reasons as well as the need for adopting such a course of action.
DATE :- 8 October, 2008
CORAM : SWATANTER KUMAR, C.J. AND S.J. VAZIFDAR & A.A. SAYED, JJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTIONJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case.
CRIMINAL MISC. APPLICATION NO. 271 OF 2007
IN
WRIT PETITION NO. 982 OF 2007
JUDGMENTJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)
(Per Swatanter Kumar, C.J.
Introduction Marcus Tullius Cicero, a great orator and Roman Attorney said, “The solidity of a State is very largely bound up with its judicial decisions”. The stability of State governance is relatable to the status of public law and order in the State. Protection to person and property of State subjects is the primary obligation of the State and this is the great significance of administration of criminal justice delivery system.
Criminal jurisprudenceJurisprudence It is a branch of philosophy, that discusses the legality of Law. Oppenheimer v Cattermole (1976), the court considered the question of whether a Nazi law was so iniquitous that it should refuse to recognise it as a law, thus raising the connection between the concepts of law and morality. governing the law of crimeCrime A positive or negative act in violation of penal law; an offense against the state classified either as a felony or misdemeanor. primarily has two concepts like any other legal jurisprudence :
(i) Substantive criminal law; and
(ii) Procedural criminal law.
Provisions of substantive criminal law which are primarily penal in nature are subjected to rule of strict interpretation, while those relating to procedural law are guided by rules of plain and liberal interpretation. The Court, in the present cases, is concerned with the application of rules of interpretation to the procedural law particularly relating to the field of investigation as well as the effect of crime and its registration upon the social fabric of the State. Needless to notice that registration of First Information Report, inquiry, investigation and adjudication process of offences are the main attributes of administration of criminal justice delivery system.
2. The law relating to criminal procedure applicable to all criminal proceedings in IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more except the State of Jammu & Kashmir and Nagaland is specified in the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) which was amended from time to time and extensive amendments were introduced by the Amending Act of 1995. The object of the Code is to ensure that an accused gets a full and fair trial along with certain well established and well understood lines that accord with our notions of natural justice and there is completely expeditious but fair investigation. The basic importance of criminal procedure has to be kept in mind as it is the procedure that spells out much of the difference between the rule of law and rule by whim and caprice. The criminal procedure is supplemental to the substantive criminal law. Its failure would seriously affect the substantive criminal law which in turn would considerably affect the protection that it gives to the society.
Therefore, it has been rightly said that too much investigating delay and uncertainty in applying the law of criminal procedure would render the best penal law useless and oppressive.
3. Every criminal trial is initiated by registration of “First Information Report” (for short “FIR”). This puts the mechanism of criminal investigation into motion and is the first step for commencement of legal process in accordance with law. It is expressed that to keep the weal balanced must be the prime duty of the judiciary. In interpreting and applying a penal statute, it has to be borne in mind that respect for human rights of the accused is not the only value at stake. The purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property.
And it is in the interest of every one that serious crime should be effectively investigated and prosecuted. There must be fairness on all sides. In criminal cases, this requires the Court to consider triangulation of interest i.e. the accused, the victim – his or her family and the public. Besides all this, the paramount duty and the very foundation of criminal investigation and justice delivery system is fairness in the entire process and to ensure that there is no denial of justice to any of the stated parties. Importantly, it is the fairness during investigation or trial that achieve the ends of criminal justice.
Particularly, the procedural law thus needs to be examined and interpreted with the object of ensuring fairness even in the process of investigation. Whatever be the standards of legal conscience but they ultimately should be founded on law. Conscientia legalise lege foundatur.
4. Academicians even in the international field have emphasized the need to understand the portion of the impact that crime exerts on a society. Our approach primarily should be focused exclusively in economic and social consequences of crime. Very little is stated to have been done in trying to assess other type of consequences. Even the social structure of a community may be challenged wherever the incidents of crime are high. True it is that crime itself is a consequence of social degradation which necessarily implies that even a smallest act in the process of investigation or trial of criminal offences can leave an impact of wide magnitude not only on the social fabric but even on the criminal justice delivery system.
(Ref.: Unweaving the Social Fabric – http://repositories.cdlib.org/ vsmex/ prajm/paras.) Order of Reference
5. The reasons in support of the judgment is the soulSoul Abraham, having wept a short time over his wife’s body, soon rose up from the corpse; thinking, as it should seem, that to mourn any longer would be inconsistent with that wisdom by which he had been taught that he was not to look upon death as the extinction of the soul, but rather as a separation and disjunction of it from the body, returning back to the region from whence it came; and it came, from God. (Philo) न जायते म्रियते वा कदाचिन्-नायं भूत्वा भविता वा न भूयः-अजो नित्यः शाश्वतोयं पुराणो-न हन्यते हन्यमाने शरीरे (Gita 2.20 ) of judicial decision. The Division Bench of this court, while dealing with the Writ Petition No.982 of 2007 (Sandeep Rammilan Shukla v. The State of Maharashtra & Ors.), noticed that the view taken by the Division Bench of this Court in the case of Shyamsunder R. Agarwal v.
State of Maharashtra & Ors., 2008 ALL MR (Cri) 114, was not in conformity with the “ratio decidendi” of the judgment of the Supreme Court in Parkash Singh Badal & Anr. v. State of Punjab & Ors., (2007)1 SCC 1, and thus being unable to accept the view of the Division Bench in that case, recommended to constitute a Larger Bench to consider the question as to whether the officer in charge of a Police Station has to register an FIR as required under Section 154(1) of the Code of Criminal Procedure or he has any authority to conduct a preliminary inquiry pre-registration. It will be useful to refer to the Order of Reference dated 2nd May, 2008, which reads as under: –
“P.C.:-
The question raised in these petitions is whether the police officer is bound to register a case when an information is given to him about commission of cognisable offence. There are various judgments of the Supreme Court, the latest being Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [2007(1) SCC(1). There are other judgments which have been noted by the Supreme Court in this judgment.
There are other judgments of other High Courts, which have also been brought to our notice. We prima-facie feel that the view of the Supreme Court is that in terms of Section 154(1) Cr.P. C., the police officer is bound to register a case when he receives information of a cognizable offence. At the stage of receiving the information of cognizable offence, the police officer is not supposed to inquire about the correctness or otherwise of such information. That stage would only come after the case is registered. However, there is judgment of Division Bench of this Court in Writ Petition No.2297 of 2006. In this judgment this question was considered directly and the Division Bench while drawing conclusions after an elaborate discussion laid down as under:-
(a) Where an information relating to the commission of a cognizable offence is received by an officer in charge of a police station, he has to register a FIR as required by section 154(1) of the Code. If the information discloses a cognizable offence, FIR must be registered.
(b) If the information received does not disclose a cognizable offence but indicates the necessity for further inquiry, preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not.
While drawing conclusion at sub-paragraph (a) and
(b) of paragraph 57 in the light of the judgment of the Supreme Court referred to above, we feel that it would be appropriate if the matter is re-considered by a Full Bench of this High Court. Therefore, we refer to the Full Bench the question whether in the light of the judgment of the Supreme Court a police officer is bound to register a case when an information is given to him with regard to commission of a cognizable offence, irrespective of any qualifications, as created in paragraph 57(b) of the judgment of this court in the case of Shayamsunder R. Agarwal vs. State of Maharashtra in Writ Petition No. 2297 of 206 dated 9th March, 2007. Papers be placed before the learned Chief Justice for appropriate orders.
Sd/-
(Bilal Nazki, J)
ig Sd/-
A.P. Bhangale, J)”
6. In furtherance to this Order of Reference, the matters have been placed before this Bench for answering the referred question of law.
Facts of the case
7. It will be useful to refer to the basic facts giving rise to the Order of Reference in Writ Petition No.982 of 2007. The Petitioners have prayed that the investigations of C.R. No.144 of 2007 of Nagpada Police Station, Mumbai, and C.R. No.24 of 2007 be transferred to the Director of Central Bureau of Investigation. The Petitioner claims that he was in the process of developing a Slum Rehabilitation Scheme under the Development Control Regulations 33(10) and during this process, he was approached by one Shri Vinod Avlani, through one mediator Shri Chandresh Shah and showed his interest for taking over the project of slum rehabilitation on behalf of Ravi Group of Companies. The parties accordingly negotiated and a draft agreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. was drawn. A joint venture agreement was thus arrived at, whereby the Petitioner’s firm would have a joint venture agreement with Ravi Group of Companies represented by Shri Vinod Avlani, who was to pay to the Petitioner a sum of Rs.2 crores, out of which Rs.1 crore was to be paid at the time of signing of the agreement. In the month of October, 2006, the Petitioner was given an advance of Rs.30 lakhs and the balance of Rs.70 lakhs was to be given just before the signing of the said agreement. The amount of Rs.30 lakhs was accepted as an earnest money by the Petitioner.
Shri Avlani did not act in accordance with the understanding between the parties and they started misguiding and provoking the members of the Slum Society whose co-operation was critical for the success of the project. The sum of Rs.70 lakhs was not given to the petitioner and Shri Avlani wanted to go back on his promise and with an intention to get back the earnest money, he lodged a complaint with the Crime Branch Unit for recovery of the said earnest money which the Petitioner had forfeited for the reason of detrimental behaviour of Shri Chandresh Shah and of Shri Avlani over the said slum rehabilitation project. The Crime Branch Unit, according to the Petitioner, did not register an FIR. However, in doing so, the Police Inspector Shri Anil Mahabole and Sub-Inspector Shri Rajaram Nikam started threatening the Petitioner and his uncle that they should pay Rs.10 lakhs as bribe to them and also they should return the said sum of Rs.30 lakhs, which was forfeited by the petitioner, to the complainant. The Petitioner and his uncle were continuously harassed and the Petitioner, therefore, made a complaint to the Maharashtra State Anti Corruption Bureau which was lodged as an FIR in the matter. The Anti Corruption Bureau intensively verified the complaint and made phone tapping recording several telephone conversations. It was also stated in the complaint that Chandresh Shah had purchased two expensive Nokia N-Series mobile phones by swapping his credit card and one of which was given to PI Mahabole and another to the Deputy Commissioner of Police Shri Kamlakar.
Shri Chandresh Shah was trapped red-handed by the Anti Corruption Bureau while accepting the bribe of Rs. 1.5 lakhs and was arrested and the mobile phones were seized. The ACB did not seize mobile phone of DCP Shri Kamalakar. In order to get out the ACB, the anti-
extortion cellCell The smallest unit that can live on its own and that makes up all living organisms and the tissues of the body. A cell has three main parts: the cell membrane, the nucleus, and the cytoplasm. The cell membrane surrounds the cell and controls the substances that go into and out of the cell. The nucleus is a structure inside the cell that contains the nucleolus and most of the cell’s DNA. It is also where most RNA is made. The cytoplasm is the fluid inside the cell. It contains other tiny cell parts that have specific functions, including the Golgi complex, the mitochondria, and the endoplasmic reticulum. The cytoplasm is where most chemical reactions take place and where most proteins are made. The human body has more than 30 trillion cells. of crime branch registered counter FIR aginst Petitioner and his uncle alleging a case of extortion.
8. According to the Petitioners, no case was made out against them as they had not done any extortion and in fact had retained the earnest money. Krishnamilan, who had taken bold steps for exposing the officers of Crime Branch, after his bail application was rejected was arrested along with the Petitioner and taken to judicial custody. As he was arrested on the basis of FIR registered by the two officers against whom the complaint was made by the uncle of the Petitioner in the matter, he was being investigated by the Crime Branch. According to the Petitioner, no case was made out against the uncle of the Petitioner and the Petitioner as they had never demanded any extortion money from the complainant, however, they had only retained the earnest money. It is the contention of the Petitioner that FIR was registered after four months whereas it should have been registered at once. Thus, according to them, the FIR itself could not have been registered and in any case the investigation of both the cases i.e. one with the Crime Branch and another with the Police Station of Nagpada, Mumbai, should be investigated by the Central Bureau of Investigation.
9. While in Writ Petition No.2031 of 2007 filed by the Petitioner, Smt. Vimal Appaso Lohar, it is averred that on 20th January, 2006 her husband Appaso Dattu Lohar was arrested upon registration of an F.I. R. being Criminal Case No.3 of 2006 dated 20th January, 2006 on the allegation that he committed theft of Hercules Bicycle and the offence was registered under Section 379 of the Indian Penal Code. After his arrest, he was taken to Kurundwad Police Station and thereafter was produced before the J.M. F.C.
Kurundwad on 21st January, 2006 who granted police custody remand of three days. Unfortunately on 23rd January, 2006, Appaso Lohar died in police lock-up due to torture. This was not informed to the Petitioner and it was after the news flashed in the TV Channels and the newspapers of Kolhapur District, that the Petitioner, wife of the Appaso Lohar, came to know about the death of her husband. She being uneducated and poor woman could not take effective steps.
Thereafter, even certain people raised voice against this act of the police. No FIR was registered regarding custodial death of her husband. Even the dead body of her husband was not handed over to her for funeral. Petitioner stated that her husband was the only bread winner of their family. An inquiry was sought to be conducted and she was served a notice informing her that she should remain present on 24th February, 2006 for the purpose of inquiry of the said custodial death, but the same has not been taken to its logical conclusion and even an FIR for the custodial death has not been registered. Thus, the Petitioner prays that an appropriate case be registered and investigation thereof be handed over to the CBI and the Respondents be also directed to pay reasonable compensation.
The Law : Relevant provisions of Criminal Procedure Code
10. In Laxminarayan Vishwanath Arya vs State of Mahrashtra and others, 2007 (5) Mh. L. J. 7, Full Bench of this Court observed that legislative scheme behind the Code of Criminal Procedure, 1973 discerningly deciphers distinction of jurisdiction and fields covered by the police or investigating agency on the one hand and the powers of the Court while conducting inquiry or trial. The legislative object of distribution of power without transgression on the limitation of the other has received judicial approval. With the development of law, under the criminal jurisprudence, there is clear judicial dichotomy of investigative and judicial power. They operate in different fields without conflict and scope of overlapping unless the provisions of Code or judicial dictum have provided to the contrary. The emphasis of the Full Bench in the case of Laxminarayan (supra) had been on Chapter XII and Chapter XIII to XV which obviously includes even Section 154 of the Code.
11. It will be useful to refer to the provisions of Section 154, with the interpretation of which we are concerned in the present Reference. Section 154 reads as under :-
“154. Information in cognizable cases – (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.”
