Supreme
Court of India
Lalita
Kumari vs Govt.Of U.P.& Ors. on 27 February, 2012
Author:
D Bhandari
Bench:
Dalveer Bhandari, T.S. Thakur, Dipak Misra
IN
THE SUPREME COURT OF INDIA
CRIMINAL
ORIGINAL JURISDICTION
WRIT
PETITION (CRIMINAL) NO.68 OF 2008
Lalita
Kumari ...Petitioner Versus
Government
of U.P. & Others ...Respondents WITH
CRIMINAL
APPEAL NO.1410 OF 2011
Samshudheen
...Appellant Versus
State,
Represented by Dy. Superintendent of Police Tamil Nadu ...Respondent
WITH
SLP
(CRIMINAL) NO.5200 OF 2009
Baldev
Singh Cheema ...Petitioner Versus
State
of Punjab & Others ...Respondents WITH
SLP
(CRIMINAL) NO.5986 OF 2010
Surjit
Singh & Another ...Petitioner Versus
State
of Punjab & Others ...Respondents AND
CONTEMPT
PETITION NO. ARISING OUT OF D.26722 of 2008 IN
WRIT
PETITION (CRIMINAL) NO.68 OF 2008
Daljit
Singh Grewal ...Petitioner Versus
Ramesh
Inder Singh ...Respondent J U D G M E N T
Dalveer
Bhandari, J.
1.
We propose to deal with the abovementioned writ petition, the
criminal appeals and the contempt petition by this judgment. The
question of law involved in these cases is identical, therefore, all
these cases are being dealt with by a common judgment. In order to
avoid repetition, only the facts of the writ petition of Lalita
Kumari's case are recapitulated.
2.
The petition has been filed before this Court under Article 32 of the
Constitution of India in the nature of habeas corpus to produce
Lalita Kumari, the minor daughter of Bhola Kamat.
3.
On 5.5.2008, Lalita Kumari, aged about six years, went out of her
house at 9 p.m. When she did not return for half an hour and Bhola
Kamat was not successful in tracing her, he filed a missing report at
the police station Loni, Ghaziabad, U.P.
4.
On 11.5.2008, respondent no.5 met Bhola Kamat and informed him that
his daughter has been kidnapped and kept under unlawful confinement
by the respondent nos.6 to 13. The respondent-police did not take any
action on his complaint. Aggrieved by the inaction of the local
police, Bhola Kamat made a representation on 3.6.2008 to the Senior
Superintendent of Police, Ghaziabad. On the directions of the
Superintendent of Police, Ghaziabad, the police station Loni,
Ghaziabad registered a First Information Report (F.I.R.) No.484 dated
6.6.2008 under Sections 363/366/506/120B IPC against the private
respondents.
5.
Even after registration of the FIR against the private respondents,
the police did not take any action to trace Lalita Kumari. According
to the allegation of Bhola Kamat, he was asked to pay money for
initiating investigation and to arrest the accused persons.
Ultimately, the petitioner filed this petition under Article 32 of
the Constitution before this Court.
6.
This Court on 14.7.2008 passed a comprehensive order expressing its
grave anguish on non-registration of the FIR even in a case of
cognizable offence. The Court also issued notices to all Chief
Secretaries of the States and Administrators of the Union
Territories. In response to the directions of the Court, various
States and the Union Territories have filed comprehensive affidavits.
7.
The short, but extremely important issue which arises in this
petition is whether under Section 154 of the Code of Criminal
Procedure Code, a police officer is bound to register an FIR when a
cognizable offence is made out or he has some latitude of conducting
some kind of preliminary enquiry before registering the FIR.
8.
Mr. S.B. Upadhyay, learned senior advocate appearing for the
petitioner has tried to explain the scheme of Section 154 Cr.P.C.
with the help of other provisions of the Act. According to him,
whenever information regarding cognizable offence is brought to the
notice of the SHO, he has no option but to register the First
Information Report.
9.
This Court also issued notice to the learned Attorney General for
India to assist the Court in this matter of general public
importance. Mr. Harish P Raval, the learned Additional Solicitor
General appeared before the Court and made comprehensive submissions.
He also filed written submissions which were settled by him and
re-settled by the learned Attorney General for India.
10.
Learned Additional Solicitor General submitted that the issue which
has been referred to this Court has been decided by a three-Judge
Bench of this Court in the case of Aleque
Padamsee and Others v. Union of India and Others (2007)
6 SCC 171. In this case, this Court while referring to the judgment
in the case of Ramesh
Kumari v. State (NCT of Delhi) and Others (2006)
2 SCC 677 in paragraph 2 of the judgment has observed as under:-
"Whenever
cognizable offence is disclosed the police officials are bound to
register the same and in case it is not done, directions to register
the same can be given."
11.
The State of Gujarat, the respondent in the above case, on the facts
thereof, contended that on a bare reading of a complaint lodged, it
appears that no offence was made and that whenever a complaint is
lodged, automatically and in a routine manner an FIR is not to be
registered. This Court after considering Chapter XII and more
particularly Sections 154 and 156 held (paragraphs 6 and 7) that
"whenever
any information is received by the police about the alleged
commission of offence which is a cognizable one, there is a duty to
register the FIR." There
could be no dispute on that score as observed by this Court. The
issue referred to in the reference has already been answered by the
Bench of three Judges. The judgment in Aleque Padamsee and Others
(supra) is not referred in the reference order. It is therefore
prayed that the present reference be answered accordingly.
12.
It was submitted on behalf of the Union of India that Section 154 (1)
provides that every information relating to the commission of a
cognizable offence if given orally, to an officer incharge of a
police station shall be reduced in writing by him or under his
directions. The provision is mandatory. The use of the word
"shall" by the legislation is indicative of the
statutory intent. In case such information is given in writing or is
reduced in writing on being given orally, it is required to be signed
by the persons giving it. It is further provided that the substance
of commission of a cognizable offence as given in writing or reduced
to writing "shall" be entered in a book to be kept
by such officer in such form as the State Government may prescribe in
this behalf. Sub-section (2) provides that a copy of such information
as recorded in sub-section (1) shall be given forthwith free of cost
to the informant.
- In light of the provisions contained in Section 154 (1) and the law laid by this Court on the subject, the following submissions were placed by the Union of India for consideration of this Court.
- a) The statutory intention is manifest on a bare reading of provisions of Section 154(1) to the effect that when an officer incharge of a police station to whom information relating to commission of cognizable offence has been disclosed, he has no discretion save and except to reduce the said information in writing by him or under his direction.
- b) Section 154(1) does not have ambiguity and is in clear terms.
c)
The
use of expression "shall" clearly manifest the
mandatory statutory intention.
d)
In
construing a statutory provision, the first and the foremost rule of
construction is the literal construction. It is submitted that all
that the Court has to see at the very outset is what does that
provision say. If the provision is unambiguous and if from that
provision, the legislative intent is clear, the Court need not call
into it the other rules on construction of statutes.
[Para 22 of Hiralal Rattanlal etc.etc. v. State of U.P. and Another
etc.etc. 1973(1) SCC 216]. This judgment is referred to and followed
in a recent decision of this Court in B.
Premanand and Others v. Mohan Koikal and Others (2011)
94 SCC 266 paras 8 and 9. It is submitted that the language employed
in Section 154 is the determinative factor of the legislative intent.
There is neither any defect nor any omission in words used by the
legislature. The legislative intent is clear. The language of Section
154(1), therefore, admits of no other construction. e) The use of
expression "shall" is indicative of the intention
of the legislature which has used a language of compulsive force.
