1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL MISC. APPLICATION NO. 271 OF 2007
IN
WRIT PETITION NO. 982 OF 2007
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. )
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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 )
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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
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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.
CORAM : SWATANTER KUMAR, C.J. AND
S.J. VAZIFDAR & A.A. SAYED, JJ
JUDGMENT RESERVED ON : 10TH
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SEPTEMBER2008
JUDGMENT PRONOUNCED ON : 8TH OCTOBER 2008
JUDGMENT (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 jurisprudence governing the law of crime 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
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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 India 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
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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
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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
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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 – https://repositories.cdlib.org/
vsmex/ prajm/paras.)
Order of Reference
5. The reasons in support of the judgment is the soul of
judicial decision. The Division Bench of this court, while dealing with
the Writ Petition No.982 of 2007 (Sandeep Rammilan Shukla v. The
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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 ofthe 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,
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11which have also been brought to our notice. We
prima-facie feel that the view of the Supreme Court isthat in terms of Section 154(1) Cr.P. C., the police
officer is bound to register a case when he receivesinformation 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. Thatstage 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 andthe 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 theCode. If the information discloses a
cognizable offence, FIR must beregistered.
(b) If the information received does
not disclose a cognizable offence butindicates 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
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12a Full Bench of this High Court. Therefore, we refer
to the Full Bench the question whether in the light ofthe judgment of the Supreme Court a police officer is
bound to register a case when an information is givento 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 ofMaharashtra 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
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13have 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 agreement 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.
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14Shri 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
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15FIR 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 cell 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
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16judicial 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
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17January, 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
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18custodial 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
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19Code 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 orunder his direction, and be read over to the informant,
and every such information, whether given in writing orreduced 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 thisbehalf.
(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
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20the information referred to in sub-section (1) may send
the substance of such information, in writing and bypost, to the Superintendent of Police concerned who, if
satisfied that such information discloses thecommission 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 officershall 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
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21reduced 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
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22by 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
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23for collection of evidence 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 todiscovery 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;
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2416. 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 beencommitted. The expression `investigation’ has been
defined in Section 2(h) of Criminal Procedure Code. Itis an inclusive definition. No doubt it will not strictly fall
under the definition of `investigation’ in so far as theinclusive 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
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25officer 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
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26cognizance 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
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27follows in a trial before the Court or Tribunal pursuant
to the filing of the report, it cannot be said that at thatstage rule of audi alteram partem superimposes an
obligation to issue a prior notice and hear the accusedwhich 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 investigationby 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), thisCourt 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 18and 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 theproceedings 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
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28reasonable suspicion of commission of any offence.
Section 157(1) requires an officer in charge of a policestation 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
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29Constitution 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
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3021. 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) bymatching the colour of one case against the colour of
another. To decide therefore on which side of the linea 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
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31meaning 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
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32rule 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
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33provisions 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 essentialto 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 Legislatureand not upon the language in which the intent is
clothed. The meaning and intention of the Legislaturemust 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 itthe one way or the other.”
25. Thus the word `shall’
would normally be mandatory whilethe word `may’
would be directory. Consequences of non compliancewould also be a relevant consideration. The word `shall’ raises a
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34presumption 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’s577, p.584 (HL.). Reference : Justice G.P. Singh on Principles of
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35Statutory 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
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36Courts 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).
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37Reverting 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
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38charge 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
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39right 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
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40the 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 receivedor 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
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41considerable 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
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42to 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’
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43specifically 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
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44specifically 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.
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45Thus, 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
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46dealt 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
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4737. 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
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48FIR 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 isconsidered 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
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49in 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
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50appearing 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
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51investigation 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
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52and 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 ofthe facts and circumstances of the case, (3)
Discovery and arrest of the suspectedoffender, (4) Collection of evidence relating to
the commission of the offence which mayconsist 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 orseizure of things considered necessary for the
investigation and to be produced at the trial,and (5) formation of the opinion as to whether
on the material collected there is a case to
place the accused before a Magistrate for trial
and if so taking the necessary steps for thesame 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
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53offence. The Investigating Officer is, for this purpose,
entitled to question persons who, in his opinion, areable to throw light on the offence which has been
committed and is likewise entitled to question thesuspect 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 articlesconnected 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 offenceto the offender the essential part of the duties of an
Investigating Officer in this connection is, apart fromarresting 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
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54
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
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55
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.,
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56
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::: Downloaded on – 09/06/2013 13:57:19 :::
57be guilty of a crime of Code of Criminal Procedure
aims at securing a conviction if it can be had by theuse of utmost fairness on the part of the officers
investigating into the crime before the lodging of acharge-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
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58
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
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59
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::: Downloaded on – 09/06/2013 13:57:19 :::
60it is open to a police officer to make
preliminary enquiries before registering anoffence 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
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61
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 medicine
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 andissued by the Government of India and/or the State
Government in consultation with the Medical Councilof 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 aningredient. 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 tosupport 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::: Downloaded on – 09/06/2013 13:57:19 :::
62preferably from a doctor in government service,
qualified in that branch of medical practice who cannormally be expected to give an impartial and
unbiased opinion applying the Bolam test to the factscollected 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 necessaryfor 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 unlessarrested, 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
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63
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 thecognizable offence, a First Information Report should
be lodged, to carry out a preliminary inquiry evenunder 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 orotherwise 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 theallegation 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::: Downloaded on – 09/06/2013 13:57:19 :::
64made 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 toinitiate 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
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65
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.
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66
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
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67
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
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68
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 requiredby 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
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69cognizable offence but indicates the necessity
for further inquiry, preliminary inquiry may beconducted 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
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70
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.