12. It is a settled rule of interpretation of statute that the Courts should always tilt in favour of rule of plain construction unless the legislative intent/object and language unambiguously support another construction. On the plain reading of Section 154, following ingredients emerge :-
(a) Every information relating to commission of a cognizable offence shall be reduced to writing by the police officer or under his direction and read over to the informant.
(b) Such information can be given in writing or reduced to writing by the officer concerned and also shall be signed by the informant.
(c) The substance whereof shall be entered in a book to be kept by such officer as the State Government may prescribe in this behalf.
(d) The scheme of registration of FIR under Section 154 further requires in terms of Section 154(2) the copy of information so recorded shall be given forthwith free of cost to the informant.
(e) Section 154 (3) provides a remedy to an aggrieved person in case of refusal on the part of the officer in charge of the police station to record the information by making a complaint to the Superintendent of Police, who if satisfied by such information, having disclosed a commission of cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.
Thus, the provisions of Section 154 are self contained. They impose a duty upon the police officer in charge of a police station to register information of commission of a cognizable offence and supply the copy thereof to the complainant. In the event of default, the remedy is also stipulated. From the essential features of Section 154(1), it is apparent that a police officer has to register information relating to a commission of a cognizable offence.
13. Section 2(c) defines “cognizable offence”. It means an offence for which, and “cognizable case” means a case in which a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
14. The expression “investigation” has to be clearly understood in distinction to “inquiry”. They are defined under Sections 2(h) and 2(g) respectively. All proceedings under the Code for collection of evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 conducted by a police officer is an investigation, while inquiry means every inquiry other than a trial conducted under the Code by a Magistrate or Court. Thus, inquiry falls in the domain of Court, while investigation and all its facets exclusively come under the domain of the investigating agency. It is also apparent that expression “inquiry” per se has not been defined, but it only shows what it includes or embraces. The term “inquiry”
has been given a wide import.
15. The Supreme Court in the case of Real Value Appliances Limited vs Canara Bank and others, (1998) 5 SCC 554, explained the term “inquiry’ as :
“According to the New Standard Dictionary, the word “inquiry” includes “investigation” into facts, causes, effects and relations generally; “to inquire”, according to the same dictionary means “to exert oneself to discovery something”. Chambers 20th Century Dictionary lays down that the meaning of the term “to inquire” is “to ask, to seek” and the meaning of the term “inquiry” is given as “search for knowledge; investigation; a question.”
16. In contrast to this, the Supreme Court; in the case of Directorate of Enforcement vs Deepak Mahajan and another, AIR 1994 SC 1775, explained the word “investigation” as under :-
“An `investigation’ means search for material and facts in order to find out whether or not an offence has been committed. The expression `investigation’ has been defined in Section 2(h) of Criminal Procedure Code. It is an inclusive definition. No doubt it will not strictly fall under the definition of `investigation’ in so far as the inclusive part is concerned. But then it being an inclusive definition the ordinary connotation of the expression `investigation’ cannot be overlooked.”
17. The investigation of a cognizable offence in contra-
distinction to a non-cognizable offence is without the leave of the Court. The book in which such information is to be recorded is the one which has been prescribed by the Government for that purpose.
In terms of Section 2(m), “Notification” means the one published in the Official Gazette and “offence” under Section 2(n) means any act or omission made punishable by law. FIR is to be recorded by an officer in charge of a police station which in terms of section 2(o) includes, “when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present”.
18. The powers of the investigating officer are of very wide magnitude. Once an FIR has been registered in terms of Section 154 of the Code, the police officer without an order from the Magistrate and without a warrant may arrest a person who has been concerned in any cognizable offence and for various other reasons stated in Section 41. Section 157 of the Code also lays down that if from the information received by an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigation, he shall send forthwith a report of the same to the Magistrate empowered to take cognizance of such an offence and shall proceed to investigate himself or through his subordinate officer and to take measures for discovery and arrest of the offender. Proviso (b) to Section 157(1) authorizes a police officer in charge of a police station that if there is no sufficient grounds for entering into an investigation, he shall not investigate the case. Thus, this provision gives some element of discretion to a police officer to investigate or not depending upon reasons to suspect commission or no sufficient ground for entering into investigation of an alleged offence. In other case, he is expected to proceed to file a report before the Court of competent jurisdiction as per the requirements of Section 173(2) of the Code. The Supreme Court in the case of Union of India and another vs W. N. Chadha, AIR 1993 SC 1082, dealing with the various terms appearing in Section 173(1), held as under :-
“89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under S. 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partemAudi alteram partem Asst. Commissioner Commercial Tax v. M/s Shukla and brothers (2010) 4 SCC 785:
“9. The increasing institution of cases in all Courts in India and its resultant burden upon the Courts has invited attention of all concerned in the justice administration system. Despite heavy quantum of cases in Courts, in our view, it would neither be permissible nor possible to state as a principle of law, that while exercising power of judicial review on administrative action and more particularly judgment of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order. This has been uniformly applied by courts in India and abroad.” superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but where the occasion for its attraction exists at all.
90. Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
91. In State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335 at 359 : (AIR 1992 SC 604 AT p. 616), this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v Khwaja Naziar Ahmad, AIR 1947 PC 18 and the decision of this Court in State of Bihar v J.A. C. Saldanha, 1967 (3) SCR 668 has pointed out that “…the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation ……”
170. It may not be out of place to state, in this context, that there are certain provisions in the Criminal Procedure Code which authorise a police officer to register a case and investigate the matter if there is any reason to suspect the commission of an offence or reasonable suspicion of commission of any offence. Section 157(1) requires an officer in charge of a police station who `from information received or otherwise’ has reason to suspect the commission of an offence –
that is a cognizable offence, he can investigate the matter under S. 156. The expression “reason to suspect” as occurring in S. 157(1) is not qualified as in S. 41(a) and (g) of the Code, wherein the expression “reasonable suspicion” is used. Therefore, what S. 157(1) requires is that the police officer should have `reason to suspect’ with regard to the commission of an offence. See Bhajan Lal (AIR 1992 SC 604).”
19. The legislative scheme that is demonstrated under different provisions of the Code is to ensure fair, transparent and expeditious investigation and control in relation to crime. It has been more than often said that by inquiry, investigation or trial before the Court all concerned are expected to provide expeditious conclusion of such proceedings. The provisions of Section 129 of the Code and in fact the entire Chapter X provides of maintenance of law and order by the State and its agencies. The entire emphasis is on maintaining social harmony and provide due protection to the person and property and ensure protection of liberty contemplated under Article 21 of the Constitution of India.
20. Besides the applicability of the concept of proper law and order and fair investigation, the scheme of the Code of Criminal Procedure imposes duties and obligations upon the Investigating Officer as well as the Courts while vesting them with element of discretion and wide powers of investigation. In terms of Section 156, the Investigating Officer has a right to investigate cognizable offence without intervention and/or order of the Court and his investigations on technical default are even protected as per the provisions of Section 156(2) of the Code. Liberty and right to life of an individual is required to be protected as guaranteed under Article 21 of the Constitution of India and this takes in its sweep not only the interest of society at large but the rights available to a victim and an accused as well.
Basic Principles of Interpretation
21. The principle of interpretation of statute more particularly in a criminal case would depend on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant difference may alter the entire aspect. In the case of Parasa Raja Manikyala Rao. v. State of A.P., AIR 2004 SC 132, the Supreme Court said:
“….. In deciding such cases, one should avoid the temptation to decide cases ( as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”
22. It is well settled principle and has been reiterated from time to time that the intention of the Legislature must be found by reading the Statute as a whole. Every clause of Statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole Statute. As already noticed, penal statute is liable of strict construction and the procedural law, would be interpreted on plain reading and it may not be even necessary to refer to dictionary meaning to find out the general sense in which that word is understood in common parlance. It will be more so when a plain reading of the provision brings out what was intended. Statement of Object and Reasons is permissible for understanding the background, the antecedent of state of affairs to know what the Legislature intended and what the law sought to be remedied.
However, the doctrine of “Contemporanea exposit to est optima et fortissimm” is hardly of any help in interpreting a provision of an on-
going statute like the Criminal Procedure Code. (See: Ratanlal & Dhirajlal on the Code of Criminal Procedure, Wadhwa Publication, Nagpur.)
23. “When the meaning of the word is plain, it is not the duty of the Courts to busy themselves with supposed intentions,” said Lord Atkin speaking for the Privy Council. It may not be necessary to dwell on the advantage or disadvantage of applying the plain meaning but in certain situations, the purpose of the law, what it intended to avoid would certainly be a relevant consideration. The rule of hardship may not be of a great relevance either way when the language of the law is unambiguous and certain. This has to be normally examined in the light of the fact that to conduct a fair investigation as well as to prove the charges is ever burdened on the prosecution and the burden does not shift upon the accused under the Criminal Jurisprudence. In Raghunath Rai Bareja vs Punjab National Bank, (2007) 2 SCC 230, the Supreme Court stated that the departure from the literal rule should be done only in very rare cases and ordinarily there should be judicial restraint in this connection.
The Supreme Court further said that to adhere as closely as possible to the literal meaning of the words used, is a cardinal rule. Even where two rules for construction are possible, the aspect which could be examined under the purposive construction and mischief rule is that, what shall be the law before making of the Act, what was mischief or defect for which the law did not provide and what is the remedy which that the Act provides must be examined.
24. The distinction between the mandatory and directory provisions is a well accepted norm of interpretation. The general rule of interpretation would require the word to be given its own meaning and the word `shall’ would be read as “must” unless it was essential to read it as “may” to achieve the ends of legislative intent and understand the language of the provisions. It is difficult to lay down any universal rule but wherever the word `shall’ is used in a substantive statute it normally would indicate mandatory intent of the legislature. Crawford on Statutory Construction said as under:-
“The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.”
25. Thus the word `shall’ would normally be mandatory while the word `may’ would be directory. Consequences of non compliance would also be a relevant consideration. The word `shall’ raises a presumptionPresumption An inference of the truth or falsehood of a proposition or fact that stands until rebutted by evidence to the contrary. that the particular provision is imperative but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction. Where a statute imposes a public duty and lays down the manner in which and the time within which the duty shall be performed, injustice or inconvenience resulting from a rigid adherence to the statutory prescriptions may not be a relevant factor in holding such prescription only directory. Dealing with the provisions relating to criminal law, its purpose is to be borne in mind for its proper interpretation. It is said that the purpose of criminal law is to permit everyone to go about their daily lives without fear or harm to person or property and it is in the interest of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider triangulation of interests. It takes into consideration the position of the accused, the victim and his or her family, and the Reference (No.3 of 1999), (2001) 1 All ER public. [Attorney General’s 577, p.584 (HL.). Reference : Justice G.P. Singh on Principles of Statutory Interpretation, 11th Edition 2008).
26. The basic purpose of interpretation of statute is further to aid and apply in determining either the general object of the legislation, or the meaning of its language in any particular provision.
It is obvious that the intention which appears to be most in accordance with the convenience, reason, justice and legal principles should, in all cases of doubtful interpretation, be presumed to be the true one. The intention to produce an unreasonable result is not to be imputed to a statute. On the other hand, it is not impermissible but rather is acceptable to adopt more reasonable construction and avoid anomalous or unreasonable construction. A sense of the possible injustice of an interpretation ought not to induce judges to do violence to well settled rules of construction, but it may properly lead to the selection of one rather than the other of two reasonable interpretations. In former times the statute imposing criminal or other penalties were required to be construed narrowly in favour of the person proceeded against and were more rigorously applied. The Courts were to see whether there appeared any reasonable doubt or ambiguity in construing the relevant provisions. Right from the case of R. vs Jones, ex p. Daunton, 1963(1) WLR 270, the basic principles are stated that the statute dealing with the jurisdiction and the procedure are, if they relate to infliction of penalties strictly construed;
compliance with the procedure will be stringently exacted from those proceeding against the person liable to be penalized and if there is any ambiguity or doubt it will, as usual, be resolved in his favour.
These principles have been applied with approval by different courts even in India. Enactments relating to procedure in courts are usually construed as imperative. A kind of duty is imposed on court or a public officer when no general inconvenience or injustice is caused from different construction. A provision of statute may impose an absolute or qualified duty upon a public officer which itself may be a relevant consideration while understanding the provision itself. (See Maxwell on The Interpretation of Statutes, Twelfth Edition by P. St. J. Langan).
Reverting back to Criminal Procedure Code
27. In the light of above enunciated principles, now let us revert back to the language of Section 154 and the other provision which would have a bearing on its true construction. The provisions of Section 154 use a clear language and hardly leave any scope for doubt. The moment information relating to the commission of cognizable offence is given to the officer in charge of a Police Station, he “shall reduce the same in writing or cause it to be written under his direction and shall be signed by the person giving information and entered in such book which may be prescribed by the State Government in that behalf.” Thus, this provision casts an absolute obligation upon an officer in charge of a Police Station that wherever information about cognizable offence is brought to his notice, he shall follow the procedure prescribed under Section 154(1). In the event of default, Section 154(3) provides a remedy to the aggrieved party.
In other words, the Legislature did contemplate the possibility of a refusal to record information of a cognizable offence by officer in charge of a Police Station, and therefore, found a need of spelling out a remedy under Section 154(3).
28. A cognizable offence by its very definition would be a serious offence and in fact, an assault on the freedom and liberty of another individual as protected under the basic rule of law. A cognizable offence would be one where the Investigating Officer can arrest without warrant. Section 41 specifies when, without order from the Magistrate and without warrant, a person could be arrested who is concerned in any cognizable offence. Section 157 is another important provision, which throws some light on the matters in issue.
Section 157 of course is preceded by Sections 154 to 156 but its language does not indicate that the procedure of investigation indicated in it can be followed only after registration of a case.
29. In the case of Emperor vs Khwaja Nazir, AIR (32) 1945 Privy Council 18, it is held that receipt and recording of FIR is not a condition precedent to criminal investigation and police have statutory right under Section 154 to investigate. Section 157 requires that if from the information received which may even refer to Section 154 or otherwise, an officer in charge of a Police Station has reason to suspect commission of an offence which he is empowered under Section 156 to investigate after sending report to Magistrate would proceed to investigate personally or appoint his subordinate to investigate. Here the expression `reason to suspect the commission of an offence’ indicates arriving at some kind of satisfaction on the part of the Investigating Officer in regard to commission of an offence, which he is empowered to investigate in terms of Section 156 i.e. a cognizable offence. Proviso (b) to Section 157(1) further grants some kind of leverage to the Investigating Officer that he may not enter upon the investigation where there is `no sufficient ground for investigation’. Besides submitting the report, he is under obligation to notify the informant as well. The report is to be submitted in terms of Section 158 where the Magistrate can even direct investigation in terms of powers conferred upon the Magistrate under Section 159. This provision gives some element of discretion to the Investigating Officer, which he could exercise as per the prescribed procedure, in accordance with the law and to have fair play into the investigation. Abuse of this discretion can lead to a drastic consequences on the entire criminal law.