There is nothing indicative of the contrary in the context indicating
a permissive interpretation of Section 154. It is submitted that the
said Section ought to be construed as preemptory. The words are
precise and unambiguous (Govindlal
Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra and
Others 1975
(2) SCC 482). It is submitted that it
is settled law that judgments of the courts are not to be construed
as statutes
[para 11 of three-Judge Bench decision of this court in the case of
M/s Amar Nath Om Prakash and others etc. v. State of Punjab and
Others (1985) 1 SCC 345]. The abovesaid decision is followed by a
judgment of this Court in the case of Hameed Joharan (dead) and
others v. Abdul Salam (dead) by Lrs. and Others (2001) 7 SCC 573.
f)
The provision of Section 154(1) read in light of statutory scheme do
not admit of conferring any discretion on the officer in charge of
the police station of embarking upon an preliminary enquiry prior to
registration of an FIR. A preliminary enquiry is a term which is
alien to the Code of Criminal Procedure, 1973 which talks of (i)
investigation (ii) inquiry and (iii) trial. These terms are definite
connotations having been defined under Section 2 of the Act.
g)
The concept of preliminary enquiry as contained in Chapter IX of the
CBI (Crime) Manual, first published in 1991 and thereafter updated on
15.7.2005 cannot be relied upon to import the concept of holding of
preliminary enquiry in the scheme of the Code of Criminal Procedure.
h) The interpretation of Section 154 cannot
be depended upon a Manual regulating the conduct of officers of an
organization, i.e., CBI. i) A reference to para 9.1. of
the said Manual would show that preliminary enquiry is contemplated
only when a complaint is received or information is available which
may after verification as enjoined in the said Manual indicates
serious misconduct on the part of the public servant but is not
adequate to justify registration of a regular case under provisions
of Section 154 Cr.P.C. Such preliminary inquiry as referred to in
para 9.1 of the CBI Manual as also to be registered after obtaining
approval of the competent authority. It is submitted that these
provisions cannot be imported into the statutory scheme of Section
154 so as to provide any discretion to a police officer in the matter
of registration of an FIR.
j)
The purpose of registration of an FIR are manifold -that is to say
i)
To reduce the substance of information disclosing commission of a
cognizable offence, if given orally, into writing
ii)
if given in writing to have it signed by the complainant
iii)
to maintain record of receipt of information as regards commission of
cognizable offences
iv)
to initiate investigation on receipt of information as regards
commission of cognizable offence
v)
to inform Magistrate forthwith of the factum of the information
received.
14.
Reference has also been made to the celebrated judgment of the Privy
Council in the case of Emperor v. Khwaza Nazim Ahmad AIR 1945 PC 18
in which it is held that for the receipt and recording of an
information, report is not a condition precedent to the setting in
motion of a criminal investigation. It is further held, that no
doubt, in the great majority of cases criminal prosecution are
undertaken as a result of the information received and recorded in
this way. (As provided in Sections 154 to 156 of the earlier Code).
It is further held that there is no reason why the police, if in
possession through their own knowledge or by means of credible though
informal intelligence which genuinely leads them to the belief that a
cognizable offence has been committed, should not of their own motion
undertake an investigation into the truth of the matters alleged. It
is further held that Section 157 of the Code when directing that a
police officer, who has a reason to suspect from information or
otherwise, that an offence which he is empowered to investigate under
Section 156 has been committed, he shall proceed to investigate the
facts and circumstances of the case. It is further held in the said
judgment that, in truth the provisions as to an information report
(commonly called a First Information Report) are enacted for other
reasons. Its object is to obtain early information of alleged
criminal activity, to record the circumstances before there is time
for them to be forgotten or embellished, and it has to be remembered
that the report can be put in evidence when the informant is
examined, if it is desired to do so. It is further held in the
said judgment that there is a statutory right on part of the police
to investigate the circumstances of an alleged cognizable crime
without requiring any authority from the judicial authorities.
15.
On behalf of the Union of India reference was made to the judgment of
this Court delivered inThe
State of Uttar Pradesh v. Bhagwant Kishore Joshi AIR 1964
SC 221 wherein it has been held vide para 8 that Section 154 of the
Code prescribed the mode of recording the information received orally
or in writing by an officer incharge of a police station in respect
of commission of a cognizable offence. Section 156 thereof authorizes
such an officer to investigate any cognizable offence prescribed
therein. Though,
ordinarily investigation is undertaken on information received by a
police officer, the receipt of information is not a condition
precedent for investigation.
16.
It is further held that Section 157 prescribes the procedure in the
matter of such an investigation which can be initiated either on
information or otherwise. It is also held that it is clear from the
said provision that an officer in charge of a police station can
start investigation either on information or otherwise. The judges in
the said judgment referred to a decision of this Court in the case of
H.N. Rishbud and Inder Singh v. The State of Delhi 1955 SCR (1) 1150
at pp.1157-58 that the graphic description of the stages is only a
restatement of the principle that a vague information or an
irresponsible rumour would not by itself constitute information
within the meaning of Section 154 of the Code or the basis of an
investigation under Section 157 thereof. The said case was in respect
of an offence alleged under Prevention of Corruption Act, 1947. The
said case was under the old Code which did not define the term
`investigation' (paragraph 18 of the concurring judgment of Justice
Mudholkar at page 226). It is also observed that the main object of
investigation mean to bring home the offence to the offender. The
essential part of the duty of an investigating officer in this
connection is, apart from arresting the offender, to collect all
material necessary for establishing the accusation
"against" the offender.
17.
The following observations in the concurring judgment of Bhagwant
Kishore Joshi (supra) were found in paragraph 18 : “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 witnesses but merely makes a
few discreet enquiries or looks at some documents without making any
notes, it is difficult to visualise how any possible harassment or
even embarrassment would result therefrom to the suspect or the
accused person.”
- In case of H.N. Rishbud (supra), in the case under the Prevention of Corruption Act, 1947, it is observed as under:-“Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.”
It
is further held :-
“Thus
investigation primarily consists in the ascertainment of the facts
and circumstances of the case. By definition, it includes "all
the proceedings under the Code for the collection of evidence
conducted by a police officer”.
It
is further held in the said judgment that : “Thus, under the Code
investigation consists generally of the following steps:(1)
Proceeding to the spot, (2) Ascertainment of the facts and
circumstances of the case, (3) Discovery and arrest of the suspected
offender, (4) Collection of evidence relating to the commission of
the offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their statements
into writing, if the officer thinks fit, (b) the search of places of
seizure 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 the same by the filing of a charge-sheet under section
173”.
19.
It was further submitted that this Court in the case of Damodar
v. State of Rajasthan reported
in 2004(12) SCC 336 referred to the observations of the judgment of
this Court rendered in case ofRamsinh
Bavaji Jadeja v. State of Gujarat 1994
(2) SCC 685 and observed that the question as to at what stage the
investigation commence has to be considered and examined on the facts
of each case especially when the information of alleged cognizable
offence has been given on telephone. The said case deals with
information received on telephone by an unknown person. In paragraph
10 it is observed thus “in order to constitute the FIR, the
information must reveal commission of act which is a cognizable
offence.”
20.
It is further observed in paragraph 11 in the case of Damodar (supra)
that in the context of the facts of the said case, that any
telephonic information about commission of a cognizable offence, if
any, irrespective of the nature and details of such information
cannot be treated as an FIR. It is further held that if the
telephonic message is cryptic in nature and the officer incharge
proceeds to the place of occurrence on the basis of that information
to find out the details of the nature of the offence, if any, then it
cannot be said that the information which had been received by him on
telephone shall be deemed to be an FIR.
21.
It is also observed that the object and purpose of giving such
telephonic message is not to lodge an FIR, but to make the officer
incharge of the police station reach the place of occurrence. It is
further held that if the information given on telephone is not
cryptic and on the basis of that information the officer incharge is
prima facie satisfied about commission of a cognizable offence and he
proceeds from the police station after recording such information, to
investigate such offence, then any statement made by any person in
respect of the said offence including the participants shall be
deemed to be statement made by a person to the police officer in the
course of investigation covered by Section 162 of the Code.
22.
