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whether under Section 154 CrPC, 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 inquiry before registering the FIR.= Lalita Kumari …. Petitioner (s) Versus Govt. of U.P. & Ors. …. Respondent(s)= Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40960

whether under Section 154 CrPC,

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

 

 

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 inquiry before registering the FIR.=

 

 

 

 

 

 In view of the aforesaid discussion, we hold:

 

     i) Registration of FIR is mandatory under Section 154 of the Code,  if

 

        the information discloses commission of a cognizable offence and no

 

        preliminary inquiry is permissible in such a situation.

 

    ii) If the information received does not disclose a cognizable  offence

 

        but indicates the necessity for an inquiry, a  preliminary  inquiry

 

        may be conducted only to ascertain whether  cognizable  offence  is

 

        disclosed or not.

 

   iii)  If the inquiry discloses the commission of a  cognizable  offence,

 

        the FIR must be registered. In cases where preliminary inquiry ends

 

        in closing the complaint, a copy of the entry of such closure  must

 

        be supplied to the first informant forthwith and not later than one

 

        week.  It must disclose reasons in brief for closing the  complaint

 

        and not proceeding further.

 

    iv) The police officer cannot avoid his duty of registering offence  if

 

        cognizable offence is  disclosed.  Action  must  be  taken  against

 

        erring officers who do not register the FIR if information received

 

        by him discloses a cognizable offence.

 

     v) The scope of preliminary inquiry is not to verify the  veracity  or

 

        otherwise of the information received but only to ascertain whether

 

        the information reveals any cognizable offence.

 

    vi) As to what type and in which cases preliminary  inquiry  is  to  be

 

        conducted will depend on the facts and circumstances of each  case.

 

        The category of cases in which preliminary inquiry may be made  are

 

        as under:

 

        a) Matrimonial disputes/ family disputes

 

        b) Commercial offences

 

        c) Medical negligence cases

 

        d) Corruption cases

 

        e)  Cases  where  there  is  abnormal  delay/laches  in  initiating

 

           criminal prosecution,  for  example,  over  3  months  delay  in

 

           reporting  the  matter  without  satisfactorily  explaining  the

 

           reasons for delay.

 

        The aforesaid are only illustrations  and  not  exhaustive  of  all

 

        conditions which may warrant preliminary inquiry.

 

   vii) While ensuring and protecting the rights of  the  accused  and  the

 

        complainant, a preliminary inquiry should be made time bound and in

 

        any case it should not exceed 7 days.  The fact of such  delay  and

 

        the causes of it must be reflected in the General Diary entry.

 

  viii) Since the General Diary/Station Diary/Daily Diary is the record  of

 

        all information received in a police station, we  direct  that  all

 

        information relating to cognizable offences, whether  resulting  in

 

        registration of FIR or leading to an inquiry, must  be  mandatorily

 

        and meticulously reflected in the said Diary and  the  decision  to

 

        conduct a preliminary inquiry must also be reflected, as  mentioned

 

        above.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

112)  With the above directions, we dispose of the  reference  made  to  us.

 

List all the matters before the appropriate Bench for disposal on merits.

 

 

 

REPORTABLE

 
IN THE SUPREME COURT OF INDIA

 

CRIMINAL ORIGINAL JURISDICTION

 
1 WRIT PETITION (CRIMINAL) NO. 68 OF 2008

 

 

 

 

 

Lalita Kumari …. Petitioner (s)

 

Versus

 

Govt. of U.P. & Ors. …. Respondent(s)

 

 

 
2

 

WITH

 

S.L.P. (Crl.) No. 5986 of 2006

 

S.L.P. (Crl.) No. 5200 of 2009

 

 

 

3 CRIMINAL APPEAL No. 1410 OF 2011

 
4

 
5 CRIMINAL APPEAL No. 1267 OF 2007

 
AND

 
CONTEMPT PETITION (C) NO. D26722 OF 2008 IN

 

6 WRIT PETITION (CRIMINAL) NO. 68 OF 2008

 

 

 

 

 

 

 

 

 

J U D G M E N T

 

 

 

P.Sathasivam, CJI.