30. The opening words of Section 157 are also of some significance. The expression `If” used in “If’ from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate”, is considered it suggests that the power to investigate under Section 157 is dependent upon some satisfaction as indicated the word `if’. The expression `if’ has to be given some meaning and reference in the language of Section. This expression will have to be examined in light of the language of Section 154(1) of the Code.
31 In the scheme of the Code of Criminal Procedure, the provisions of Section 154 is a significant provision and has considerable impact on administration of criminal justice as well as have substantial effect on the society. The question, which requires serious consideration, is whether any kind of discretion is available to the officer in charge of a Police Station in terms of Section 154 or he is left with no choice whatever as per the circumstances of the case.
The advantages and disadvantages per se may not be a relevant consideration in interpretation of provisions of criminal law but this exemption in the light of object of the statute and provision and its purpose can be of definite help in such situation. Experience has shown and even it is not disputed at the bar during the course of arguments that the abuse of this power either way is not only possible but has actually been seen in practice. Fear of manipulation per se cannot be the basis for enactment of a law and for that matter its interpretation. The Court essentially must believe that all the things would be done fairly and as required under the law unless contrary is shown. Sometimes, cases relating to cognizable offence are registered even if they are patently false, absurd and the credibility and reliability of which is prima facie questionable. They are filed just to harass the party complained against at the behest of some influential persons. On the other hand, a genuine complainant who is the real victim of commission of a cognizable offence committed by another is neither attended to nor heard at various police stations and the officer in charge of a Police Station refuses to record any entry of such information, thus leading to consequences which result in not bringing the influential people to the command of law.
32. The word `shall’ appearing in Section 154 has to be given its plain and simple meaning as its plain interpretation is neither hit by any rule of great hardship, inconvenience or ambiguity. The expression `shall’ therefore is a mandatory provision and in no uncertain terms places an absolute duty upon the officer in charge of a Police Station to record information of a cognizable offence in the appropriate book/books. No doubt, the words `shall’ and `may’ are interchangeable but in the present case, mandatory interpretation of the word `shall’ can hardly be avoided. Corollary to the question that follows is whether this absolute duty arising from the word `shall’ specifically or by definite implication puts an absolute prohibition on the police officer in charge of a Police Station to do any other act ancillary thereto or otherwise under the Scheme of the Act.
33. The provisions of Section 154 are capable of being interpreted and given a meaning on its plain interpretation without harming either doctrine of fair investigation, avoiding adverse effect on the society and ensuring expeditious commencement and disposal of the trials without exposing the complainant to the possible disadvantage for non registration of his complaint. Once the matter falls within the realm of investigation, it is controlled by the Investigating Agency, normally, without interference of the Court.
The only condition precedent to put the machinery of investigation in motion is information of a cognizable offence and/or registration of offence alleged to have been committed which is cognizible. The investigation includes all proceedings under the Code for collection of evidence conducted by a police officer. There is no specific provision or legislative command where pre-investigative inquiry is either specifically permitted or prohibited. There appears to be nothing in the language of Section 154 of the Code, which debars recourse to pre-registration inquiry howsoever formal it might be, that necessarily may not mean that it specifically permit such an inquiry. This aspect of the matter, we shall revert back for a detail discussion after noticing the judgments on the subject.
34. Lex nil Frustra jubet – Law commands nothing vainly. As we have discussed above, it is settled rule of construction that every expression of word appearing in the Section should be given its meaning as legislature uses no word without purpose.
35. Section 154 is a provision which deals with the procedure to be adopted and the jurisdiction of a police officer in charge of a police station regarding investigation. The provisions of Section 154 are invocable only when the information is with regard to a cognizable offence. The section imposes an absolute duty but with the qualifications in relation to the commission of a cognizable offence.
Thus, would it not be required of an investigating officer to ascertain that the information relates to commission of a cognizable offence, as if the offence is non cognizable, the officer concerned has no jurisdiction to take any further steps in regard to the investigation without the leave of the Court in accordance with the provisions of Section 155(2) of the Act.
36. The consequences of registration of a cognizable offence are apparently of serious nature and they have the effect of one way or the other affecting the freedom of the suspect. It essentially should be presumed that the Legislature intended to suppress the mischief of abuse of power by the officer in charge of a Police Station in relation to the registration and/or non-registration of an FIR relating to a cognizable offence. The Court has to keep in mind that all the acts are expected to be done fairly and in accordance with the law. It may not be advisable for the Court to travel into the supposedly “if” and “if not” which are likely to arise from the abuse of power. No provision can be made which will apply to all situation. Each situation has to be dealt with as and when it arises and that too in accordance with the law. Section 154 itself requires that the information given and recorded is to be read over to the informant and then it has to be signed by that person giving it and substance thereof is to be entered in the relevant book. Thus, on receipt of information relating to commission of a cognizable offence, an entry of the substance of the information received should be reduced in writing and be entered into a book. These acts are to be done by the investigating officer with complete sense of responsibility and he should ensure that no delay occurs in registration of such information and should take necessary steps in accordance with the law. The provisions of the Code relevant in this regard uses the word `forthwith’ i.e. the police officer is to inform the Magistrate of the competent jurisdiction as well as the informant of his decision to conduct investigation and/or not to conduct an investigation `forthwith’ .
Object of FIR
37. The registration of information received in a prescribed book and in the form of a First Information Report is the foremost document which marks commencement of investigation of a criminal offence. In the offence relating to special statutes there could be a preliminary investigation while in other kinds of offences, the Investigating Officer may enter upon regular investigation upon the registration of a case. What stepes are to be taken in an investigation were precisely stated by the Supreme Court in the case of H.N.
Risbud vs State of Delhi, AIR 1955 SC 196 which decision has remained unaltered till date.
38. Another important facet of this discussion is, what is the object of recording the FIR. The principle object of the FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigation authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The FIR does not constitute the substantive evidence though its importance as conveying the earliest information regarding the occurence cannot be doubted. FIR can, however, be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Indian Evidence Act, or for contradicting him under Section 145 of that Act as held by the Supreme Court in the case of Shaikh Hasib alias Tabarak vs The State of Bihar, (1972) 4 SCC
773. Strictly speaking, recording of the FIR is not the condition precedent to set a criminal investigation in motion but it’ s recording is considered to be useful if recorded within time and without undue delay.
39. In the case of Ravi Kumar v. State of Punjab, (2005) 9 SCC 315, the Supreme Court said that the FIR is a report giving information of the commission of a cognizable crime which may be made by the complainant or by any other person knowing about the commission of such an offence. It is intended to set the criminal law in motion. It is not necessary to give each and every minute details of the incident in FIR. Its object is to obtain earliest information regarding the circumstances in which the crime was committed. This anyway puts some light on the purpose and significance of recording an information which an informant comes to give to the officer in charge of a Police Station in terms of Section 154 of the Code. If certain rights of the complainant are violated, it results in constituting a cognizable offence and thus makes it obligatory for the investigating agency to act in accordance with the law. Every cognizable offence essentially has certain ingredients. An information must disclose such ingredients.
Discussion on Precedents relied upon by the parties
40. It will be desirable to discuss the respective dicta of law stated with reference to facts and circumstances of the case in order to consider to what extent the judgments cited by the learned Counsel appearing for the respective parties would operate as relevant precedents for answering the legal controversy involved in the cases in hand. It is always advisable that in deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. Thus, we proceed now to refer to the judgments cited before us.
41. According to the learned Public Prosecutor appearing for the State, there are various judgments of the Supreme Court and of this Court as well which have taken the view that pre-inquiry to registration of the FIR is permissible though in exceptional cases and such an inquiry is not prohibited under the provisions of the Code.
The scheme of the Code keeps some element of discretion with the investigating officer which itself indicates the need for pre-verification of reliability and credibility of information and at least ensurement of the ingredients which would constitute a cognizable offence within the meaning of the Code. It is also argued that vesting of such power may be essential in the interest of proper regulation of criminal investigation which will also help in avoiding absurd result.
42. In the case of State of Uttar Pradesh vs Bhagwant Kishore Joshi, AIR 1964 SC 221, the Supreme Court was concerned with a question under Section 5A of the Prevention of Corruption Act, 1947 under which investigating officer not below the rank of the Deputy Superintendent of Police, who make an inquiry, should take action in furtherance thereto only with the previous permission of the Magistrate to put a statutory safe-guard. The Supreme Court in reference to the case where Bhagwant Joshi who was working as a Booking Clerk at Sharanpur was stated to have committed criminal breach of trust in respect of Rs.49/1/0-. The High Court had acquitted the accused on the ground that investigation made by the Sub-
Inspector, Mathura before he obtained the permission of the Additional District Magistrate vitiated the entire trial. Explaining the word “investigation” and setting aside the judgment of the High Court in reference to the scope of preliminary inquiry, Mudholkar, J. while concurring with the judgment authored by Subba Rao, J., for himself and Raghubar Dayal, J., held as under :-
“18. What is investigation is not defined in the Code of Criminal Procedure; but in (1955) 1 SCR 1150 : ((S) AIR 1955 SC 196) this Court has described the procedure for investigation as follows :
“Thus, under 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) search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. 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 the filing of a charge-sheet under S.
173.”
This Court, however, has not said that if a police officer takes merely one or two of the steps indicated by it, what he has done must necessarily be regarded as investigation. Investigation, in substance, means collection of evidence relating to the commission of the offence. The Investigating Officer is, for this purpose, entitled to question persons who, in his opinion, are able to throw light on the offence which has been committed and is likewise entitled to question the suspect and is entitled to reduce the statements of persons questioned by him to writing. He is also entitled to search the place of the offence and to search other places, with the object of seizing articles connected with the offence. No doubt, for this purpose he has to proceed to the spot where the offence was committed and do various other things. But the main object of investigation being to bring home the offence to the offender the essential part of the duties of an Investigating Officer in this connection is, apart from arresting the offender, to collect all material necessary for establishing the accusation against the offender.
Merely making some preliminary enquiries upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it. No doubt, S. 5A of the Prevention of Corruption Act was enacted for preventing harassment to a Government servant and with this object in view investigation, except with the previous permission of a Magistrate, is not permitted to be made by an officer below the rank of a Deputy Superintendent of Police. Where, however, a Police Officer makes some preliminary enquiries, does not arrest or even question an accused or question any witness but merely makes a few discreet enquiries or looks at some documents without making any notes, it is difficult to visualise how any possible harassment or even embarrassment would result therefrom to the suspect or the accused person. If no harassment to the accused results from the action of a Police Officer how can it be said to defeat the purpose underlying S. 5A ? Looking at the matter this way, I hold that what Mathur did was something very much short of investigation and, therefore, the provisions of S. 5A were not violated. Since no irregularity was committed by him there is no occasion to invoke the aid of the curative provisions of the Code.”
ig (Emphasis supplied)
21. …..”Even so the said police officer received a detailed information of the offences alleged to have been committed by the accused with necessary particulars, proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records and submitted a report of the said acts. The said acts constituted an investigation within the meaning of the definition of investigation under Section 4(1) of the Code of Criminal Procedure as explained by this Court. The decisions cited by the learned counsel for the State in support of his contention that there was no investigation in the present case are rather wide off the mark. In In re Nanumuri Annadayya a Division Bench of the Madras High Court held that an informal enquiry on the basis of a vague telegram was not an investigation within the meaning of Section 157 of the Code of Criminal Procedure. In In re Rangarujulu, Ramaswami, J. of the Madras High Court described the following three stages a policeman has to pass in a conspiracy case :
“…. hears something of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up informants and is in the second stage of qui vive or lookout; and finally gathers sufficient information enabling him to bite upon something definite and that is the stage when first information is recorded and when investigation starts.”
This graphic description of the stages is only a restatement of the principle that a vague information or an irresponsible rumour would not in itself constitute information within the meaning of Section 154 of the Code or the basis for an investigation under Section 157 thereof. In State of Kerala v M.J. Samuel a Full Bench of the Kerala High Court ruled that, it can be stated as a general principle that it is not every piece of information however vague, indefinite and unauthenticated it may be that should be recorded as the first information for the sole reason that such information was the first, in point of time, to be received by the police regarding the commission of an offence. The Full Bench also took care to make it clear that whether or not a statement would constitute the first information report in a case is a question of fact and would depend upon the circumstances of that case….”
43. In the case of P. Sirajuddin, etc. vs State of Madras, etc., 1970 (1) SCC 595, the Supreme Court while again dealing with a case relating to an offence under Sections 161 and 165 of the Indian Penal Code and Sections 5(1) (a) and (d) of the Prevention of Corruption Act in relation to the appellant who was stated to be Chief Engineer in the Highways and Rural Works, Madras observed that the provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case, however, serious a crime and however incriminating the circumstances may be against the person supposed to be guilty of a crime. The aim of the Code is to secure conviction if it can be had by use of utmost fairness on the part of the officer investigating into crime before lodging a charge sheet. The purpose is to avoid undue and unwarranted harassment.
The Court held as under :-
“19. All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case, however, serious the crime and however incriminating the circumstances may be against a person supposed to be guilty of a crime of Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging of a charge-sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it.”
44. In the famous case of Ch. Bhajan Lal (State of Haryana and others vs Ch. Bhajan Lal and others, AIR 1992 SC 604, the Supreme Court laid down principles relating to inquiry, investigation as well as quashing of a FIR in some elaboration. In this case also, the Court was concerned with a complaint relating to commission of offence under Section 5(1) of the Prevention of Corruption Act. While stating the principle that in a cognizable offence, the powers of the investigating officer under Section 157 of Chapter XII are unfettered, the Court cautioned that it should be exercised in strict compliance with the provisions of the Chapter. The primary question before the Court was in relation to exercise of inherent powers under Section 482 of the Code of Criminal Procedure in relation to quashing the first information report and holding the same as not justified, Their Lordships also laid down guidelines in relation to the powers of the investigating officer and the officer in charge of a police station in terms of Section 154(1) of the Code. The view expressed by the Bench on this aspect of the matter which is relied upon by the learned Counsel appearing for the State is summed up in paragraphs 79 to 82 of the judgment, which reads as under :-
“79. The gravaman of the accusation is that Ch.