This Court in the case of Binay
Kumar Singh v. The State of Bihar 1997(1)
SCC 283 observed as under:-
“.....It
is evidently a cryptic information and is hardly sufficient for
discerning the commission of any cognizable offence therefrom. Under
Section 154 of the Code the information must unmistakably relate to
the commission of a cognizable offence and it shall be reduced to
writing (if given orally) and shall be signed by its maker. The next
requirement is that the substance thereof shall be entered in a book
kept in the police station in such form as the State Government has
prescribed. First information report (FIR) has to be prepared and it
shall be forwarded to the magistrate who is empowered to take
cognizance of such offence upon such report. The officer in charge of
a police station is not obliged to prepare FIR on any nebulous
information received from somebody who does not disclose any
authentic knowledge about commission of the cognizable offence. It is
open to the officer-in-charge to collect more information containing
details about the occurrence, if available, so that he can consider
whether a cognizable offence has been committed warranting
investigation thereto.”
23.
It is submitted that in the said judgment what fell for consideration
of the Court was the conviction and sentence in respect of the
offence under Sections 302/149 of the IPC in respect of a murder
which took place in a Bihar village wherein lives of 13 people were
lost and 17 other were badly injured along with burning alive of
large number of mute cattle and many dwelling houses. It is also
submitted that the interpretation of Section 154 was not directly in
issue in the said judgment.
24.
Reliance is placed on a decision of this Court in the case of Madhu
Bala v. Suresh Kumar and Others reported
as 1997 (8) SCC 476 in the context of Sections 156(3) 173(2), 154 and
190(1) (a) and (b) and more particularly upon the following
paragraphs of the said judgment. The same read as under:-
“Coming
first to the relevant provisions of the Code, Section 2(d) defines
“complaint” to mean any allegation made orally or in writing to a
Magistrate, with a view to his taking action under the Code, that
some person, whether known or unknown has committed an offence, but
does not include a police report. Under Section 2(c) “cognizable
offence” means an offence for which, and “cognizable case”
means a case in which a police officer may in accordance with the
First Schedule (of the Code) or under any other law for the time
being in force, arrest without a warrant. Under Section 2(r) “police
report” means a report forwarded by a police officer to a
Magistrate under sub- section (2) of Section 173 of the Code. Chapter
XII of the Code comprising Sections 154 to 176 relates to information
to the police and their powers to investigate. Section 154 provides,
inter alia, that the officer in charge of a police station shall
reduce into writing every information relating to the commission of a
cognizable offence given to him orally and every such information if
given in writing shall be signed by the person giving it and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this
behalf.
Section
156 of the Code with which we are primarily concerned in these
appeals reads as under:
“(1)
Any officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a court having
jurisdiction over the local area within the limits of such station
would have power to inquire into or try under the provisions of
Chapter XIII.
(2)
No proceeding of a police officer in any such case shall at any stage
be called in question on the ground that the case was one which such
officer was not empowered under this section to investigate.
(3)
Any Magistrate empowered under Section 190 may order such an
investigation as above mentioned.”
On
completion of investigation undertaken under Section 156(1) the
officer in charge of the police station is required under Section
173(2) to forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by the
State Government containing all the particulars mentioned therein.
Chapter XIV of the Code lays down the conditions requisite for
initiation of proceedings by the Magistrate. Under sub-section (1) of
Section 190 appearing in that Chapter any Magistrate of the First
Class and any Magistrate of the Second Class specially empowered may
take cognizance of any offence (a) upon receiving a “complaint”
of facts which constitutes such offence; (b) upon a "police
report" of such facts; or (c) upon information received from
any person other than a police officer, or upon his own knowledge
that such offence has been committed. Chapter XV prescribes the
procedure the Magistrate has to initially follow if it takes
cognizance of an offence on a complaint under Section 190(1)(a).
25.
Learned counsel for the Union of India relied on the following
passage from Madhu Bala (supra) :- “From a combined reading of the
above provisions it is abundantly clear that when a written complaint
disclosing a cognizable offence is made before a Magistrate, he may
take cognizance upon the same under Section 190(1)(a) of the Code and
proceed with the same in accordance with the provisions of Chapter
XV. The other option available to the Magistrate in such a case is to
send the complaint to the appropriate police station under Section
156(3) for investigation. Once such a direction is given under
sub-section (3) of Section 156 the police is required to investigate
into that complaint under sub- section (1) thereof and on completion
of investigation to submit a "police report" in
accordance with Section 173(2) on which a Magistrate may take
cognizance under Section 190(1)(b) -- but not under 190(1)(a). Since
a complaint filed before a Magistrate cannot be a "police
report" in view of the definition of "complaint"
referred to earlier and since the investigation of a "cognizable
case" by the police under Section 156(1) has to culminate in
a "police report" the "complaint"
-- as soon as an order under Section 156(3) is passed thereon --
transforms itself to a report given in writing within the meaning of
Section 154 of the Code, which is known as the first information
report (FIR). As under Section 156(1), the police can only
investigate a cognizable "case", it has to formally
register a case on that report."
26.
Mr. Raval also relied on the following passage from Madhu Bala' s
case:-
"From
the foregoing discussion it is evident that whenever a Magistrate
directs an investigation on a "complaint" the
police has to register a cognizable case on that complaint treating
the same as the FIR and comply with the requirements of the above
Rules. It, therefore, passes our comprehension as to how the
direction of a Magistrate asking the police to "register a
case" makes an order of investigation under Section 156(3)
legally unsustainable. Indeed, even if a Magistrate does not pass a
direction to register a case, still in view of the provisions of
Section 156(1) of the Code which empowers the police to investigate
into a cognizable "case" and the Rules framed under
the Indian Police Act, 1861 it (the police) is duty-bound to formally
register a case and then investigate into the same. The provisions of
the Code, therefore, do not in any way stand in the way of a
Magistrate to direct the police to register a case at the police
station and then investigate into the same. In our opinion when an
order for investigation under Section 156(3) of the Code is to be
made the proper direction to the police would be "to
register a case at the police station treating the complaint as the
first information report and investigate into the same".
27.
This Court in the case of Hallu
and others v. State of Madhya Pradesh 1974
(4) SCC 300 in the context of Section 154 of the Code held (para 7)
that Section 154 of the Code does not require that the Report must be
given by a person who has personal knowledge of the incident
reported. It is further held that the said Section speaks of an
information relating to the commission of a cognizable offence given
to an officer incharge of a police station.
28.
Mr. Raval placed reliance on para 8 of the judgment of this Court in
the case of Rajinder
Singh Katoch v. Chandigarh Administration and others 2007
(10) SCC 69, wherein this Court observed as under:- "8.Although
the officer in charge of a police station is legally bound to
register a first information report in terms of Section 154 of the
Code of Criminal Procedure, if the allegations made by them give rise
to an offence which can be investigated without obtaining any
permission from the Magistrate concerned, the same by itself,
however, does not take away the right of the competent officer to
make a preliminary enquiry, in a given case, in order to find out as
to whether the first information sought to be lodged had any
substance or not. In this case, the authorities had made
investigations into the matter. In fact, the Superintendent of Police
himself has, pursuant to the directions issued by the High Court,
investigated into the matter and visited the spot in order to find
out the truth in the complaint of the petitioner from the neighbours.
It was found that the complaint made by the appellant was false and
the same had been filed with an ulterior motive to take illegal
possession of the first floor of the house."
29.
While referring to the decision of this Court in Ramesh Kumari
(supra) in para 11 of the judgment in Rajinder Singh's case, it is
observed as under:- "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."
30.
It is further submitted that the above observations run concurrently
to the settled principles of law and more particularly the three
judge Bench decision of this Court in Aleque Padamsee and Others
(supra).
31.
In the context of the statutory provisions, the learned counsel for
the Union of India drew the attention of this Court to the decision
of this Court in the case of Superintendent
of Police, CBI and Others v. Tapan Kumar Singh AIR 2003
SC 4140, paragraph 20 at page 4145 as under:-
"It
is well settled that a First Information Report is not an
encyclopedia, 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 eye witness so as
to be able to disclose in great details all aspects of the offence
committed. What is of significance is that the information given must
disclose the commission of a cognizable offence and 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 concerned
police officer is empowered under Section 156 of the Code to
investigate. If it does, he has no option but to record the
information and proceed to investigate the case either himself or
depute any other competent officer to conduct the investigation. The
question as to whether the report is true, whether it discloses full
details regarding the manner of occurrence, whether the accused is
named, and whether there is sufficient evidence to support the
allegations are all matters which are alien to the consideration of
the question whether the report discloses the commission 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.”