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71
(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
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72
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
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73
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 thelegal 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 andthat provision reads as follows:-
“Every information relating to the commission
of a cognizable offence, if given orally to an officer incharge 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 asaforesaid, shall be signed by the person giving it, and
the substance thereof shall be entered in a book to bekept 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
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74
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
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75
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
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76
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
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77
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 thefacts 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-affidavit filed by the respondent and submits
that pursuant to the aforesaid observation of the High
Court the complaint/representation has been::: Downloaded on – 09/06/2013 13:57:20 :::
78subsequently examined by the respondent and found
no genuine case was established. We are notconvinced by this submission because the sole
grievance of the appellant is that no case has beenregistered 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 thecontempt petition was pending and the appellant had
an alternative remedy. The ground of alternativeremedy or pending of the contempt petition would be
no substitute in law not to register a case when acitizen 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 nomore 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
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79
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 betreated as a first information report since the allegation
was vague inasmuch as it was not stated from whomthe sum of rupees one lakh was demanded and
accepted. Nor was it stated that such demand oracceptance 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 tosuspect 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
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80
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
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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: –
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82
“10. The mandate of Section 154 of the Code is
that at the stage of registration of a crime or a case onthe basis of the information disclosing a cognizable
offence, the police officer concerned cannot embarkupon 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 FIRon the basis of written complaint or otherwise
disclosing the offence said to have been committed bythe 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 disclosedin 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 offenceunder 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
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83
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
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84
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
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85
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
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86
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.
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87
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
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88
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
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89
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
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90
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
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91
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
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92
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 apolice-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::: Downloaded on – 09/06/2013 13:57:20 :::
93and, at the same time, he must either proceed in
person, or depute one of his subordinate officers toproceed, to the spot to investigate the facts and
circumstances of the case, and, if necessary, to takemeasures 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 aninvestigation 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 provisopermits the officer in charge of a police station not to
investigate the case if it appears to him that there is nosufficient 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 fullycomplying with the requirements of Sub-section (1)
and, in addition, in cases where he decided not toinvestigate 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,
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94
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
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95
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
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96
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
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97
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.
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98
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
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99
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
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100
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
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101
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.
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102
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
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103
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
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104
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
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105
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
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106
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
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107
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
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108
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
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109
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 channelreceived, 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 placeconcerned 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:-
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110
“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
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111
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 beregistered 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 1stSeptember 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 ormore offences per year. Other Police Stations should
have only one register. (I.G.’ s No. 26, dated 19thDecember 1946).
(4) Complaints referred to the Police for enquiry under
Section 156 or 202, Criminal Procedure Code shouldnot 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 1911and No. 7244, dated 19th December 1911).
(5) Cases enquired into under Section 174, Criminal
Procedure Code should be entered into Crime Register,
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112purpose. This portion should be further divided into two
parts i.e., for (a) accidental deaths and (b) otherunnatural 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 shouldbe 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 orother 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; theexplanations 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.
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113
…. ….. …..”
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
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114
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
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115
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
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116
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 – https://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 policestation, or by phoning 999. It is also possible to
report a crime online at www.police.uk. A friend,
relative or witness may also make a complaint on
behalf of the victim. The victim will need to give thepolice 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 –
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117
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 whathappened. 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 victimintimate questions about the offence committed
against her. She will also then be asked to checkand 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 victimchaperones. These should be more informal
surroundings and the police involved should haveexperience 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
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118
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 –
https://www.hampshire.polio.uk/NR)
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119
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 – “https://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
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120
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
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121
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
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122
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:-
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123
“… 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 fundamentalprinciple 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. ThisCourt 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 aCourt 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::: Downloaded on – 09/06/2013 13:57:22 :::
124earlier judgment of a coordinate Bench and
after noticing the judgment of this Court, hasstill thought it fit to proceed to take a view
totally contrary to the view taken in the earlierjudgment 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 inthis 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 ofjudicial precedents as decision of the court and its
observations must be read in context in which theyappear. 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 Corporation &
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
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125
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
England”, 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
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126
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
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127
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 bededuced 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 authorhas 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::: Downloaded on – 09/06/2013 13:57:22 :::
128v. 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 subsequentlyadvanced was actually decided.”
….. ….. …..
“…. It is well established that when a case is decided
on two grounds, both the grounds constitute the ratioof the case. We are thus unable to reconcile the ratios
of the two cases of the Supreme Court and are facedwith 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 thelatest 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 : –
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129
“12. We do not think that the difficulty before the High
Court could be resolved by it by following what itconsidered 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 thepoint 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 HighCourt acted correctly in skirting the views expressed
by larger benches of this Court in the manner in whichit had done this. The proper course for a High Court,
in such a case, is to try to find out and follow theopinions 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 oflaw declared by this Court. If, however, the High Court
was of opinion that the views expressed by largerbenches 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
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130
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 Merits
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
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131
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 andthat 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 partof 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
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132without registering any FIR. But, we have yet not come
across any case where an officer in-charge of a policestation has carried with him the FIR book. The first
information report book is supposed to be at the PoliceStation 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 thegeneral 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 procedureis 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
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133
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.
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134
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
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135
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
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136restatement of the principle that a vague information or
as irresponsible rumour would not in itself constituteinformation 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.
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137
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 wemay 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 andreason, and gradually contacting within the narrowest
possible limits, the domain of brutal force and arbitrary
will.”
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138
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
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139
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
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140
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
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141
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
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142
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
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143
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 partof 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
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144
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.
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145
(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.
CHIEF JUSTICE
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146
(S.J. VAZIFDAR, J.)
(A.A. SAYED, J.)
sng/Sep.08/res.js/crimisc271-07final.sxw
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