Bhajan Lal has amassed huge assets by misusing his ministerial authority earlier to 1986 which assets are disproportionate to his known and licit sources of income. It has been repeatedly pointed out that mere possession of any pecuniary resources or property is by itself not an offence, but it is the failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitutes the offences within the ambit of Sec. 5(1)(e) of the Act. Therefore, a police officer with whom an investigation of an offence under Section 5(1)(e) of the Act is entrusted should not proceed with a pre-conceived idea of guilt of that person indicted with such offence and subject him to any harassment and victimisation, because in such offence and subject him to any harasment and victimisation, because in case the allegations of illegal accumulation of wealth are found during the course of investigation as baseless, the harm done not only to that person but also to the office, he held will be incalculable and inestimable.
80. In this connection it will be appropriate to recall the views expressed by Mitter, J. in Sirajuddin v. State of Madras (1970) 3 SCR 931 : (AIR 1971 SC 520) in the following words (at p. 526 of AIR) :
” Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general …..
The means adopted no less than the end to be achieved must be impeccable.”
81. Mudholkar, J. in a separate judgment in State of Uttar Pradesh v. Bhagwant Kishore Joshi (1964) 3 SCR 71 at p. 86: (AIR 1964 SC 221 at p. 227) while agreeing with the conclusion of Subba Rao, J. (as he then was) has expressed his opinion stating :
“In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it.”
82. We are in agreement with the views expressed by Mitter, J. and Mudholkar, J. in the above two decisions.”
45. It can also be usefully noticed at this stage itself that a Division Bench of this Court in the case of Dnyandeo Krishna Chaudhary and another vs State of Maharashtra and others, 1999 (2) Mh. L. J. 134, had also taken the view that where the report discloses cognizable offence, police must register the crime and proceed further as per the provisions of the Act and had relied on the case of Bhajan Lal (supra) and issued certain directions as police had not registered the case.
46. Another case which expanded the principle of criminal jurisprudence and referred to the scope of an inquiry and investigation as contemplated under the provisions of the Code is Jacob Mathew vs State of Punjab and another, (2005) 6 SCC 1, where a case against the Appellant was registered under Section 304A of the Indian Penal Code for causing death due to negligence by administering medicineMedicine Refers to the practices and procedures used for the prevention, treatment, or relief of symptoms of diseases or abnormal conditions. This term may also refer to a legal drug used for the same purpose. of which knowledge was not possessed by the Doctor. Emphasizing the need for a proper investigation and even conducting of a preliminary inquiry prior to registration of a case against the Doctors charged with such offences, the Court held as under :-
“52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Government in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”
47. In the case of Shashikant vs Central Bureau of Investigation and others, JT 2006 (9) SC 603, the appellant claimed himself to be a vigilant employee and made an anonymous complaint to the Central Bureau of Investigation alleging corrupt practices and financial irregularities on the part of some officers of his Department. A preliminary inquiry was conducted, statements of various persons were recorded and then a case was registered. After registration of the first information report, recommendations were made for holding departmental proceedings against the concerned officers. The Court while approving conducting of a preliminary inquiry and referring to the Central Bureau of Investigation Manual which provides for a preliminary inquiry in terms of paragraph 9.1 of the CBI Manual, made out a distinction between a preliminary inquiry and regular case. In this context, the Court held as under :-
“19. Although ordinarily in terms of Section 154 of the Code, when a report is received relating to the cognizable offence, a First Information Report should be lodged, to carry out a preliminary inquiry even under the Code is not unknown.
20. When an anonymous complaint is received, no investigating officer would initiate investigative process immediately thereupon. It may for good reasons carry out a preliminary enquiry to find out the truth or otherwise of the allegations contained therein.
….. ….. …..
25. Only an anonymous complaint was made in June 2004. Evidently it was within the province of the first respondent to commence a preliminary inquiry. The procedure laid down in the CBI Manual and in particular when it was required to inquire into the allegation of the corruption on the part of some public servants, recourse to the provisions of the Manual cannot be said to be unfair. It did not find any reason to convert the preliminary inquiry into a regular case. Pursuant to or in furtherance of the recommendation made by the first respondent, which had received the imprimatur by the Central Vigilance Commssion, departmental proceedings were initiated. The Central Vigilance Commission advised the Railway Board to initiate minor penalty proceedings against the delinquent officers by a letter dated 4-8-2005.”
48. The view taken by the Supreme Court in Shashikant’s case (supra) was reiterated with greatest significance by equi bench of the Supreme Court in Rajinder Singh Katoch v. Chandigarh Admn. & Ors., (2007) 10 SCC 69 where the Court was concerned with the allegation of wrongful restraint by co-sharer under Section 339 of the Indian Penal Code. Defining the limitation of the said provision and its applicability to the facts and circumstances of the case, the Court also dwelt upon the scope of Sections 154, 156 and 157 of the Code of Criminal Procedure. The Supreme Court after noticing the judgment s case (supra), held as under:
in Ramesh Kumari’ “8. Although the officer in charge of a police station is legally bound to register a first information report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them give rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned, the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not. In this case, the authorities had made investigations into the matter. In fact, the Superintendent of Police himself has, pursuant to the directions issued by the High Court, investigated into the matter and visited the spot in order to find out the truth in the complaint of the petitioner from the neighbours. It was found that the complaint made by the appellant was false and the same had been filed with an ulterior motive to take illegal possession of the first floor of the house.
9. Ms Madan contended that the right of the appellant to live in the joint family cannot be taken away. Right of a co-sharer to enjoy the joint family property is a civil right. Such a right, if denied by the other co-sharers for one reason or the other, must be enforced by taking recourse to the remedies available under the civil laws.
10. Criminal proceedings, in our opinion, cannot be taken recourse to for enforcing such a civil right. In any event, in a case of this nature where the authorities bound by law have already investigated into the matter and found that the allegations made by the appellant against Respondent 4 were not correct, it would not be proper for us to issue any direction to Respondents 1 to 3 to lodge a first information report.
11. We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi ) wherein such a statutory duty has been found in the police officer. But, as indicated hereinbefore, in an appropriate case, the police officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not.
49. Taking cue from either of the above referred judgments and within the scope of the principles enunciated in those judgments, different benches of this Court also took somewhat similar view. The Division Bench of this Court in the case of Kotak Mahindra Bank Ltd.
v. Nobiletto Finlease and Investment Pvt. Ltd., 2005(3) Mh.L.J. 512, primarily on the first principle, of course while concerning with the case instituted upon a private complaint in terms of Section 200 of the Code of Criminal Procedure for an offence under Section 406 of the IPC and referring to Rule 113(12) of the Bombay Police Manual, 1959, held that, holding preliminary inquiry even prior to recording of F.I. R. in terms of Section 154 was not impermissible and in fact in a given case, such an inquiry would be necessary. The Bench expressed the view that the F.I. R. would have to be registered wherever it makes out cognizable offence, but in cases where the accusations made in the complaint are doubtful, certainly the police authorities can inquire as to whether the accusations prima facie appear to be disclosing a cognizable offence but in no case the police authority can be permitted to say that it would not make any record in relation to such an inquiry or the steps taken by them in relation to the preliminary inquiry in the station diary.
50. Another Bench of this Court in its judgment delivered on 2nd November, 2007 in Criminal Writ Petition No.89 of 2007 (Kalpana Kutty v. State of Maharashtra), while dealing with the provisions under Section 51 of the Copyright Act, it being a cognizable offence and while dealing with the grievance of the petitioner in the petition regarding non-registration of FIR, after referring to the judgment of the Supreme Court in the above referred cases as well as in Ramesh Kumari’s case (supra), concurred with the view expressed in the judgment in Kotak Mahindra Bank Limited’s case (supra), and held that if a complaint appears to be in need of further inquiry to ascertain whether cognizable offence is disclosed or not, preliminary inquiry can be conducted before taking a decision whether to register the offence or not. Prior to the judgment in Kalpana Kutty’s case (supra), the judgment, which has given rise to the present reference in Shyamsundar Agarwal’s case (supra), came to be delivered on 30th April, 2007. The Court did refer to the various judgments of the Supreme Court including the judgment in Lallan Choudhary’s case (supra), and Ramesh Kumari’s case (supra) and after a detail discussion, the Bench concluded as under:-
“57. From the above discussion, the following conclusions emerge, which answer the questions raised before us.
(a) When an information relating to the commission of a cognizable offence is received by an officer in charge of a police station, he has to register a FIR as required by section 154(1) of the Code. If the information discloses a cognizable offence, FIR must be registered.
(b) If the information received does not disclose a cognizable offence but indicates the necessity for further inquiry, preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not.
(c) Where the source of information is of doubtful reliability i.e. an anonymous complaint, the officer-in-charge of the police station may conduct a preliminary inquiry to ascertain the correctness of the information.
(d) If his inquiry discloses cognizable offence, he must register FIR. If it does not, he must accordingly inform the superior officer and the superior officer shall communicate the decision to the complainant.
(e) Preliminary inquiry has to be done having regard to Rule 113(12) of the Bombay Police Manual and all the steps taken by the police officer while conducting the preliminary inquiry must be reflected in the station diary.
(f) Preliminary inquiry must be expeditious and as far as possible it must be discreet.
(g) Before a public servant is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct and a FIR is lodged against him, there must be some suitable preliminary enquiry into the allegations, by a responsible officer. But preliminary enquiry is not restricted only to cases where the accused are public servants or doctors or professionals holding top positions. As to in which case preliminary inquiry is necessary will depend on facts and circumstances of each case.
(h) As to what type of preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.
(i) Observations of this court in Kotak Mahindra’ s [2005 ALL MR (Cri) 1983] (supra), cover the procedure and modalities of preliminary inquiry which will have to be followed by the police officer.
It is only in cases where cognizable offence is not disclosed and there is need to conduct further inquiry to ascertain whether cognizable offence is disclosed or not that the police officer can conduct preliminary inquiry and not in all cases. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action may have to be taken against an erring officer who does not register the FIR if information received by him discloses cognizable offence.
(k) Whether a writ petition under Article 226 of the Constitution of India or a petition under section 482 of the Code filed by a person making a grievance that though the complaint filed by him discloses a cognizable offence, the police have not registered offence, should be entertained by this court or not will depend on facts and circumstances of each case.
(l) Ordinarily, aggrieved person should be relegated to the alternative remedy of filing a private complaint.
(m) However, in gross cases of grave injustice, such petitions can be entertained by this court. Such cases would obviously be exceptional.”
51. The decision of the Division Bench in Kalpana Kutty’s case (supra) refers to similar analysis and conclusions as in Shyamsundar Agarwal’s case (supra). The Bench which dealt with the case in hand had formed an opinion with reference to the clauses (b) and (c) of paragraph 57 of Shyasmsundar’ s judgment (supra) and even other clauses that the law was not correctly stated in these judgments particularly keeping in mind the principles stated in Prakash Singh Badal’s case (supra) and found that the clauses particularly the clauses (b) to (f) were not contemplated in law and thus felt compelled to make a reference to a larger bench.
52. Now we may proceed to examine the view expressed by the Supreme Court in some other cases. At the very outset, we may notice that none of these judgments or legislative interpretation even prohibit or take the view that preliminary inquiry pre-registration is impermissible in law.
53. The learned Counsel appearing for the State while relying upon paragraph 80 of the judgment of the Supreme Court in Bhajan Lal’s case (supra) contended that the preliminary inquiry pre-
registration to FIR is permissible and the principle enunciated by the Supreme Court in Bhagwant K. Joshi’ s case (supra) has been reiterated by the Supreme Court with approval. While arguing to the contrary, the learned Counsel appearing for the Respondent placed heavy reliance upon paragraphs 27 to 32 of the judgment to argue that the use of the words `no other option except to enter the substance thereof in the prescribed form’ clearly mandates that the reasonableness or credibility of the information cannot be examined by the officer in charge of a police station and should register the information immediately. In order to place these contentions in their correct perspective, it will be useful to reproduce the above referred paragraphs relied upon by the learned Counsel for the Respondent.
The said paragraphs read as under :-
“27. Before discussing which of the submissions ought to prevail, we shall in the foremost deal with the legal principles governing the registration of a cognizable offence and the investigation arising thereon. Section 154(1) is the relevant provision regarding the registration of a cognizable offence and that provision reads as follows:-
“Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”
28. The above sub-section corresponds to Section 154 of the Old Code (Act of 1955) and also to Section 154 of the Code of Criminal Procedure of 1882 (Act X of 1882) except for the slight variation in that expression`local Government’ had been used in 1882 in the place of `State Government’ . Presently, on the recommendations of the 41 Report of the Law st Commission, the sub-sections (2) and (3) have been newly added but we are not concerned with those provisions as they are not relevant for the purpose of the disposal of this case except for making some reference at the appropriate places, if necessitated.
Section 154(1) regulates the manner of recording the First Information Report relating to the commission of a cognizable offence.
29. The legal mandate enshrined in Section 154 (1) is that every information relating to the commission of a “cognizable offence” (as defined under Section 2
(c) of the Code) if given orally (in which case it is to be reduced into writing) or in writing to “an officer in charge of a police station” (within the meaning of Section 2(o) of the Code) ;and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as “First Information Report” and which act of entering the information in the said form is known as registration of a crime or a case.
30. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of a Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested on him and to register a case on the information of a cognizable offence, reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
31. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1) (a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike for the reason that 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 on credibility of the information. In other words, reasonableness’ or `credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that `every complaint or information’ preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter read that `every complaint’ preferred to an officer in charge of a police station shall be reduced into writing. The word `complaint’ which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word `information’ was used in the Codes of 1882 and 1955 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act II of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.
32. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said 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.”
54. In the case of Mohindro v. State of Punjab, AIR 2001 SC 2113, the Bench of the Supreme Court by a short order held that:-
“………. Though the learned Counsel appearing for the State of Punjab stated that there had been an inquiry, we fail to understand as to how there can be an enquiry without registering a criminal case. On the facts alleged, it transpires that the appellant approached the police for registering a case and get allegation investigated into and yet for no reasons whatsoever the police failed to register the case.”
The Supreme Court directed the registration of the case.