32.
This Court in its decision in the case of Ramesh Kumari (supra) has
observed as under in paragraphs 3, 4 and 5 :-
"3.
Mr Vikas Singh, the 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 subsequently
examined by the respondent and found that no genuine case was
established. We are not convinced by this submission because the sole
grievance of the appellant is that no case has been registered in
terms of the mandatory provisions of Section 154(1) of the Criminal
Procedure Code. Genuineness or otherwise of the information can only
be considered after registration of the case. Genuineness or
credibility of the information is not a condition precedent for
registration of a case. We are also clearly of the view that the High
Court erred in law in dismissing the petition solely on the ground
that the contempt petition was pending and the appellant had an
alternative remedy. The ground of alternative remedy nor pending of
the contempt petition would be no substitute in law not to register a
case when a citizen makes a complaint of a cognizable offence against
a police officer.
- That a police officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code is no more res integra. The point of law has been set at rest by this Court in State of Haryana v. Bhajan Lal. 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: (SCC pp. 354-55)
31.
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. (As we have
proposed to make a detailed discussion about the power of a police
officer in the field of investigation of a cognizable offence within
the ambit of Sections 156 and 157 of the Code in the ensuing part of
this judgment, we do not propose to deal with those sections in
extenso in the present context.) In case, an officer in charge of a
police station refuses to exercise the jurisdiction vested in him and
to register a case on the information of a cognizable offence
reported and thereby violates the statutory duty cast upon him, the
person aggrieved by such refusal can send the substance of the
information in writing and by post to the Superintendent of Police
concerned who if satisfied that the information forwarded to him
discloses a cognizable offence, should either investigate the case
himself or direct an investigation to be made by any police officer
subordinate to him in the manner provided by sub-section (3) of
Section 154 of the Code.
32.
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
in Section 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 into writing which provision was subsequently
modified by Section 112 of the Code of 1872 (Act 10 of 1872) which
thereafter read that `every complaint' preferred to an officer in
charge of a police station shall be reduced in writing. The word
`complaint' which occurred in previous two Codes of 1861 and 1872 was
deleted and in that place the word `information' was used in the
Codes of 1882 and 1898 which word is now used in Sections 154, 155,
157 and 190(c) of the present Code of 1973 (Act 2 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.”
33.
Finally, this Court in Ramesh Kumari (supra) in para 33 said :-
"33.
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."
34.
The views expressed by this Court in paras 31, 32 and 33 as quoted
above leave no manner of doubt that the provision of Section 154 of
the Code is mandatory and the officer concerned is duty-bound to
register the case on the basis of such an information disclosing
cognizable offence.
35.
In the case of Ramesh Kumari (supra), this Court has held that the
views expressed by this Court in the case of State
of Haryana and Others v. Bhajan Lal and Others 1992
Suppl. (1) SCC 335 leave no matter of doubt that the provisions of
Section 154 of the Code is mandatory and the officer concerned is
duty bound to register the case on the basis of such information
disclosing a cognizable offence.
36.
Mr. Raval while concluding his arguments reiterated that Section 154
of the Code it is mandatory for the officer concerned to register the
case on the basis of such information including cognizable offence.
According to Union of India, the police officer has no discretion in
the matter and this is according to the legislative intention behind
enacting Section 154 of the Code of Criminal Procedure.
37.
Mr. Ratnakar Das, learned senior advocate appearing for the State of
U.P. adopted the arguments addressed by Mr. Raval on behalf of the
Union of India and submitted that the word `shall' appearing in
Section 154 mandates the police to enter the information about
commission of a cognizable offence in a book in such form commonly
known as "First Information Report'. At that stage, the
police cannot go into the question about the truth or otherwise of
the information and make a roving enquiry.
38.
It was also submitted by Mr. Das that the word `information' is not
qualified by credible information. It has to be recorded with utmost
dispatch and if its recording is dependent upon any type of
preliminary enquiry, then there would be a great temptation to
incorporate the details and circumstances advantageous to the
prosecution which may be lacking in the earlier information.
Similarly, if the police is given the power to hold a preliminary
inquiry before registration of an FIR it may benefit the wrongdoer
because by afflux of time, the evidence would be obliterated or
destroyed and thereby justice would be denied to the victim of crime.
39.
Mr. Das gave an example that in a bride burning case, when a person
makes a complaint that the husband and the in-laws of his daughter
have doused her with kerosene and set her ablaze and arrangements
were being made to cremate the dead body, in that case, if the police
instead of taking immediate steps to register an FIR proceeds to the
spot to seize the dead body and the burnt clothes etc. on the plea
that he is required to make preliminary enquiry to ascertain the
truth, then during the interregnum, no evidence would be available to
bring the offenders to book. It needs to mention that power is
conferred upon the police under the Code to make seizure in course of
investigation and not during the enquiry. So, the police being in
connivance with the accused may permit them to cremate the dead body
in order to cause disappearance of the evidence.
40.
It is further submitted by Mr. Das that now-a-days custodial violence
is on the rise. Horror of Bhagalpur blinding case and the Maya Tyagi
case in Uttar Pradesh are still in the minds of the people. It is
complained that the police do not take action against their own
brethren who commit crimes. Most of the times the Court intervenes
and it is only then that the person wronged gets justice. In such
cases if the police is given handle to hold a preliminary enquiry the
offender will get a scope to fabricate evidence and ultimately the
police will deny registration of an FIR on the ground that the
preliminary enquiry does not reveal any such offence having been
committed at all.
41.
It was submitted on behalf of the Union of India and the State of
U.P. that in the Code the Legislature never intended to incorporate
any provision for conducting any `preliminary enquiry' before
registering an FIR when a report regarding commission of a cognizable
offence is made. The specific question on this issue was never raised
or agitated earlier before this Court at any point of time whether as
a general rule the police should hold a preliminary enquiry before
registering an FIR and take further steps in the investigation. Only
in two cases in respect of the offence under Prevention of Corruption
Act which was to be investigated by the Central Bureau of
Investigation (CBI) this Court taking note of the peculiar facts and
circumstances of those cases, made an observation that where public
servant is charged with acts of dishonesty amounting to serious
misdemeanor, registering an FIR should be preceded by some suitable
preliminary enquiry. In another case in which dispute regarding
property between the brothers was involved, this Court in the
peculiar facts of that case made an observation that though 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, if the
allegations give rise to an offence which can be investigated without
obtaining permission from the Magistrate, the same however, does not
take away the right of the competent officer to make a preliminary
enquiry in a given case in order to find whether the FIR sought to be
lodged has any substance or not.
42.
According to him, the grievance of the appellant in the said case was
that his report which revealed commission of a cognizable case was
not treated as an FIR by the concerned police. It was not the issue
nor was any argument advanced as to whether registering of an FIR as
provided under Section 154 of the Code should be preceded by some
sort of preliminary enquiry or not. In such view of the matter, the
observation of this Court that it does not take away the right of the
competent officer to make a preliminary enquiry in a given case is
nothing but a passing observation.
43.
According to Mr. Das, the provision of law about registration of an
FIR is very clear and whenever information relating to cognizable
offence is received by the police, in that event the police had no
option but to register the FIR.
44.
Mr. Shekhar Naphade, learned Senior counsel appearing for the State
of Maharashtra on the other hand has taken a different view as taken
by the Union of India and submitted that before registering an FIR
under Section 154 Cr.P.C. it is open to the SHO to hold a preliminary
enquiry to ascertain whether there is prime facie case of commission
of cognizable offence or not.
45.
Mr. Naphade has comprehensively explained the statutory scheme of
Section 154 Cr.P.C.. According to him, Sections 41, 57 154(3) 156(1)
and 156(3), 157, 167, 190 and 202 are an integral part of the
statutory scheme relating to investigation of crimes. These
provisions clearly contemplate that the police officer can exercise
powers under the aforesaid provisions provided he is prima-facie
satisfied that there are reasonable grounds to believe that the
accused is guilty of commission of the cognizable offence.