 
1) The important issue which arises for consideration in the referred
matter is whether “a police officer is bound to register a First
Information Report (FIR) upon receiving any information relating to
commission of a cognizable offence under Section 154 of the Code of
Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has
the power to conduct a “preliminary inquiry” in order to test the veracity
of such information before registering the same?”

 
2) The present writ petition, under Article 32 of the Constitution, has
been filed by one Lalita Kumari (minor) through her father, viz., Shri
Bhola Kamat for the issuance of a writ of Habeas Corpus or direction(s) of
like nature against the respondents herein for the protection of his minor
daughter who has been kidnapped. The grievance in the said writ petition
is that on 11.05.2008, a written report was submitted by the petitioner
before the officer in-charge of the police station concerned who did not
take any action on the same. Thereafter, when the Superintendent of Police
was moved, an FIR was registered. According to the petitioner, even
thereafter, steps were not taken either for apprehending the accused or for
the recovery of the minor girl child.

 
3) A two-Judge Bench of this Court in, Lalita Kumari vs. Government of
Uttar Pradesh & Ors. (2008) 7 SCC 164, after noticing the disparity in
registration of FIRs by police officers on case to case basis across the
country, issued notice to the Union of India, the Chief Secretaries of all
the States and Union Territories and Director Generals of
Police/Commissioners of Police to the effect that if steps are not taken
for registration of FIRs immediately and the copies thereof are not handed
over to the complainants, they may move the Magistrates concerned by filing
complaint petitions for appropriate direction(s) to the police to register
the case immediately and for apprehending the accused persons, failing
which, contempt proceedings must be initiated against such delinquent
police officers if no sufficient cause is shown.

 
4) Pursuant to the above directions, when the matter was heard by the
very same Bench in Lalita Kumari vs. Government of Uttar Pradesh & Ors.
(2008) 14 SCC 337, Mr. S.B. Upadhyay, learned senior counsel for the
petitioner, projected his claim that upon receipt of information by a
police officer in-charge of a police station disclosing a cognizable
offence, it is imperative for him to register a case under Section 154 of
the Code and placed reliance upon two-Judge Bench decisions of this Court
in State of Haryana vs. Bhajan Lal 1992 Supp. (1) SCC 335, Ramesh Kumari
vs. State (NCT of Delhi) (2006) 2 SCC 677 and Parkash Singh Badal vs. State
of Punjab (2007) 1 SCC 1. On the other hand, Mr. Shekhar Naphade, learned
senior counsel for the State of Maharashtra submitted that an officer in-
charge of a police station is not obliged under law, upon receipt of
information disclosing commission of a cognizable offence, to register a
case rather the discretion lies with him, in appropriate cases, to hold
some sort of preliminary inquiry in relation to the veracity or otherwise
of the accusations made in the report. In support of his submission, he
placed reliance upon two-Judge Bench decisions of this Court in P.
Sirajuddin vs. State of Madras (1970) 1 SCC 595, Sevi vs. State of Tamil
Nadu 1981 Supp SCC 43, Shashikant vs. Central Bureau of Investigation
(2007) 1 SCC 630, and Rajinder Singh Katoch vs. Chandigarh Admn. (2007) 10
SCC 69. In view of the conflicting decisions of this Court on the issue,
the said bench, vide order dated 16.09.2008, referred the same to a larger
bench.

 
5) Ensuing compliance to the above direction, the matter pertaining to
Lalita Kumari was heard by a Bench of three-Judges in Lalita Kumari vs.
Government of Uttar Pradesh & Ors. (2012) 4 SCC 1 wherein, this Court,
after hearing various counsel representing Union of India, States and Union
Territories and also after adverting to all the conflicting decisions
extensively, referred the matter to a Constitution Bench while concluding
as under:-

 
“97. 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 CrPC,
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 inquiry before registering the FIR.