55. Thereafter, in the case of Ramesh Kumari v. State (N.C. T.
of Delhi ) & Ors., AIR 2006 SC 1322, the Supreme Court, while referring to the Bhajan Lal’s case (supra) and while directing the case to be registered and transferred to the Central Bureau Investigation for further investigation, held as under:-
“3. Mr.Vikash Singh. Learned Additional Solicitor General, at the outset, invites our attention to the counter-affidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge. filed by the respondent and submits that pursuant to the aforesaid observation of the High Court the complaint/representation has been subsequently examined by the respondent and found no genuine case was established. We are not convinced by this submission because the sole grievance of the appellant is that no case has been registered in terms of the mandatory provisions of Section 154(1) of the Criminal Procedure Code. Genuineness or otherwise of the information can only be considered after registration of the case.
Genuineness or credibility of the information is not a condition precedent for registration of a case. We are also clearly of the view that the High court erred in law in dismissing the petition solely on the ground that the contempt petition was pending and the appellant had an alternative remedy. The ground of alternative remedy or pending of the contempt petition would be no substitute in law not to register a case when a citizen makes a complaint of a cognizable offence against the Police Officer.
4. That the Police Officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code are no more res integra. The point of law has been set at rest by this Court in the case of State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC
335. This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding in paras 31 and 32 of the judgment as under: AIR 1992 SC 604, Paras 30, 31 and 32.”
56. In the case of Superintendent of Police, CBI Ors. v. Tapan Kumar Singh, (2003) 6 SCC 175, the Supreme Court, while setting aside the order of the High Court in exercise of its revisional jurisdiction quashed the General Diary Entry, the FIR and the investigation, observed as under:-
“19. The High Court fell into an error in thinking that the information received by the police could not be treated as a first information report since the allegation was vague inasmuch as it was not stated from whom the sum of rupees one lakh was demanded and accepted. Nor was it stated that such demand or acceptance was made as motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show in exercise of his official function, favour or disfavour to any person or for rendering, attempting to render any service or disservice to any person. Thus there was no basis for a police officer to suspect the commission of an offence which he was empowered under Section 156 of the Code to investigate.
20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence.
The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commision of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.”
( Emphasis supplied )
57. In the case of Lallan Choudhary & Ors. v. State of Bihar & Anr., AIR 2006 SC 3376, the Supreme Court again reiterated the principle while observing that there was no justification for not registering a case despite endorsement of the complaint by Special Divisional Magistrate and the charge sheet was submitted much thereafter in that context for an offence under Sections 345, 332, 334 of Indian Penal Code, the Court held as under: –
“10. The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Code.
11. ………. It is well settled principle of law that in criminal trial, investigation is proceeded by an FIR on the basis of written complaint or otherwise disclosing the offence said to have been committed by the accused. In the present case, a grave miscarriage of justice has been committed by the SHO of concerned Police Station by not registering an FIR on the basis of offence disclosed in the complaint petition.
The concerned police officer is statutorily obliged to register the case on the basis of the offence disclosed in the complaint petition and proceed with investigation in terms of procedure contained under Sections 156 and 157 of the Code. The FIR registered by the Police would clearly disclose that the complaint for offence under Section 395 IPC has been deliberately omitted and, therefore, no investigation, whatsoever, was conducted for the offence under Section 395 IPC.”
58. This view was also taken by the Supreme Court in the case of Madhu Bala vs Suresh Kumar & Ors., (1997) 8 SCC 476. In that case, the Court was primarily concerned with the power of Magistrate and compliance to the direction contained in terms of provisions under Section 156(3) for investigation. While emphasizing the need for formal registration of the case, the Supreme Court observed that the police are normally duty bound to register a case.
Thereafter, in a more recent judgment in the case of Prakash Singh Badal & Another vs State of Punjab & Others, (2007) 1 SCC 1, the Supreme Court was primarily concerned with the case of the appellants who have been charged under the provisions of Prevention of Corruption Act, 1988 for having assets disproportionate to known source of income and alleged to have committed an offence under Sections 8 and 9 of the Act. The question of sanction for prosecution of the said appellant arose and in this backdrop the Supreme Court also dealt with the remedy available in terms of Section 154(3). The Court has held as under: –
“65. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a “cognizable offence” [as defined under Section 2(c) of the Code] if given orally ( in which case it is to be reduced into writing ) or in writing to “an officer in charge of a police station” [within the meaning of Section 2(0) of the Code] and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as “first information report” and which act of entering the information in the said form is known as registration of a crime or a case.
66. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof. In case an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
67. It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Sections 41(1)(a) or (g) of the Code wherein the expressions “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Sections 41(1)
(a) and (g) of the Code may be for the reason that 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 other words, “reasonableness” or “credibility” of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that “every complaint or information” preferred to an officer in charge of a police station should be reduced ino writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act of 1872) which thereafter read that “every complaint” preferred to an officer in charge of a police station shall be reduced in writing. The word “complaint” which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word “information” was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.
68. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said 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.”
59. We may also notice that in recent orders passed by the Supreme Court particularly in the case of Lalita Kumari vs Government of Uttar Pradesh in Writ Petition (Crl) No.68 of 2008 dated 14th July, 2008, the Supreme Court has given certain directions and has noticed with some emphasis that there are innumerable cases that where the complainant is a practical person, the FIRs are registered immediately while in other cases they are registered after quite some time and the Station Officer of the concerned Police Station is pressurizing the complainant to withdraw the complaint.
The Court passed further direction to all the Governments through the Chief Secretaries to the respective States.
60. It is evident from the analysis of the above judgments of the Supreme Court as well as this Court that there are some what divergent points of view taken by the different Benches of the Court.
Of course, they cannot be termed as diametrically divergent views.
They can be easily reconciled if looked from appropriate perspective in the backdrop of respective facts. The judgments which have taken the view that there is permissibility within the scope of Section 154 for an officer in charge of a police station to conduct some kind of an inquiry pre-registration of the FIR have stated so to be an exception and not the rule. In other words, it has to be one of those rare cases where recourse to such a procedure may be adopted. As a rule and as requirement of law, the police officer in charge of a police station is stated to have hardly any discretion in registering the case once the information given to such an officer discloses a cognizable offence.
The essence appears to be that the information should disclose commission of a cognizable offence which alone would vest power and jurisdiction in the officer in charge to put into motion the investigation machinery. It needs to be noticed with some emphasis that it is not necessary that FIR should be registered for the purposes of setting the mechanism of investigation into motion. It is sufficient that a cognizable offence is disclosed by the information given. This is the true implication of the provisions of Section 154 read with Section 157 of the Code. The Supreme Court and Privy Council have consistently taken the view that for investigation to commence, registration of a FIR is not a sine qua non (Emperor vs Khwaja Nazir, AIR (32) 1945 PC 18, and Apren Joseph @ Current Kunjukunju and others vs State of Kerala, AIR 1973 SC 1).
61. One of the arguments raised before us on behalf of the Petitioners was that the judgments relied upon by the State are judgments on their own facts and cannot be constituted as precedent of law settling or answering proposition involved in the present case.
Somewhat similar is the contention on behalf of the State. It can hardly be disputed that the dictum of the Supreme Court and even this Court are judgments on facts and circumstances of those cases.
In each case, whether for and against the proposition of law, there were peculiar circumstances. Despite ingredient of the Section being satisfied, the police had intentionally not registered or delayed the registration of information disclosing the cognizable offence. While in other cases, there was an over-zeal on the part of the police and while even conducting the pre-registration inquiry they acted unfairly.
Still, a third class of cases is where despite an offence having been made out the investigating agency or the police officer in charge, neither entered upon a preliminary inquiry pre-registration nor even registered the case thus compelling the aggrieved party to approach the High Court under Article 226 of the Constitution of India. There are also cases where the investigation was so unfair and opposed to the rule of law that parties had come for quashing of an FIR or for transfer of investigation to CBI. Whichever view is accepted as correct exposition of law, the basic principle therein is necessity of bona fide exercise of power and unbiased and fair investigation of an alleged offence by the police. Rule of criminal jurisprudence make no exception to the principle that a fair investigation is the soul of proper administration of criminal justice system. Criminal justice system has two components. The role of the State and role of the judiciary.
Exercise of power or authority by any of these components has to ensure due protection with dignity to the rights of a complainant as well as suspect and the society at large, while ensuring that there is no adverse impact on the social fabric of the society.
62. It is required to be noticed with some emphasis that the judgment in the case of Bhagwant Kishore Joshi (supra) is a judgment delivered by a Bench of three Judges, while all the other judgments relied on by either parties are judgments by two Judge Bench. In that case, the Supreme Court had clearly taken the view while explaining the word “investigation” that merely making some preliminary inquiry upon receipt of the information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. The Court further clarified that in absence of any prohibition in the Code, express or implied, it was open to the police officer to make such preliminary inquiry.
63. The judgment of Ramesh Kumari vs State, ((2006) 2 SCC 677, was duly noticed by the Supreme Court in the case of Rajinder Singh Katoch (supra). The judgment in Rajinder Singh Katoch (supra) had been pronounced after the judgment of the Supreme Court in Badal’s case (supra). In other words, the view taken in Rajinder Singh Katoch’s case (supra) is in the latest judgment where the subject in controversy has been discussed in some detail.
64. In other words, the judgments of the Courts have permitted and accepted the practice of pre-registration inquiry, of course with a limited compass and with utmost caution. It is obvious that such limited inquiry is not specifically and/or by necessary implication prohibited under the provisions of Section 154 of the Code. It is expected of the officer in charge of the police station to examine whether the information received is disclosing a cognizable offence or not. In absence of such disclosure, he attains no jurisdiction to look into the matter or authority to investigate without leave of the Court if the offence is non-cognizable. Even during this limited process of examining and conducting some kind of an inquiry to establish those ingredients, the officer concerned is to do nothing which is unjust or unfair. He essentially must examine the complaint/information as it comes to him.
65. In the case of S N Sharma vs Bipen Kumar Tiwari and others, AIR 1970 SC 786, , a three Judge Bench of the Supreme Court while dealing with the provisions of Section 157, held as under :-
“…. Section 157 requires that, whenever such information is received by an officer in charge of a police-station that he has reason to suspect the commission of an offence which he is empowered to investigate under Section 156, he must forthwith send a report of it to the Magistrate empowered to take cognizance of such an offence upon a police report and, at the same time, he must either proceed in person, or depute one of his subordinate officers to proceed, to the spot to investigate the facts and circumstances of the case, and, if necessary, to take measures for discovery and arrest of the offender. This provision is qualified by a proviso which is in two parts. The first clause of the proviso enables an officer in charge of a police station not to proceed to make an investigation on the spot or to depute a subordinate officer for that purpose if the information received is given against a person by name and the case is not of a serious nature. The second clause of the proviso permits the officer in charge of a police station not to investigate the case if it appears to him that there is no sufficient ground for entering on an investigation. The report to be sent to the Magistrate under Sub-section (1) of Section 157 requires that in each of the cases where the officer in charge of the police station decides to act under the two clauses of the proviso, he must state in his report his reasons for not fully complying with the requirements of Sub-section (1) and, in addition, in cases where he decided not to investigate on the ground mentioned in the second clause of the proviso, he is required to notify to the informant the fact that he will not investigate the case or cause it to be investigated. ……”
66. Whenever information is received by an officer in charge of a police station and that he has reason to suspect the commission of an offence which he is required to investigate under Section 156, he must forthwith send a report of it to the Magistrate empowered to take cognizance of such an offence. The provision is qualified by a proviso which is in two parts. The first clause of the proviso enables an officer in charge of a police station not to proceed to make an investigation on the spot or to depute a subordinate officer for that purpose if the information received is given against a person by name and the case is not of a serious nature. The second proviso permits investigating officer not to investigate the offence if it appears to him that there is no sufficient ground for entering on an investigation.
These two provisos seen in the light of the word `if’ as is used by the Legislature at the very opening of the provisions of Section 157 introduces some element of discretion, of course, a very restricted one which again has to be exercised bona fide and fairly.
67. There is an inseparable link between the provisions of Sections 154 and 157 of the Code. Both these provisions fall under Chapter XII of the Code and provide a chain right from receipt of a information relating to commission of a cognizable offence up to the institution of process of investigation and submission of the relevant report to the Court of competent jurisdiction. It is a settled principle of law that all the relevant provisions of an Act should be examined to construe a provision. The Court has to examine impact of a provision keeping in view the scheme of the Code. Of course in some of the cases afore-referred, with reference to the facts of that case, the Supreme Court has observed that the officer in charge of a police station is required to register the case upon receiving the information.
In Sirajuddin’s case (supra) which again had peculiar facts relating to Anti Corruption Department, the Court said that inquiry officer must not act under any pre-conceived idea of guilt of the person whose conduct has been inquired into and emphasized that Code of Criminal Procedure is an enactment designed, inter alia, to ensure fair investigation of the allegation. In this case, which has been relied upon by the Petitioners, the Supreme Court clearly stated the principle that the procedure adopted against the appellant before laying of FIR, though not in terms forbidden by law, was so unprecedented and outrageous as to shock one’ s sense of justice and fair play. The doctrine of fair play and unbiased mind is underlying feature of the view expressed by the Supreme Court in this case. Thus, the Supreme Court condemned the manner in which the investigation was conducted pre-registration and did not come to the conclusion that such inquiry pre-registration was impermissible.
68. Even in the case of Tapan Kumar (supra), the Supreme Court culled out a very fine distinction stating that on the information given to the police officer, even if he suspects the commission of a cognizable offence or not, he must be convinced or satisfied that cognizable offence has been disclosed in the information. If he has reasons to suspect on the basis of information received that a cognizable offence may have been committed, he is bound to record information and conduct an investigation. The emphasis is that the police officer has reasons to suspect commission of a cognizable offence. Of course, it is not the requirement of law that a police officer has to verify the truthfulness of the allegations pre-registration, if taken on its face value, the information discloses a cognizable offence. In the case of Lallan Chaudhary (supra) also the Supreme Court held that reliability, genuineness and credibility of information are not the conditions precedent for registering a case under Section 154 of the Code.
69. There is hardly any judgment, which in express terms has taken the view that any kind of inquiry by the officer in charge of a Police Station is forbidden and prohibited under the law. It is one thing to say that it is mandatory duty or obligation of the Police Officer to register the FIR when the information provided to him is in relation to the commission of a cognizable offence but still another thing to say that after noting the information brought to his notice and before recording the substance thereof in the notified book ( i.e. FIR Register) the law prohibits in express terms to make any inquiry in relation to the commission of that offence. The paramount condition attached to exercise of duty under Section 154 is that it should be performed bona fidely, fairly and without any undue delay.