46.
Section 154 of Cr.P.C. forms a part of a chain of statutory
provisions relating to investigation, and therefore, it must follow
that the provisions of Sections 41, 157, 167 etc. have a bearing on
the interpretation of Section 154 of Cr.P.C. The said judgments have
interpreted Section 154 of Cr.P.C. purely on the literal
interpretation test and while doing so, the other important tests of
statutory interpretation, like a statute must be read as a whole and
no provision of a statute should be considered and interpreted
de-hors the other provisions, the rule of purposive construction etc.
are lost sight of. He referred to the following cases - Tarachand and
Another v. State of Haryana 1971 (2) SCC 579, Sandeep Rammilan Shukla
v. State of Maharashtra and Others 2009 (1) Mh.L.J. 97, Sakiri Vasu
v. State of Uttar Pradesh and Others 2008 (2) SCC 409, Nasar
Ali v. State of Uttar Pradesh 1957
SCR 657,Union
of India and Another v. W.N. Chadha 1993
(Suppl.) 4 SCC 260, State
of West Bengal v. S.N. Basak 1963
(2) SCR 52.
47.
Mr.Naphade
submitted that in the case of allegations relating to medical
negligence on the part of doctors, this Court has clearly held that
no medical professional should be prosecuted merely on the basis of
the allegations in the complaint. There should be an in- depth
enquiry into the allegations relating to negligence and this
necessarily postulates a preliminary enquiry before registering an
FIR or before entering on investigation.
He reported to State
of M.P. v. Santosh Kumar -
2006 (6) SCC 1 and Dr.
Suresh Gupta v. Govt. of NCT of Delhi and Another 2004(6)
SCC 422.
48.
He also submitted that the same principle can also be made applicable
to the people of different categories. The literal interpretation of
Section would mean the registration of an FIR to a mechanical act.
The registration of an FIR results into serious consequences for the
person named as accused therein. It immediately results in loss of
reputation, impairment of his liberty, mental anguish, stigma, etc.
It is reasonable to assume that the legislature could not have
contemplated that a mere mechanical act on the part of SHO should
give rise to such consequences.
49.
He submitted that the registration of an FIR under Section 154 of
Cr.P.C. is an administrative act of a police officer. In the case
of Rai
Sahib Ram Jawaya Kapur and Others v. State of Punjab1955
(2) SCR 225, this
Court has explained what is administrative function and has said that
ordinarily the executive power connotes the residue of Government
functions that remain after legislative/judicial functions are taken
away. Every administrative act must be based on application of mind,
scrutiny and verification of the facts. No administrative act can
ever be a mechanical one. This is the requirement of rule of law.
Reference was made to paras 12 and 13 of State
(Anti-Corruption Branch), Govt. of NCT of Delhi and Another v. Dr.
R.C. Anand and Another 2004
(4) SCC 615.
50.
According to Mr. Naphade, these judgments have not considered the
impact of Article 21 on Section 154 of Cr.P.C. After and beginning
with Maneka
Gandhi v. Union of India and Another 1978
(1) SCC 248, this Court has applied Article 21 to several provisions
relating to criminal law. This Court has also said that the
expression "law" contained in Article 21
necessarily postulates law which is reasonable and not merely a
statutory provision irrespective of its reasonableness or otherwise.
In the light of Article 21, provisions of Section 154 of Cr.P.C. must
be read down to mean that before registering an FIR, the Station
House Officer must have a prima-facie satisfaction that there is
commission of cognizable offence as registration of an FIR leads to
serious consequences for the person named as accused and for this
purpose, the requirement of preliminary enquiry can be spelt out in
Section 154 and can be said to be implicit within the provisions of
Section 154 of Cr.P.C. Reliance was placed on Maneka Gandhi (supra)
and S.M.D.
Kiran Pasha v. Government of Andhra Pradesh and Others 1990
(1) SCC 328.
51.
The fact that Sections 154 (3), 156(3), 190, 202 etc. clearly provide
for remedies to a person aggrieved by refusal on the part of the SHO
to register an FIR, clearly show that the statute contemplates that
in certain circumstances the SHO can decline to register an FIR.
52.
To require SHO to register an FIR irrespective of his opinion that
the allegations are absurd or highly improbable, motivated etc. would
cause a serious prejudice to the person named as accused in the
complaint and this would violate his rights under Article 21. This
Court has recognized the concept of pre- violation protection
implicit in Article 21. The said judgments while relying upon the
literal interpretation test have not considered the rule of statutory
interpretation that in certain situations the expression
"shall" does not convey mandatory character of the
provisions. For example, proviso to Section 202 (2) has been held
using the expression "shall" not to be mandatory
but directory. After all, Section 154 of Cr.P.C. is a part of the
procedural law and in respect of procedural law, the expression
"shall" may not always necessarily convey that the
provision is mandatory. Mr. Naphade placed reliance on the following
cases - P.T.
Rajan v. T.P.M. Sahir and Others 2003(8)
SCC 498, Shivjee
Singh v. Nagendra Tiwary and Others 2010
(7) SCC 578 and Sarbananda Sonowal (II) etc. v. Union of India 2007
(1) SCC 174. The said judgments have also not considered the rule of
purposive interpretation and also that the statute must be considered
as a whole and no provision can be interpreted in isolation. 4
53.
The non-registration of an FIR does not result in crime going
unnoticed or unpunished. The registration of an FIR is only for the
purpose of making the information about the cognizable offence
available to the police and to the judicial authorities at earliest
possible opportunity. The delay in lodging an FIR does not
necessarily result in acquittal of the accused. The delay can always
be explained.
54.
Mr. Naphade also submitted that this Court has also held that
registration of an FIR is not a condition precedent for initiating
investigation into the commission of a cognizable offence. Section
154 Cr.P.C. clearly imposed a duty on the police officer. When
an information is received, the officer in charge of the police
station is expected to reach the place of occurrence as early as
possible. It is not necessary for him to take steps only on the basis
of an FIR. It is the duty of the State to protect the life of an
injured as also an endeavour on the part of the responsible police
officer to reach the place of occurrence in his implicit duty and
responsibility.
This has been held in the case of Animireddy
Venkata Ramana and Others v. Public Prosecutor, High Court of Andhra
Pradesh 2008
(5) SCC 368.
55.
Mr. Naphade further submitted that ordinarily the SHO should record
an FIR upon receiving a complaint disclosing the ingredients of a
cognizable offence, but in certain situations he should have the
discretion of holding a preliminary enquiry and thereafter if he is
satisfied, register an FIR.
- The provisions contained in Section 154 Cr.P.C. of 1973 were also there in the 1898 Cr.P.C. and even the earlier one of 1877. The interpretation that was placed by the High Courts and the Privy Council on these provisions prior to Maneka Gandhi (supra) rested principally on the words used in the Section de-hors the other provisions of the Act and also de-hors the impact of Article 21 of the Constitution on the criminal jurisprudence. In other words, the courts have followed the test of literal interpretation without considering the impact of Article 21.
57.
It is a trite proposition that a person who is named in an FIR as an
accused, suffers social stigma. If an innocent person is falsely
implicated, he not only suffers from loss of reputation but also
mental tension and his personal liberty is seriously impaired. After
Maneka Gandhi's case, the proposition that the law which deprives a
person of his personal liberty must be reasonable, both from the
stand point of substantive aspect as well as procedural aspect is now
firmly established in our constitutional law. This warrants a fresh
look at Section 154 of Cr.P.C. Section 154 Cr.P.C. must be read in
conformity with the mandate of Article 21. If it is so interpreted,
the only conclusion is that if a Police Officer has doubts about the
veracity of the complaint, he can hold preliminary enquiry before
deciding to record or not to record an FIR. 5
58.