70. The provisions of Section 154 of the Code impose an absolute obligation and duty upon the officer in charge of a police station to record information in the prescribed book of a cognizable offence (FIR register), but it is difficult for the Court to construe in absence of any express language that this provision forbids any kind even preliminary inquiry prior to registration of the FIR. We are unable to notice anything in the language of the section which by necessary implication debars in law such an inquiry. The Supreme Court in the case of Bhagwant Kishore Joshi (supra), a judgment which was delivered by a three Judge Bench, took the view that such an inquiry, of course for a very limited purpose and bona fide object, was not debarred under the provisions of Section 154. Again, a three Judge Bench of the Supreme Court in the case of Jacob Mathew (supra), in unambiguous terms declared that pre-registration inquiry would be permissible, but again for a class of persons i.e. Medical Practitioners. The investigating agency was cautioned in that case not to cause harassment to the Doctors in furtherance to a private complaint unless some prima facie evidence of rash and negligent act on the part of the accused Doctor was brought on record before the investigating officer. The principle enunciated in both these judgments, particularly in the case of Bhagwant Kishore Joshi (supra), is not subject matter of a detailed discussion by any of the subsequent Benches of the Supreme Court, except in the case of Rajinder Singh Katoch (supra), a judgment pronounced by a two Judge Bench of the Supreme Court after declaration of law in Prakash Singh Badal’s case (supra) which also specifically noticed Ramesh Kumari’ s case (supra) and declared the principle that some kind of preliminary inquiry would be permissible prior to registration of the case. It needs to be noticed at the cost of repetition that judgments of the Supreme Court delivered by two Judges Bench have taken the view that there is no option with the police officer in charge of a police station but to register the FIR. The view is obviously relateable to the facts of those cases and in all those cases the conduct of the investigating agency had been deprecated and the Court took the view that reliability, genuineness and credibility of information are not the condition precedent for registration of a case under Section 154 and provisions of Section 154 are mandatory and officer in charge of police station is duty bound to register the case on receiving the information disclosing a cognizable offence. (See Lallan Chaudhary (supra) and Ramesh Kumari (supra)). However, in the case of Mohindro (supra), the Court observed on facts of that case that for no reason whatsoever the police had not registered the case and proceeded to pass the appropriate direction.
71. Thus it is evident that information must relate to `commission of a cognizable offence’.
If the information given ex facie is so absurd or lacks essential ingredients of the allegedly committed cognizable offence, the investigating officer after making a due entry in the prescribed books like daily diary, general diary or station diary or daily roznamachar, could step into the limited preliminary inquiry and then within a very short time and most expeditiously register the FIR unless the information does not disclose commission of a cognizable offence. Such exercise has to be bona fide, fair and must stand to the test of judicious exercise of power. Such cases would be by and large very few and rare cases where the police officer has to conduct preliminary inquiry pre-registration of a FIR for a very limited period. Taking an example of such rare and exceptional cases, an informant by a telephone makes a call that there has been a blast at a railway station causing injury and death of number of persons and names the persons who has alleged to have effected the bomb blast.
A police officer is obliged to make an entry in the daily diary register and at least would verify the same by ringing up the nearest police station or the railway authority in charge of the railway station where such an incident is informed to have been occurred. If no incident has occurred at the railway station, the question of registering the FIR would hardly arise and he could proceed in accordance with law on the basis of the entry made in the daily diary register/station diary/roznamachar . In the case of Tapan Kumar Singh (supra), the Supreme Court has even held that an entry in the daily diary/station diary or roznamachar itself can be a FIR.
72. Another aspect which the Court may have to examine is avoiding absurd results while ensuring compliance to the provisions of Section 154 of the Code. In a given case, where a person of public importance or a public figure is stated to be abroad by print and press media, thus information is given to everybody and the informant goes to the police station and lodges a report that he was assaulted or legally confined by that person (public figure) in Mumbai. Such information may not demand instant registration of the FIR and after making due entry in the daily dairy register, the police officer may be within his rights at least to verify that fact reflected in the media before actually registering a first information report in the prescribed book which ultimately then must lead to entire investigation process, collection of evidence and presenting a report in terms of Section 173 (2) of the Code. Still further, there might be cases where information given by the informant may not indicate or suspect commission of a cognizable offence but some verification or some further information may bring those cases within the ambit of commission of a cognizable offence thus instantaneously registerable in accordance with the provisions of Section 154 of the Code. We have already said that such cases would be exceptional and rare. As a normal course the police officer in charge of a police station is bound to register the information in relation to commission of a cognizable offence and this is an absolute duty on the part of such officer.
73. One of the arguments is that whosoever furnishes false or incorrect information to the police or a public servant commits an offence punishable under Sections 177 and 180 of the Indian Penal Code. Thus no matter how absurd incorrect or false information might have been furnished to the police officer, the FIR should be registered forthwith. We are unable to find much merit in this submission for the reason that this will only generate more and more litigation which is not the object of any law much less a procedural law. The scheme of the Code does give element of very limited discretion to the investigating/police officer and a concept of preliminary inquiry within the very limited scope afore-indicated is not forbidden in law. Thus, it will achieve a greater object if in those exceptional and rare cases the investigating officer makes an entry in the daily diary register/station diary or roznamachar and upon a very limited criminal inquiry registers the FIR within two days or even otherwise proceeds in accordance with the provisions of the Code.
74. The scheme of the Criminal Procedure Code examined in conjunction with the provisions of the Indian Penal Code also provides an inbuilt safeguard against non-registration or undue delay in registering the FIR. Firstly, in terms of Section 154(3) of the Code, an informant or complainant has a right to approach the higher authorities in the case of non-registration praying not only for registration but even investigation by a higher authority. In addition to this, a public servant who disobeys law or direction of law is liable to be proceeded against and punished in terms of Sections 166 and 217 of the Indian Penal Code. This approach will draw equi-balance between the triangular protection projected under the scheme of the Code i.e. protection to victim/complainant, accused and the society at large. On the one hand, non-registration of a FIR instantaneously results in harassment to the victim, avoidance of obedience of law as well and adversely affects the society as it ultimately results in deterioration in law and order. On the other hand, registration of a cognizable offence can lead to instant arrest of the suspect and various other consequences which are contemplated in law. Some times they can even become irreversible and jeopardize the interest and protection of the suspect and also result in social resentment which adversely affects the administration of criminal justice.
75. The law and particularly the criminal law is an instrument to protect the interest of the society. The distinction between a cognizable offence and non-cognizable offence is to be kept in mind by the Court for proper appreciation of the arguments raised before us. The officer in charge of police station has wide powers and complete freedom in investigating the cognizable offence without any check or interference including arresting of the suspect. While in the case of non cognizable offence, the investigating officer is not entitled to even take on investigation much less arrest the suspect without the leave of the Court of competent jurisdiction. In order to prevent abuse of such power it is essential that the discretion given to the officer in charge of a police station is limited to bare minimum necessary and the provision is not given undue liberal construction or meaning. While following the view expressed by the Supreme Court in three Judge Bench cases of Bhagwant Kishore Joshi (supra) and Jacob Mathew (supra), it can safely be stated that the power to make preliminary inquiry to pre-registration of a case can be exceptionally or rarely exercised by the officer in charge of a police station that too after he enters the information in the relevant books like daily diary or general diary as known by different nomenclature at different places, and after concluding the preliminary inquiry expeditiously, preferably not exceeding the period of two days register the FIR in accordance with the law and/or proceed under other provisions of the Code as is evident from proviso (b) to Section 157(1) of the Code.
Police Manual
76. Now let us also examine if the police authorities or investigating agency is controlled by any directions in relation to the registration of a case and conducting investigation. Section 154(1) contemplates that the information in regard to commission of cognizable offence shall be reduced in writing and substance thereof should be recorded in the book prescribed by the competent Government in that behalf. Thus, it is for the Government to notify the format of recording of FIR register. The learned Counsel appearing for the State placed on record the copy of the prescribed form relating to FIR under Section 154 of the Code of Criminal Procedure. This proforma has as many as 13 columns and is required to be signed by the complainant and the officer in charge of a police station, and thereafter, within the prescribed period has to be sent to the Court of competent jurisdiction which has to make endorsement thereon.
77. The Maharashtra Police Manual Part-III also deal with the subject in question. Rule 113 in Chapter IV of the Bombay Police Manual, is another provision which can usefully be noticed for the purposes of better understanding of the scheme of investigation prescribed under the Code read in conjunction with the Standing Orders and the Police Manual. For registration of the FIRs, the State Government is required to provide two kinds of registers, one is for registration of cognizable offence and another is for registration of non-cognizable offence (Refer Sections 154 and 155 of the Code, respectively.) Not only this, in terms of Section 157(1), the State Government is required to prescribe the manner in which the Investigating Officer is expected to inform the authorities concerned in the notified format, once he decides not to enter upon the investigation. In Standing Order No.6 issued by the Bombay Police, it has been stated, inter alia, that as soon as the information is given, it should be recorded without waiting for the appearance of the aggrieved party. It also follows that once the information is given and the police machinery has been set in motion, there can be no withdrawal by the aggrieved party of the complaint. Clause (3) of the said Standing Order further contemplates that where the officer himself either suspects commission of an offence or has actually witnessed the commission thereof though it is not obligatory on his part to record an FIR in terms of Section 154 but it is always desirable even in those cases for him to record an FIR. In terms of Clause (6) of the said Standing Order, each cognizable offence reported must be registered in the Cognizable Crime Register (P.M. 37e) by the officer recording F.I.R. even if it is treated and disposed of under Section 157(1)(b) of the Code. Clause 11 of the said Standing Order has some relevancy and rather than referring to its contents, it will be useful to reproduce the said clause:-
“11. When cognizable offence is not immediately disclosed. – If the information, through whatever channel received, does not disclose a cognizable offence but indicates the necessity for further enquiry, the S. H. O. should note the information in the Station Diary and make further inquiries; he should proceed to the place concerned if necessary. If after such enquiry, he is satisfied that the facts disclose a cognizable offence, he should deal with it according to law.”
78. Rule 113 of Section 3 of Chapter IV of the Bombay Police Manual ( dealing with the investigation of crimes) reads as under:-
“113. First Information of a Cognizable Offence.-
(1) Section 154 of the Criminal Procedure Code requires that every information of the commission of a cognizable offence, when given to the officer in charge of a Police Station, should, if given orally, be reduced to writing by the officer himself or under his supervision. It is not necessary that the information must be given necessarily by the person aggrieved by the commission of the offence.
“Information” as contemplated by the Section is not the same thing as a “complaint” as defined in Section 4(n) of the Criminal Procedure Code. It follows that as soon as information is given, it should be recorded at once without waiting for the appearance of the aggrieved party. It also follows that once the Police machinery has been set in motion by the giving of information, there can be no withdrawal by the aggrieved party. Further, it is not necessary that the information must be given by a person having first hand information of the commission of the offence, so long as the person giving it undertakes responsibilities entailed by given it.
….. ….. …..
(12) It is always advisable, before recording first information, to warn the informant against giving false or exaggerated information and also to give him an opportunity to think coolly what he wishes to say. If the information, through whatever channel received, does not disclose a cognizable offence but indicates the necessity for further enquiry, the Police Station Officer should note the information in the station diary and proceed to the place concerned; and if after inquiry he is satisfied that the facts disclose a cognizable offence, he should deal with it according to law.”
79. Rule 115 of the Police Manual reads as under :-
“115. Registration of Cognizable Offences. – (1) All cognizable offences reported must be registered in the Cognizable Crime Register (P.M. 37e) by the officer in charge of the Police Station, even if treated under Section 157(1)(b) of the Criminal Procedure Code. (G.R., H.D., No. 1575/2 dated 1st September 1937).
(2) There should be two separate Crime Registers maintained, one for Indian Penal Code (Classes I to V) offences and the other for Class VI offences in the offices of the Superintendents of Police in charge of sub-divisions and Sub-Divisional Police Officers, and in Police Station offices which ordinarily register 200 or more offences per year. Other Police Stations should have only one register. (I.G.’ s No. 26, dated 19th December 1946).
(4) Complaints referred to the Police for enquiry under Section 156 or 202, Criminal Procedure Code should not be entered in the Superintendent’s or Sub-Divisional Officers’ Crime Register, but they should be entered in the Police Station Crime Register under an `M’ number at the end. (G.R. J.D., No. 4086, dated 14th July 1911 and No. 7244, dated 19th December 1911).
(5) Cases enquired into under Section 174, Criminal Procedure Code should be entered into Crime Register, in a separate portion of the Register reserved for this purpose. This portion should be further divided into two parts i.e., for (a) accidental deaths and (b) other unnatural deaths. In case there is slightest suspicion of foul play, offence should be registered.”
80. Clause 3 of Standing Order No. 34 reads as under :-
“(3) Events to be recorded in Station Diary – Below are some of the events and occurrences which must necessarily be recorded. The time of the events should be shown as from 0-00 hours to 24-00 hours and not by reference to a.m. or p.m. (1) The time of taking over Station House Duty mentioning the number of prisoners then in the lock-up, the firearms and ammunition usually kept in charge of the Station House Officer for emergencies, the condition of the lock-up and the amount of bail deposit money or other exhibits taken over from the relieved officer.
(2) The time of registration of all cognizable and non- cognizable cases, showing the sections of law under which they are recorded.
(3) The arrests of suspected criminals, deserters, absconders, vagrants and lunatics, mentioning the time and place and the circumstances of their arrest; the explanations offered by the arrested persons in respect of the property found with them or about their presence in the particular place at the time of arrest, their native place and whether they had previous convictions should also be recorded.
…. ….. …..”
81. Cumulative reading of these abstracts of the Police Manual as well as that of Standing Orders clearly show that there is an obligation on the part of the Police Officer in charge of a police station to register FIR and once the police machinery has been set in motion, there cannot be reversal of process but it essentially must be taken to its logical end, i.e. filing of a Report under Section 173 of the Code of Criminal Procedure or to a situation contemplated under Section 157(3). Clause 12 prescribes that if the information through whatever channel received does not disclose a cognizable offence but indicates the necessity for further inquiry, the Police Station Officer should note information in the Station Diary and proceed to concerned place and if after inquiry he is satisfied that the facts disclose cognizable offence, he should deal with the matter in accordance with the law. In other words, there is no much discretion vested in the Officer in charge of a Police Station; it only gives him some leverage in exceptional cases where upon the information received, it is difficult for any person of common prudence to say that a cognizable offence at that stage is made out and there may be need to look into the matter and after proceeding with preliminary inquiry, the information should be registered without any further delay. Examining and analyzing from closer angle, there is hardly any variation in the judicial view and the language of the Police Manual and Standing Orders.
All these are primarily intended to achieve the purpose of fair investigation while ensuring that no member of the society or informant or a victim is put to any inconvenience or harassment because of inaction or delayed action on the part of the Officer in charge of the Police Station.
The Law relating to other Countries like Sweeden, United Kingdom and United States of America.
82. The Code of Criminal Procedure and Indian Penal Code control the basic investigation and inquiry or trial of any criminal offence in India. It is in the administration of criminal justice, the prosecution plays a very significant role. In relation to investigation and prosecution of criminal charges, the role of prosecutor is limited to the proceedings in a trial before the Court of Competent Jurisdiction. In the statutes and the practice adopted under certain other systems particularly like U.K., U.S.A. and Sweden, etc., the Public Prosecutors plays a role of greatest significance and to a large extent they control even investigation, and particularly process of filing of a charge sheet before the competent Court. Preliminary inquiry, pre-registration of a FIR or recording of a substantive report, is not entirely unknown under the scheme of criminal investigation even in other parts of the world. The laws, in United Kingdom, which are of some relevance, can be referred at this juncture. The Police and Criminal Evidence Act, 1984 deals with the powers of police and the investigating agency in relation to search, seizure, arrest, detention and various other matters relating to collection of evidence and even exclusion of unfair evidence and Criminal Justice and Public Order Act, 1994 and Criminal Justice and Public Order Act, 1994 explain the powers of police and the investigating agency in relation to search, seizure, arrest, detention and various other matters relating to collection of evidence and even exclusion of unfair evidence. The former Act mainly deals with the investigation and powers of the Investigating Officer while the latter deals with the procedure adopted in Court, Imputations on character and Course of Justice, Pre-
charge consultation between the Investigators and duty of Prosecutors. (Criminal Justice and Public Order Act 1994 – 1994 Chapter 33 – http://www.opsi.gov.uk/) Guidelines in accordance with the very law in relation to
83. making a report read as under:-
“How to make a Report –
The victim can report a crime to the police by phoning the police station, going into the local police station, or by phoning 999. It is also possible to report a crime online at http://www.police.uk. A friend, relative or witness may also make a complaint on behalf of the victim. The victim will need to give the police full details and information about what happened. However, the victim’s complaint may not go any further if the police do not believe that they have enough information to proceed.
Giving Statement –
If the police have reasonable grounds to believe that an offence has been committed they will need to take a formal statement from the victim.
The victim will be required to attend the police station and sit in an interview room with at least one police officer and give her account of what happened. In some circumstances the police can attend her home and take a statement from her. With certain types of cases, such as sexual offences, the police may need to ask the victim intimate questions about the offence committed against her. She will also then be asked to check and sign her statement. This statement will be the basis of the complaint against the accused.
Some police stations have special facilities for cases involving sexual violence, such as a rape suite, specially trained police officers and rape victim chaperones. These should be more informal surroundings and the police involved should have experience of dealing with these types of cases.
What will happen Next –
Once a formal statement has been made the police will begin to investigate the offence.”
84. In Sweden, the police often lead the criminal investigation and once the police officers have reached the stage at which someone can be reasonably suspected of having committed the offence, a prosecutor takes over the preliminary investigation work. In Stockholm, once a crime has come to the attention of the police, a preliminary investigation is initiated. The object is to find out who can be suspected of the crime and whether or not there is sufficient evidence to initiate an action. The procedure for reporting investigation and its presentation before the Court is well explained.
85. All reports of incidents, whether from victims, witnesses or third parties and whether crime related or not, will result in the registration of an incident report by the police. Following the initial registration, an incident will be recorded as a crime (notifiable offence) if, on the balance of probabilities, the circumstances amount to a crime as defined by law and there is no credible evidence to the contrary. Once recorded, a crime would remain recorded unless there was additional verifiable information to disprove that a crime had occurred. ( 25302 Procedure – Investigation of Volume Crime –
http://www.hampshire.polio.uk/NR)
86. The structure of criminal investigations can be either reactive, where the police respond to a crime that has already occurred, or proactive, where the investigation may go on before and during the commission of the offence. The reactive criminal investigation process can be organized into several stages. The first stage is initial discovery and response. Of course, before the criminal investigation process can begin, the police must discover that a crime occurred or the victim (or witness) must realize that a crime occurred and notify the police. The second stage is the initial investigation and it follows in different subsequent stages. (Law Library – American Law & Legal Information – “http://law.jrank.org/pages/1655/Police-
Criminal-Investigations-Structure criminal -investigations.html”> Police: )
87. The above references suggest that reporting a matter to the police by itself may not amount to recording of a formal statement.
The police officers need to believe that they have enough information to proceed with the commission of a crime involved. There is sufficient scope provided in law for the police officer investigating the offence to satisfy himself before recording a formal statement, which in turn commences the police investigation of the offence. Some element of discretion, of course, which is required to be exercised fairly and in accordance with law, admits our procedure. We have already noticed that in order to register a FIR in accordance with the provisions of Section 154 of the Code of Criminal Procedure, the only condition precedent is that the information should relate to commission of a cognizable offence. To proceed with an investigation further in terms of Section 157, the information received by the police officer in charge of a police station should have reason to suspect the commission of offence, which he is empowered to investigate under Section 156 of the Code of Criminal Procedure.
There appears to be some substance in the submissions of the respondents that the officer in charge of a police station gets jurisdiction to investigate only upon information relating to commission of a cognizable offence. The possibility of an officer examining the matter and assuring himself of suspecting or commission of a cognizable offence restricted inquiry in some extra ordinary situations cannot absolutely be ruled out. The Scheme of Criminal Investigation, as referred above, is that the Police officer in charge of a police station must register the case without delay and in fact instantaneously. The need to take recourse to exceptional situation has to be very rare and that too subject to the specified limitations.
Law of Precedent
88. The learned Counsel appearing for the petitioners made an attempt to convince us that the judgments of the Supreme Court permitting a preliminary inquiry pre-registration of an FIR are the judgments in their own facts and cannot be applied to create precedent to the cases in hand. According to him, the judgments taking the contrary view of the Supreme Court and relied upon by him can be adopted by this Court as a correct principle of law and thus should be followed. He placed reliance upon the judgment in the case of Amarnath Omprakash vs State of Punjab, (1985)1 SCC 345 and Sangam Tape Co. vs Hans Raj, (2005) 4 SCC 331. However, while describing the above submissions without any basis on behalf of the State it was contended that the views of the Larger Benches of the Supreme Court would be binding as they have enunciated a principle of law which has subsequently been followed even in the latest judgment of the Supreme Court in Rajendra Singh’s case (supra), the same principle has been adopted and we should follow that principle alone.
89. In relation to Law of Precedent, it is a settled principle that a judgment would be applicable as precedent to the subsequent case only where ratio decidendi is squarely applicable on facts to a subsequent case. A Division Bench of Punjab High Court in the case of Rohtash vs State of Haryana and others, Civil Writ Petition No.2936 of 2002, decided on 7th March 2002 placed in somewhat similar situation, held as under:-
“… The obligation upon the court to follow the precedent law is subject to well accepted limitation.
These limitations play an effective role for helping the court to provide sound reasoning, wherever there are divergent view taken by equi-benches of the highest court of land. One pertinent principle, as enunciated by the Hon’b le Apex Court is that the judgment pronounced by a later bench should normally hold the field and particularly when the judgment of the later bench is a reasoned one and applies to the facts of the subsequent cases. The Hon’ ble Supreme Court in this case held as under :-
“…. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned;
deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement …… ……….. ……….
We are indeed sorry to note the attitude of the tribunal in this case which after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the later Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and the parties to this case have been put to considerable hardship……”
The Hon’ ble Apex Court further observed that a caution need to be taken while applying the principle of judicial precedents as decision of the court and its observations must be read in context in which they appear. In the judgment discussion is made to explain and not to define. In this regard reference can be made to the case of Haryana Financial CorporationCorporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies. & Anr. v. M/s Jagdamba Oil Mills & Anr. J.T. 2002 (1)
484.”
90. A Full Bench of this Court in the case of M/s Emkay Exports vs Madhusudan Shrikrishna, Appeal No.370 of 2007 decided on 26th June 2008, held as under : –
“6. The concept of precedent has attained important role in administration of justice in the modern times.
The case before the Court should be decided in accordance with law and the doctrines. The mind of the Court should be clearly reflecting on the material in issue with regard to the facts of the case. The reason and spirit of case make law and not the letter of a particular precedent. Halsbury’ s “The Laws of EnglandEngland In England, the Parliament was originally an advisory body summoned to consult with the monarch, and the courts exercised delegated royal powers, as “lions beneath the throne”.”, explained the word “ratio decidendi” as “It may be laid down as a general rule that that part alone of a decision by a Court of Law is binding upon Courts of coordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi.” It is by the choice of material facts that the Court create law. The law so created would be a good precedent for similar subsequent cases unless it falls within the exceptions hereinafter indicated.
7. The doctrine of precedent relates to following of previous decisions within its limitations. It introduces the concept of finality and adherence to the previous decisions and while attaining it, it creates consistency in application of law. The later judgment should be similar to the earlier judgment, which on material facts are the same. Finding ratio decidendi is not a mechanical process but an art which one gradually acquires through practice. What is really involved in finding the ratio decidendi of a case is the process of abstraction. Ratio decidendi is a term used in contrast to obiter dictum which is not necessarily binding in law.
According to Sir John Salmond, “a precedent is a judicial decision, which contains in itself a principle. The only principle which forms its authoritative element is often termed the `ratio decidendi’ . The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large”. According to Austin, the general reasons or principles of judicial decision abstracted from peculiarities of the case are commonly styled by writers on jurisprudence as `ratio decidendi’ .
8. Amongst the principles of law governing the binding value of judgments, doctrine of precedent is not only a well accepted principle but is one of the most pertinent facets of judicial interpretation. A ruling of Bench of higher court is considered to be binding on the lower courts and the courts having a smaller Bench structure. Earlier judgments are even taken to be binding on subsequent equi Bench unless and until reasons compelling for taking a divergent view are stated. To apply this principle, the court must examine by process of appropriate reasoning as to the applicability of the precedent cited before the court or even which of the views expressed by a higher court or even a larger Bench or even a Bench of equi strength is more aptly applicable to the facts and circumstances of the case in hand. The essence of law of precedent is its applicability on the basis of ratio decidendi. The importance and significance of adherence to law of precedent was emphasized by the Supreme Court in the case of S.I. Rooplal and another v. Lt. Governor through Chief Secretary, Delhi and others, A.I.R. 2000 SC 594.
91. Where there are conflicting or divergent views, the Court has freedom to pick up any view which applies to the facts of the case which it has dealt with. It will be useful to refer to a dictum stated by a Division Bench of this Court in the case of Mansing Surajsingh Padvi vs The State of Maharashtra, 1968 Bom. L.R. 654, where the Court not only discussed in detail the Law of Precedent but even outlined the rudiment which will be applicable for following law of precedent in the event of conflicting views. The Court observed :
”
We do not find it possible to accept this argument. The ratio of Jayvantisinghji’ s case must be deduced on a consideration of the judgments of those Judges who favoured the final decision of the Court, i.e. Sinha C.J. And Das and Ayyangar JJ. In Salmond’ s Jurisprudence, 12th ed. the learned author has observed (p. 183) :
“Where there are several different judgments, as in a case on appeal, the ratio must be ascertained from the judgments of those in favour of the final decision”.
….. …… ……
“….. To say that such an express decision on a point of law has no binding authority amounts to an assertion that a point of law decided by a Court ceases to be a binding precedent if it is shown that a particular argument was not considered in deciding the point. An assertion to that effect is clearly wrong. In Somavanti v. State of Punjab, Mudholkar J. delivering the judgment of the majority of the Supreme Court said (p.
794) :
“…. The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.”
….. ….. …..
“…. It is well established that when a case is decided on two grounds, both the grounds constitute the ratio of the case. We are thus unable to reconcile the ratios of the two cases of the Supreme Court and are faced with the unhappy task of choosing between them. The duty of a lower Court in such an eventuality has been thus stated in Salmond on Jurisprudence, 12th ed., page 153:
“Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be.”
92. In the case of Union of India v. K.S. Subramanian, (1976) 3 SCC 677, the Supreme Court held as under : –
“12. We do not think that the difficulty before the High Court could be resolved by it by following what it considered to be the view of a Division Bench of this Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that, in each of the cases cited before the High Court, observations of this Court occur in a context different from that of the case before us. But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view.”
93. Similar view was expressed in the case of State of U.P. vs Ramchandra, (1976) 4 SCC 52. Division Bench of this Court in Rajendra Mansukhlal vs Commissioner of Police Greater Bombay, 1988 Mh.L. J. 1988 and Full Bench of this Court in Kamaleshkumar Patel vs Union of India, 1994 Mh.L. J. 1699, have taken somewhat similar view.
Conclusion And Discussions On MeritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process.
94. Keeping in view the above settled cannons of applicability of Law of Precedent, we have made a humble attempt to reconcile the different views expressed and carved out a balanced and a practical view which would achieve the object of fair investigation while adhering to principles of Criminal Jurisprudence and without compromising powers of the Investigating Officer as prescribed under the Code but fully securing the interest of a victim and a complainant.
The Larger Benches of the Supreme Court while interpreting the provisions of Section 154 accepted the concept of preliminary inquiry pre-registration, of course, within a very limited scope and for a definite purpose. This is to be adopted in rare and exceptional cases.
The absolute rule will be wherever the information in relation to commission of a cognizable offence is disclosed, the same ought to be registered immediately. In the case of Jacob Mathews (supra), the findings and conclusions are clear and unambiguous. Of course they are meant for class of persons i.e. Medical Practitioners but it is founded on a construction and interpretation of provision of Section 154 which do not change with the class of persons. This case may not entirely support its applicability to all class of cases but certainly is indicative of acceptance of concept of preliminary inquiry pre-
registration of FIR. Such a view was even stated earlier with clearer dictum in the case of Sevi vs State of Tamil Nadu, 1981 Suppl. SCC 43, where the Court held as under: –
“3. One of the disturbing features of the case is the strange conduct of PW 15 the Sub-Inspector of Police. According to him he was told by PW 10 on the telephone that there was some rioting at Kottaiyur and that some persons were stabbed. He made an entry in the general diary and proceeded to Kottaiyur taking with him the FIR book, the hospital memo book etc. This was indeed very extraordinary conduct on the part of the Sub-Inspector of Police. If he was not satisfied with the information given by PW 10 that any cognizable offence had been committed he was quite right in making an entry in the general diary and proceeding to the village to verify the information without registering any FIR. But, we have yet not come across any case where an officer in-charge of a police station has carried with him the FIR book. The first information report book is supposed to be at the Police Station House all the time. If the Sub-Inspector is not satisfied on the information received by him that a cognizable offence has been committed and wants to verify the information his duty is to make an entry in the general diary, proceed to the village and take a complaint at the village from someone who is in a position to give a report about the commission of a cognizable offence. Thereafter, the ordinary procedure is to send the report to the police station.”