It is the mandate of Article 21 which requires a Police Officer to
protect a citizen from baseless allegations. This, however, does not
mean that before registering an FIR the police officer must fully
investigate the case. A delicate balance has to be maintained between
the interest of the society and protecting the liberty of an
individual. Therefore, what should be the precise parameters of a
preliminary enquiry cannot be laid down in abstract. The matter must
be left open to the discretion of the police officer.
59.
A proposition that the moment the complaint discloses ingredients a
cognizable offence is lodged, the police officer must register an FIR
without any scrutiny whatsoever, is an extreme proposition and is
contrary to the mandate of Article 21. Similarly, the extreme point
of view is that the police officer must investigate the case
substantially before registering an FIR is also an argument of the
other extreme. Both must be rejected and a middle path must be
chosen.
5
- Mr.Naphade mentioned about Maneka Gandhi's case and observed that the attempt of the Court should be to expand the reach and ambit of the fundamental rights, rather than to attenuate their meaning and contents by a process of judicial construction. The immediate impact of registration of an FIR on an innocent person is loss of reputation, impairment of personal liberty resulting in mental anguish and, therefore, the act of the police officer in registering an FIR must be informed by reason and it can be so only when there is a prima facie case against the named accused.
61.
According to Mr. Naphade, the provisions of Article 14 which are an
anti-thesis of arbitrariness and the provisions of Articles 19 and 21
which offer even a pre- violation protection require the police
officer to see that an innocent person is not exposed to baseless
allegations and, therefore, in appropriate cases he can hold
preliminary enquiry. In Maneka Gandhi's case this Court has
specifically laid down that in R.C. Cooper's case it has been held
that all fundamental rights must be read together and that
Articles 14, 19 and 21 overlap in their content and scope and that
the expression `personal liberty' is of the widest amplitude and
covers a variety of rights which go to constitute personal liberty of
a citizen. (Reliance was particularly placed on paras 5,6 and 7
on pages 278-284).
62.
Mr. Naphade further argued that this Court has held that in order to
give concrete shape to a right under Article 21, this Court can issue
necessary directions in the matter. If directions as regards arrest
can be given, there is no reason why guidelines cannot be framed by
this Court as regards registration or non-registration of an FIR
under Section 154 Cr.P.C.
63.
Mr. Naphade also submitted that the importance of the need of the
police officer's discretion of holding a preliminary inquiry is well
illustrated by the judgment of this Court in the case of Uma Shankar
Sitani v. Commissioner of Police, Delhi and Ors. 1996 (11) SCC 714.
In that case the complaint was lodged by one Sarvjeet Chauhan against
one Uma Shankar relating to alleged cognizable offence. Uma Shankar
was arrested and upon investigation it was found that the complainant
was a fictitious person. Somebody else had filed the false complaint.
The residential address of the fictitious complainant was also
fictitious. In the whole process Uma Shankar went through serious
mental turmoil as not only the allegation was found to be false, but
he was arrested by the police and had to undergo humiliation and loss
of reputation. Such incidents can happen and must have happened in
scores of cases as filing of false cases due to personal, political,
business rivalry, break- down of matrimonial relationship etc. are
rampant.
64.
Mr. Naphade submitted that Section 498-A of I.P.C. which was meant to
be a measure of protection, turned out to be an instrument of
oppression. Judicial notice of this has been taken by this Court in
the case of Preeti Gupta and Another v. State of Jharkhand and
Another (2010) 7 SCC 667. In the said case, this Court has referred
to rapid increase in filing of complaints which are not bona fide and
are filed with oblique motives. Such false complaints lead to
insurmountable harassment, agony and pain to the accused. This Court
has observed that the allegations of the complainant in such cases
should be scrutinized with great care and circumspection. Is it,
therefore, not advisable that before registering an FIR, a
preliminary inquiry at least to verify the identity of the
complainant and his residential address should be carried out. This
case illustrates how on a false complaint, a person's right to life
and liberty under Article 21 of the Constitution can be put to
serious jeopardy.
65.
This Court in its judgment in Francis
C. Mullin v. Administrator, Union Territory of Delhi 1981
(1) SCC 608 [paras 4 and 5) has held that Article 21 requires that no
one shall be deprived of his life and personal liberty except by
procedure established by law and this procedure must be reasonable,
fair and just. If the procedure is not reasonable, fair and just, the
Court will immediately spring into action and run to the rescue of
the citizen. From this it can be easily deduced that where the police
officer has a reasonable doubt about the veracity of the complaint
and the motives that prompt the complainant to make the complaint, he
can hold a preliminary inquiry. Holding of preliminary inquiry is the
mandate of Article 21 in such cases. If the police officer
mechanically registers the complaint involving serious allegations,
even though he has doubts in the matter, Article 21 would be
violated. Therefore, Section 154 must be read in the light of Article
21 and so read preliminary inquiry is implicit in Section 154. In
paras 7 and 8 of the said judgment, this Court has made an
unequivocal declaration of the law that any
act which damages or injures or interferes with use of any limb or
faculty of a person, either permanently or even temporarily, would be
within the ambit of Article 21.
66.
Not only this, every act which offends against and imperils human
dignity, would constitute deprivation pro tanto of this right to live
and it would have to be in accordance with the reasonable, just and
fair procedure established by law which stands the test of other
fundamental rights. A baseless allegation is a violation of human
dignity and despite the police officer having doubts about the
allegation, he being required to register an FIR, would be a clear
infringement of Article 21.
67.
Mr. Naphade further submitted that it is settled principle of law
that no single provision of a statute can be read and interpreted in
isolation. The statute must be read as a whole. In the present case,
the provisions of Sections 41,57, 156, 157, 159, 167, 190, 200 and
202 of Cr.P.C. must be read together. These provisions constitute the
statutory scheme relating to investigation of offences and,
therefore, no single provision can be read in isolation. Both,
Sections 41 and 154 deal with cognizable offence. Section 41 empowers
the police to arrest any person without warrant from the Magistrate
if such person is concerned in any cognizable offence or against whom
a reasonable complaint has been made or credible information has been
received or reasonable suspicion exits of such person having been so
concerned with the cognizable offence. Section 41 also specifically
refers to a cognizable complaint about commission of a cognizable
offence.
68.
The scheme of the Act is that after the police officer records an FIR
under Section 154 Cr.P.C., he has to proceed to investigate under
Section 156 Cr.P.C. and while investigating the police officer has
power to arrest. What is required to be noted is that for the purpose
of arresting the accused, the police officer must have a reasonable
ground to believe that the accused is involved in the commission of a
cognizable offence. If Sections 41 and 154 are so read together, it
is clear that before registering an FIR under Section 154 the police
officer must form an opinion that there is a prima facie case against
the accused. If he does not form such an opinion and still proceeds
to record an FIR, he would be guilty of an arbitrary action. Every
public authority exercising any powers under any statute is under an
obligation to exercise that power in a reasonable manner. This
principle is well settled and it forms an integral part of the legal
system in this country.
69.
Mr. Naphade submitted that the provisions of Section 154(3) enable
any complainant whose complaint is not registered as an FIR by the
SHO to approach the higher police officer for the purpose of getting
his complaint registered as an FIR and in such case, the higher
police officer has all the powers of recording an FIR and directing
investigation into the matter. Apart from this power under Section 36
any police officer senior in rank to an officer in charge of the
police station can exercise the same powers as may be exercised by
such officer in charge of the police station. Provisions of Section
154 (3) and Section 36 are clear indication that in an appropriate
case a police officer can either decline to register the FIR or defer
its registration. The provisions of Section 154(3) and Section 36 is
a sufficient safeguard against an arbitrary refusal on the part of a
police officer to register the FIR. The very fact that a provision
has been made in the statute for approaching the higher police
officer, is an indication of legislative intent that in appropriate
cases, a police officer may decline to register an FIR and/or defer
its registration.
70.
In addition to the remedy available to the aggrieved person of
approaching higher police officer, he can also move the concerned
Magistrate either under Section 156(3) for making a complaint under
Section 190. If a complaint is lodged, the Magistrate can examine the
complainant and issue process against the accused and try the case
himself and in case triable by Sessions Court, then he will commit
the case to Sessions under Section 209.