The bare reading of this view, in light of the judgment of the Supreme Court pronounced by the larger Benches, fully support the view that we have taken.
95. By following the view of the larger Bench in Bhagwant Kishor Joshi’s case (supra) as well as following latest view of the case (supra), we are not in Supreme court in Rajendra Singh Katoch’s any way suggesting the correctness or otherwise of the other view. In our humble opinion, the views of the larger Bench and the latest Bench can more appropriately be followed by this Court.
96. The analytical examination and interpretation of the relevant provisions of law seen in light of the judgments of the larger Benches as well as latest judicial dictum expressed by the Supreme Court’s smaller Benches, does in definite terms indicate and support the view that there is no prohibition in law for a police officer in charge of a police station to make a preliminary inquiry pre-registration of FIR. Though obligation on the part of the police officer to record/register information in regard to cognizable offence instantaneously is absolute, still there is an exception, of course, a very rare one. In those extra ordinary cases which will fall in this exception, the investigating officer is expected to act fairly, objectively and with unequivocal intention and commitment to uphold the rule of law for maintaining norms of administration of criminal justice. The officer is expected to act without undue delay and without causing prejudice to any of the parties affected in that process.
97. The concept of pre-registration inquiry is not unknown to law. Even the systems of other countries suggest that such an approach is not opposed to settled canons of criminal jurisprudence.
Undoubtedly, a communi observantia non est recedendum is the maxim controlling the provisions of Section 154 of the Criminal Procedure Code. Any how, we are not concerned with the factual matrix of the cases referred as they would have to be dealt with by the referring Bench in accordance with law, but without any hesitation we notice that in the case of Vimal Appaso Lohar, Writ Petition No.2031 of 2007, where alleged accused in another case died in police custody and non registration of the FIR regarding custodial death does not stand to any plausible reason. Such kinds of cases by any stretch of law or even imagination would not fall within the limited exception stated by us.
98. The purpose of preliminary inquiry pre-registration is to avoid absurd results, avoid undue harassment to any person at the behest of unscrupulous complainant and/or where the information given patently does not disclose a cognizable offence and necessitates some kind of inquiry to finally bring the alleged occurrence within or outside the definition of a cognizable offence as that is sine qua non for registering a case and putting into motion the police investigating machinery. Patent falsity may again be a ground for providing time for the complainant as well as the officer concerned to act in accordance with law without delay. A patently false information or an information leading to absurd results has twin consequences. It may expose the informant to penal action in accordance with law in the event of giving a false information. The other being that on such information the entire investigation machinery is unnecessarily put to motion which in terms of law has to be taken to its logical end. The Supreme Court in Bhagwant K Joshi’ s case (supra) said that :
“This graphic description of the stages; is only a restatement of the principle that a vague information or as irresponsible rumour would not in itself constitute information within the meaning of S. 154 of the Code or the basis for an investigation under S.157 thereof.”
The information thus has to be in relation to commission of a cognizable offence and not an irresponsible information or an information which in law cannot form the basis for setting the requisite investigation mechanism into action. Even in all these cases, the officer in charge of a police station shall have to and without exception make an entry in the daily diary register/station diary/roznamachar as well as record the action taken in furtherance thereto. After some time and in our opinion not exceeding two days, the investigating officer either should register regular case by registration of a FIR or follow the other permissible course in terms of the Code of Criminal Procedure. The purpose of every investigation in relation to a commission of crime or even suspicion in that investigation has to be just, fair and expeditious. The purpose of an investigation and/or any inquiry for that matter is to attain the truth.
The interpretation of law so given necessarily accept the maxim ut res valeat potius pereat. Thus, an approach which will help to further all the object of law would be in the public interest and would avoid abuse of the process adopted in relation to a procedural law.
Arbitrary will or even a bit of discretion neither vests nor can ever be intended to vest in a police officer while exercising his power and authority under the provisions of Sections 154 to 157 of the Code.
Absolute rigidity may not give desired results as ultimately fair play could be the sufferer. Reference can aptly be made to the observations of Sir James Macintosh, a philosopher as under :-
“There is not, in my opinion, in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence. Where we may contemplate the cautious and unwearied exertions of wise men through a long course of ages, withdrawing every case as it arises from the dangerous power of discretion and subjecting it to inflexible rule, extending the dominion of justice and reason, and gradually contacting within the narrowest possible limits, the domain of brutal force and arbitrary will.”
99. The Court has wide powers in terms of Section 482 of the Code. In exercise of its inherent jurisdiction, the Court has passed orders quashing FIRs, over-seeing the investigation with an intention to ensure that interest of justice does not suffer. This inherent powers of the Court in relation to quashing of a FIR have categorically spelt out the ground like where the allegations in the report or the complaint taken on its face value and accepted in their entirity do not constitute the offence alleged. (See Abasaheb Yadav Honmane vs The State of Maharashtra and another, 2008 (2) Mh. L. J. 856). Similarly it is expected of an officer in charge of a police station in relation to the information received by him to examine that a cognizable offence had been committed or is suspected to have been committed. The Court will have to keep in mind that the police has a dual function and duties to discharge. Prevention of crime is one of the most important facets of the police force, while on the other hand it is to investigate crimes committed. It appears to us that the scheme of the Code does provide some, but very limited element of discretion to the investigating officer which has to be based upon appropriate reasons, which has to be exercised fairly and in fact judiciously in the larger public interest and in compliance with the principles of criminal jurisprudence.
100. The Order of Reference to a larger Bench specifically refers to Clauses (a) and (b) of Paragraph 57 of the judgment of the ig s case (supra). Different Division Bench of this Court in Shyam Sundar’ questions were discussed and diverse directions were issued under Paragraph 57 of the judgment with which we are really not concerned stricto senso. The referring Bench pin-pointed the direction related to registration of FIR. Thus, in other words, the extent of liberty to the officer in charge of a police station in the matter of registration of FIR is the core issue before us. The Division Bench in Shyam Sundar’ s case (supra) felt that there was some liberty. While the referring Bench noticed the judgment of the Supreme Court in Prakash Singh Badal’ s case (supra) and found that the view of the Bench in Shyam Sundar’s case (supra) required reconsideration and therefore referred the matter to a larger Bench. We have attempted to deal with this core issue microscopically in light of the judgment of larger and latest Benches of the Supreme Court of India. The close study of the various judgments of the Courts, in our opinion, does not bring the respective views within the ambit of diametrically conflicting views.
After considering the ratio decidendi and on conjoint reading, one case safely see the fine distinction of `absolute duty’ in law on one hand and `no prohibition’ in law on the other. The judgments of the Court which have taken the view that there is no option with the police officer but to register a case suggestively imply as if the officer in law has no other power. But none of the judgments have in unambiguous language stated that the law prohibits in all situations preliminary inquiry pre-registration of FIR. But the Legislature has conveyed without ambiguity an absolute obligation on the part of the officer in charge of a police station to register the information. The Legislature has by no specific language prohibited, in exceptional and rare cases, instantaneous preliminary inquiry strictly in accordance with the prescribed procedure. This aspect of law certainly needs some clarification which we have attempted to provide. Non-performance of such duty is not permissible in law but in the event of default, the complainant has been provided with remedies. Making provisions for remedies certainly does not indicate or can be an excuse for any kind of non-performance of duty. The obligation in terms of Section 154 is specific and unambiguous.
101. The balanced and practical view in law necessarily is neither to amplify jurisdiction or power nor to curtail it unnecessarily.
The law commands a person holding a public office to discharge his duties in accordance with the law and without delay. In terms of the provisions of the Code of Criminal Procedure, police officer in charge of a police station cannot avoid the responsibility to record information as contemplated by the provisions of Section 154 read with the Police Manual and the Standing Orders issued by the State of Maharashtra.
Analysis of the above referred judicial decisions thus persuade us to s case (supra) does not state hold that the judgment in Shyam Sundar’ the entire law correctly. The statement of law spelt out in paragraph 57(b) needs to be clarified to bring it in line with the enunciated law.
Intrinsic command of law requires an officer in charge of a police station to record the FIR instantaneously. Further to bring this principle in harmony with the ground realities, it can safely be stated that in exceptional and rare cases, the concerned police officer could penultimately defer instantaneous recording of FIR in the prescribed register (Form No.P.M. 37e) but only and only after recording the information received in the Daily Diary Register while also mentioning reasons for adopting such a course and then to proceed to make preliminary inquiry. Such preliminary inquiry needs to be concluded in the shortest possible time and which, in our opinion, should not exceed two days then the officer should record the FIR as prescribed in law without fail and/or to adopt any course of action as permissible in law. This would satisfy the requirements of achieving legislative object as well as would be suiting the ground reality by adopting a more practical approach. As it may not be possible for the Court to accept ideologue view devoid of any flexibility in exceptional or rare cases. Having deliberated at some length on various aspects of the legal controversies raised in the present reference, in our considered view the following principles can be culled out as correct exposition of law :
(a) The expression “shall” appearing in Section 154 of the Code of Criminal Procedure is mandatory.
The Section places an `absolute duty’ on the part of the `officer in charge of a police station’ to record information and place substance thereof in the prescribed book, where the information supplied or brought to his notice shows commission of a cognizable offence.
(b) As the law does not specifically prohibit conducting of a limited preliminary inquiry, pre-
registration of FIR in exceptional and rare cases by the officer in charge of a police station, he may penultimately thus enter upon a preliminary inquiry in relation to information supplied of commission of a cognizable offence but only and only upon making due entry in the Daily Diary/Station Diary/ Roznamachar instantaneously with reasons as well as the need for adopting such a course of action. Such inquiry should be completed expeditiously and in any case not later than two days. Thereafter, the FIR should be recorded in the prescribed register and/or the officer should take any other recourse permissible to him strictly in accordance with the provisions of the Code of Criminal Procedure under which he is empowered to investigate. Such cases can be illustrated by giving an example i.e. when the information received in regard to commission of a cognizable offence would patently cause absurd results or report of happening of events, authenticity of which ex facie is extremely doubtful.
(c) The law inescapably requires the police officer to register the information (FIR) received by him in relation to commission of a cognizable offence.
Under the Scheme of the Code, no choice is vested in the police officer between recording or not recording the information received. The concerned officer would aptly take recourse to clause (a) as a normal rule while could adopt the course of action as stated in clause (b) above as an exceptional and rare case.
102. Having answered the questions of law, we direct the Writ Petitions to be listed before the appropriate Bench for disposal in accordance with law.
FULL DESCRIPTION OF THE PARTIES
ALONG WITH
CRIMINAL APPLICATION NO. 219 OF 2007
IN
WRIT PETITION NO. 982 OF 2007
AND
WRIT PETITION NO. 2031 OF 2007
CRIMINAL MISC. APPLICATION NO. 271 OF 2007
IN
WRIT PETITION NO. 982 OF 2007
Sandeep Rammilan Shukla
an Indian inhabitant of Mumbai )
Aged about 28 years, Occupation : Business
residing at 197/7, Kamal Kunj, Kingcircle
CHSL Ltd., R.G. Shukla Marg, Sion East Mumbai 400 022 ).. PETITIONER
VERSUS
1) The State of Maharashtra through the Secretary )
Home Department, Mantralaya Mumbai. )
2) The Director
Anti Corruption Bureau For Greater Mumbai having office on the first floor
of Madhu Industrial Estate, Pandurang Budhkar Marg, Lower Parel
Mumbai 400 013. )
3) The Commissioner of Police
Police Headquarters, Crawford Market
Mumbai 400 002 )
4) The Senior Inspector of Anti Extortion Cell, Crime Branch, Mumbai.
5) The Senior Inspector of Police Nagpada Police Station, Nagpada
Mumbai 400 009 )
6) Dhananjay Kamlakar Deputy Commissioner of Police Crime Branch, Mumbai )
7) Anil Mahabole Police Inspector through DCP Crime Branch, Office of the )
Commissioner of Police, Mumbai. )
8) Rajendra Nikam Sub-Inspector of Police through DCP, Crime Branch ,Office of the Commissioner of Police ,Mumbai. )
9) The Director Central Bureau of Investigation CGO Complex, Lodhi Road, New Delhi ).. RESPONDENTS
WITH
CRIMINAL APPLICATION NO. 219 OF 2007
IN
WRIT PETITION NO.982 OF 2007
Chandresh Chimanlal Shah Aged about 40 years, Occupation Business )
Residing at 304, Pleasant Park Society )
65, Peddar Road, Mumbai 400 026 ).. APPLICANT
VERSUS
1) Sandeep Rammilan Shukla
an Indian inhabitant of Mumbai
aged about 28 years, Occupation )
Business, residing at 197/7, Kamal Kunj )
King Circle CHS Ltd., R.G Shukla Marg )
Sion (East), Mumbai 400 022 )
2) The State of Maharashtra through the Secretary
Home Department, Mantralaya
Mumbai 400 032 .. RESPONDENTS
WITH
WRIT PETITION NO. 2031 OF 2007
Smt. Vimal Appaso Lohar )
Age 36 years, Occupation : Household )
R/o Mankapur, Tal. Chikkodi )
District Belgaum ).. PETITIONER
VERSUS
1) Chief Secretary of Home Ministry )
of State of Maharashtra Mantralaya, Mumbai. )
2) Inspector General of Police of State of Maharashtra Mumbai. )
3) District Superintendent of Police )
Kolhapur, Bavada Road Kolhapur )
District : Kolhapur. )
4) Asst. Police Inspector Kurundwad Police Station, Kurundwad Tal. Shirol, Dist. Kolhapur. ).. RESPONDENTS
Mr S M A Kazami, Senior Council, Mr Zuber Ahmad and
Mr B P Pandey for the Petitioner in W.P. No.982 of 2007.
Mr S R Borulkar, Public Procecutor a/w Mr A R Patil,
Additional Public Prosecutor, for the State.
Mr Kiran C Shirguppe for the Petitioner in W.P. No.2031 of 2007.
JUDGMENT RESERVED ON : 10TH
SEPTEMBER2008
JUDGMENT PRONOUNCED ON : 8TH OCTOBER 2008
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