71.
The Magistrate can also on receipt of a complaint, hold an enquiry or
direct the police to investigate. In addition to the above, the
Magistrate also has a power to direct investigation under Section 159
Cr.P.C. In the case of Mona Panwar v. High Court of Judicature of
Allahabad (2011) 3 SCC 496 in paras 17 and 18 on page 503 this Court
has, inter alia, held that if the complaint relating to a cognizable
officer is not registered by the police, then the complainant can go
the Magistrate and then the Magistrate has the option of either
passing an order under Section 156(3) or proceeding under Section
200/202 of the Code.
72.
It was also submitted by Mr. Naphade that an order under Section
156(3) of the Code is in the nature of a preemptory reminder or
intimation to the police to exercise its plenary power of
investigation under Section 156(1). Such an investigation embraces
the entire continuous process which begins with the collection of
evidence under Section 156 and ends with the vital report either
under Section 169 or submission of a charge-sheet under Section 173
of the Code. A Magistrate can under Section 190 of the Code before
taking cognizance, direct investigation by the police by order under
Section 156(3) of the Code.
73.
Mr. Naphade also submitted that the very fact that the Legislature
has provided adequate remedies against refusal to register an FIR and
hold investigation in cognizable offences is indicative of
legislative intent that the police officer is not bound to record an
FIR merely because the ingredients of cognizable offences are
disclosed in the complaint if he has doubt about the veracity of the
complaint.
74.
In further support of the proposition that a police officer is not
bound to register an FIR on mere disclosure of existence of
ingredients of cognizable offence, it is submitted that the statute
does not contemplate that for the purpose of investigation, recording
of an FIR is a condition precedent. Section 156 empowers the police
to do so. Similarly, Section 157 clearly lays down that if from
information received or otherwise an officer in charge of the police
station has reason to suspect the commission of an offence, he can
investigate into the same. In Section 157(1) the expression
"from information received" obviously refers to
complaint under Section 154 Cr.P.C. registered as an FIR. The word
"otherwise" in Section 157 Cr.P.C. clearly
indicates that recording of an FIR is not a condition precedent to
initiation of investigation. The very fact that the police have a
power of investigation independent of registration of an FIR is a
clear pointer to the legislative intent that a police officer is not
bound to register an FIR in each and every case.
- Mr. Naphade relied on the case of Apren Joseph alias current Kunjukunju and Others v. State of Kerala 1973 (3) SCC 114 wherein in para 11 this Court has held that recording of an FIR is not a condition precedent for setting in motion criminal investigation. In doing so, this Court has approved the observation of Privy Council made in the case of Khwaja Nazim Ahmad (supra).
76.
Mere recording of an FIR under Section 154 Cr.P.C. is of no
consequence unless the alleged offence is investigated into. For the
purpose of investigation after registration of the FIR, the police
officer must have reason to suspect commission of an offence. Despite
registration of the FIR, the police officer may not have a reasonable
ground to suspect that an offence has been committed and in that
situation he may decline to carry out investigation and may come to
the conclusion that there is no sufficient ground for carrying out
investigation. If under the proviso (b) to Section 157 Cr.P.C. the
police officer has such discretion of not investigating, then it
stands to reason that registration of an FIR should not result into
an empty formality.
77.
The registration of an FIR should be effective and it can be
effective only if further investigation is to be carried out and
further investigation can be carried out only if the police officer
has reasonable ground to suspect that the offence is committed. If,
therefore, there is no reasonable ground to suspect the commission of
cognizable offence, the police officer will not investigate and if
that is a situation, then on the same footing he may decline to
register the FIR. This is clearly implicit in the provisions of
Section 154(1). It is, submitted that if the provisions of Section
154 are read with Sections 41,57,156,157,159,167,190,200 and 202
Cr.P.C., the only possible conclusion is that a police officer is not
bound to register each and every case.
78.
Mr. Naphade placed reliance on State
of Maharashtra and Others v. Sarangdharsingh Shivdassingh Chavan and
Another (2011)
1 SCC 577 wherein in paragraphs 29 and 30, this Court has observed as
follows:- “29. The legal position is well settled that on
information being lodged with the police and if the said information
discloses the commission of a cognizable offence, the police shall
record the same in accordance with the provisions contained under
Section 154 of the Criminal Procedure Code. The police officer's
power to investigate in case of a cognizable offence without order of
the Magistrate is statutorily recognised under Section 156 of the
Code. Thus the police officer in charge of a police station, on the
basis of information received or otherwise, can start investigation
if he has reasons to suspect the commission of any cognizable
offence.
30.
This is subject to provisos (a) and (b) to Section 157 of the Code
which leave discretion with the police officer in charge of police
station to consider if the information is not of a serious nature, he
may depute a subordinate officer to investigate and if it appears to
the officer- in-charge that there does not exist sufficient ground,
he shall not investigate. This legal framework is a very vital
component of the rule of law in order to ensure prompt investigation
in cognizable cases and to maintain law and order.”
79.
He submitted that if the police officer is of the opinion that the
complaint is not credible and yet he is required to register the FIR,
then he would be justified in not investigating the case. In such a
case the FIR would become a useless lumber and a dead letter. The
police officer would then submit a closure report to the Magistrate.
The Magistrate then would issue notice to the complainant and hear
him. If the Magistrate is of the opinion that there is a case, then
he may direct police to investigate.
80.
Mr. Napahde submitted that the aforesaid analysis of various
provisions of Criminal Procedure Code clearly bring out that the
statutory provisions clearly maintain a balance between the rights of
a complainant and of the Society to have a wrongdoer being brought to
book and the rights of the accused against baseless allegations.
81.
The provisions have also to be read in the light of the principle of
malicious prosecution and the fundamental rights guaranteed under
Articles 14, 19 and 21. Every citizen has a right not to be subjected
to malicious prosecution and every police officer has an in- built
duty under Section 154 to ensure that an innocent person is not
falsely implicated in a criminal case. If despite the fact that the
police officer is not prima facie satisfied as regards commission of
a cognizable offence, and proceeds to register an FIR and carry out
investigation and thereby putting the liberty of a citizen in
jeopardy, he would expose himself to the charge of malicious
prosecution and against the charge of malicious prosecution the
doctrine of sovereign immunity will not protect him. There is no law
protecting a police officer who takes part in the malicious
prosecution.
82.
Mr. Naphade also submitted that the word "shall"
used in the statute does not always mean absence of any discretion in
the matter.
83.
The word "shall" does not necessarily lead to
provision being imperative or mandatory.
84.
The use of word "shall" raises a presumption that
the particular provision is imperative. But, this presumption may be
rebutted by other considerations such as, object and scope of the
enactment and other consequences flowing from such construction.
There are numerous cases where the word "shall"
has, therefore, been construed as merely directory.
85.
In the case of Sainik
Motors, Jodhpur and Others v. State of Rajasthan AIR 1961
SC 1480, Hidayatullah, J. has held that the word "shall"
is ordinarily mandatory, but it is sometimes not so interpreted if
the context of intention otherwise demands.
86.
Further, Subba Rao, J. in the case of State
of Uttar Pradesh and Others v. Babu Ram Upadhya AIR 1961
SC 751, has observed that when the statute uses the word
"shall" prima facie it is mandatory, but the Court
may ascertain the real intention of the legislature carefully
attending to the whole scope of the statute.
87.
In the case of State
of Madhya Pradesh v. M/s Azad Bharat Finance Co. and Another AIR 1967
SC 276 it has been held that the word "shall" does
not always mean that the provision is obligatory or mandatory. It
depends upon the context in which the word "shall"
occur and the other circumstances.
88.
In the case of Shivjee Singh (supra) it has been held that the use of
word "shall" in proviso to Section 202 (2) of
Cr.P.C. prima facie is indicative of mandatory character of the
provision contained therein. But, a close and critical analysis
thereof along with other provisions show that the same is not
mandatory. Further, it has been observed that by its very
nomenclature, Cr.P.C. is a compendium of law relating to criminal
procedure. The provisions contained therein are required to be
interpreted keeping in view the well recognized rule of construction
that procedural prescriptions are meant for doing substantial
justice. If violation of procedural provisions does not result in
denial of a fair hearing or causes prejudice to the party, the same
has to be treated as directly notwithstanding the use of the word
"shall".
89.
In P.T. Rajan (supra), this Court has discussed the principles as to
whether a statute is mandatory or directory. The Court has observed
that a statute as is well known must be read in the text and context
thereof. Whether a statute is directory or mandatory would not be
dependent on the use of the word "shall" or
"may". Such a question must be posed and answered
having regard to the purpose and object it seeks to achieve. It has
further been held that a provision in a statute which is procedural
in nature although employs the word "shall" may not
be held to be mandatory if thereby no prejudice is caused. The
analysis of various provisions of Cr.P.C. clearly shows that no
prejudice is caused if police officer does not register an FIR. The
complainant has effective remedies under Sections 154(3), 156, 190
Cr.P.C. etc.
90.
Mr. Naphade, the learned senior counsel submitted that it is
impossible to put the provisions of Section 154 Cr.P.C. in any
straight jacket formula. However, some guidelines can be framed as
regards registration or non- registration of an FIR. According to
him, some such guidelines are as follows:-
1.
Normally in the ordinary course a police officer should record an
FIR, if the complaint discloses a cognizable offence. However, in
exceptional cases where the police officer has reason to suspect that
the complaint is motivated on account of personal or political
rivalry, he may defer recording of the FIR, and take a decision after
preliminary enquiry.
2.
In case of complaints which are a result of vendetta like complaints
under Section 498A Cr.P.C. (IPC), the police officer should be slow
in recording an FIR and he should record an FIR only if he finds a
prima facie case.
3.
The police officer may also defer recording of an FIR if he feels
that the complainant is acting under a mistaken belief.
4.
The police officer may also defer registering an FIR if he finds that
the facts stated in the complaint are complex and complicated, as
would be in respect of some offences having financial contents like
criminal breach of trust, cheating etc.
91.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant deferment of an FIR.
92.
The second aspect of the matter is what test should the police
officer take in case he is of the opinion that registration of an FIR
should be deferred. He suggested the following measures :-
1.
The police officer must record the complaint in the Station/General
Diary. This will ensure that there is no scope for manipulation and
if subsequently he decides to register an FIR, the entry in
Station/General Diary should be considered as the FIR.
2.
He should immediately report the matter to the superior police
officer and convey him his reasons or apprehensions and take his
permission for deferring the registration. A brief note of this
should be recorded in the station diary.
3.
The police officer should disclose to the complainant that he is
deferring registration of the FIR and call upon him to comply with
such requisitions the police officer feels necessary to satisfy
himself about the prima facie credibility of the complaint. The
police officer should record this in the station diary. All this is
necessary to avoid any charge as regard to the delay in recording the
FIR. It is a settled law that a mere delay in registering an FIR is
not harmful if there are adequate reasons to explain the delay in
filing an FIR.
93.
According to him, in the light of the above discussion in respect of
the impact of Article 21 on statutory provisions, it must be held
that Section 154 of Cr.P.C. must be interpreted in the light of
Article 21. The requirement of Article 21 is that the procedure
should be just and fair. If, therefore, the police officer himself
has doubts in the matter, it is imperative that he should have the
discretion of holding a preliminary inquiry in the matter. If he is
debarred from holding such a preliminary inquiry, the procedure would
then suffer from the vice of arbitrariness and unreasonableness.
94.
Learned counsel appearing for the State of Tamil Nadu adopted the
arguments submitted by Mr. Naphade, the learned senior counsel for
Maharashtra and submitted that ordinarily a police officer has to
register an FIR when a cognizable offence is made out, but in
exceptional cases he must have some discretion or latitude of
conducting some kind of preliminary inquiry before recording of the
FIR.
95.
Learned counsel for the parties have drawn our attention to two sets
of cases decided by this Court expressing totally divergent judicial
opinions. We deem it appropriate to briefly summarise them in the
following paragraphs.
96.
This Court in the case of Bhajan Lal and Others (supra), Ramesh
Kumari (supra), Parkash Singh Badal and Another v. State of Punjab
and Others (2007) 1 SCC 1 and Aleque Padamsee and Others (supra) held
that if a complaint alleging commission of cognizable offence is
received in the Police Station, then the S.H.O. has no option but to
register an F.I.R. under Section 154 Cr.P.C..
97.
On the other hand, this Court in following cases, namely, Rajinder
Singh Katoch (supra), P. Sirajuddin etc. v. State of Madras etc. 1970
(1) SCC 595, Bhagwant Kishore Joshi (supra), Sevi and Another etc. v.
State of Tamil Nadu and Another 1981 (Suppl.) SCC 43 have taken
contrary view and held that before registering the FIR under Section
154 of Cr.P.C., it is open to the SHO to hold a preliminary enquiry
to ascertain whether there is a prima facie case of commission of
cognizable offence or not.
98.
We deem it appropriate to give a brief ratio of these cases.
99.
In Bhajan Lal (supra), this Court observed as under:-
"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."
100.
In Ramesh Kumari (supra), this Court observed that the provision of
Section 154 of the Code is mandatory and the officer concerned is
duty-bound to register the case on the basis of such an information
disclosing cognizable offence.
101.
In Parkash Singh Badal (supra), this Court observed as under:-
"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."
102.
In Aleque Padamsee (supra), this Court observed as under :-
"The
correct position in law, therefore, is that the police officials
ought to register the FIR whenever facts brought to their notice show
that cognizable offence has been made out."
103.
There is another set of cases where this Court has taken contrary
view.
104.
In Rajinder Singh Katoch (supra), this Court observed as under:-
"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."
105.
In Bhagwant Kishore Joshi (supra), Mudholkar, J. in his concurring
judgment has observed as under:-
"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."
106.
In P. Sirajuddin etc. (supra), this Court quoted the observations of
the High Court as under:- "(a) "substantial
information and evidence had been gathered before the so-called first
information report was registered"."
107.
In Sevi and Another (supra), this Court observed as under:-
"If
he was not satisfied with the information given by PW 10 that any
cognizable offence had been committed he was quite right in making an
entry in the general diary and proceeding to the village to verify
the information without registering any FIR."
8
108.
It is quite evident from the ratio laid down in the aforementioned
cases that different Benches of this Court have taken divergent views
in different cases. In this case also after this Court's notice, the
Union of India, the States and the Union Territories have also taken
or expressed divergent views about the interpretation of Section 154
Cr.P.C.
109.
We have carefully analysed various judgments delivered by this Court
in the last several decades. We clearly discern divergent judicial
opinions of this Court on the main issue whether under Section 154
Cr.P.C., a police officer is bound to register an FIR when a
cognizable offence is made out or he (police officer) has an option,
discretion or latitude of conducting some kind of preliminary enquiry
before registering the FIR.
110.
Learned counsel appearing for the Union of India and different States
have expressed totally divergent views even before this Court. This
Court also carved out a special category in the case of medical
doctors in the aforementioned cases of Santosh Kumar (supra) and Dr.
Suresh Gupta (supra) where preliminary enquiry had been postulated
before registering an FIR.
111.
Some counsel also submitted that the CBI Manual also envisages some
kind of preliminary enquiry before registering the FIR. The issue
which has arisen for consideration in these cases is of great public
importance.
112.
In view of the divergent opinions in a large number of cases decided
by this Court, it has become extremely important to have a clear
enunciation of law and adjudication by a larger Bench of this Court
for the benefit of all concerned - the courts, the investigating
agencies and the citizens.
113.
Consequently, we request Hon'ble the Chief Justice to refer these
matters to a Constitution Bench of at least five Judges of this Court
for an authoritative judgment.
...................................J.
(Dalveer
Bhandari)
..................................J.
(T.S.
Thakur)
...................................J.
(Dipak
Misra)
New
Delhi;
February
27, 2012
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