 
98. The 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 and Suresh Gupta
where preliminary inquiry had been postulated before registering an FIR.
Some counsel also submitted that the CBI Manual also envisages some kind
of preliminary inquiry before registering the FIR.

 
99. The issue which has arisen for consideration in these cases is of
great public importance. 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.

 
100. Consequently, we request the 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.”

 
6) Therefore, the only question before this Constitution Bench relates
to the interpretation of Section 154 of the Code and incidentally to
consider Sections 156 and 157 also.

 
7) Heard Mr. S.B. Upadhyay, learned senior counsel for the petitioner,
Mr. K.V. Vishwanathan, learned Additional Solicitor General for the Union
of India, Mr. Sidharth Luthra, learned Additional Solicitor General for the
State of Chhattisgarh, Mr. Shekhar Naphade, Mr. R.K. Dash, Ms. Vibha Datta
Makhija, learned senior counsel for the State of Maharashtra, U.P. and M.P.
respectively, Mr. G. Sivabalamurugan, learned counsel for the accused, Dr.
Ashok Dhamija, learned counsel for the CBI, Mr. Kalyan Bandopodhya, learned
senior counsel for the State of West Bengal, Dr. Manish Singhvi, learned
AAG for the State of Rajasthan and Mr. Sudarshan Singh Rawat.

 
8) In order to answer the main issue posed before this Bench, it is
useful to refer the following Sections of the Code:-

 
“154. Information in cognizable cases.— (1) Every information relating
to the commission of a cognizable offence, if given orally to an
officer in charge of a police station, shall be reduced to writing by
him or under his direction, and be read over to the informant; and
every such information, whether given in writing or reduced to writing
as aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this
behalf.

 
(2) A copy of the information as recorded under sub- section (1) shall
be given forthwith, free of cost, to the informant.

 
(3) Any person aggrieved by a refusal on the part of an officer in
charge of a police station to record the information referred to in
subsection (1) may send the substance of such information, in writing
and by post, to the Superintendent of Police concerned who, if
satisfied that such information discloses the commission of a
cognizable offence, shall either investigate the case himself or
direct an investigation to be made by any police officer subordinate
to him, in the manner provided by this Code, and such officer shall
have all the powers of an officer in charge of the police station in
relation to that offence.

 
156. Police officer’s power to investigate cognizable case. (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.

 
157. Procedure for investigation: (1) If, from information received or
otherwise, an officer in charge of a police station has reason to
suspect the commission of an offence which he is empowered under
Section 156 to investigate, he shall forthwith send a report of the
same to a Magistrate empowered to take cognizance of such offence upon
a police report and shall proceed in person, or shall depute one of
his subordinate officers not being below such rank as the State
Government may, by general or special order, prescribe in this behalf,
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:

 
Provided that-

 
(a) when information as to the commission of any such offence is given
against any person by name and the case is not of a serious nature,
the officer in charge of a police station need not proceed in person
or depute a subordinate officer to make an investigation on the spot;

 
(b) if it appears to the officer in charge of a police station that
there is no sufficient ground for entering on an investigation, he
shall not investigate the case.

 
Provided further that in relation to an offence of rape, the recording
of statement of the victim shall be conducted at the residence of the
victim or in the place of her choice and as far as practicable by a
woman police officer in the presence of her parents or guardian or
near relatives or social worker of the locality.

 
(2) In each of the cases mentioned in clauses (a) and (b) of the
proviso to sub- section (1), the officer in charge of the police
station shall state in his report his reasons for not fully complying
with the requirements of that sub-section, and, in the case mentioned
in clause (b) of the said proviso, the officer shall also forthwith
notify to the informant, if any, in such manner as may be prescribed
by the State Government, the fact that he will not investigate the
case or cause it to be investigated.”

 
Contentions:

 
9) At the foremost, Mr. S.B. Upadhyay, learned senior counsel, while
explaining the conditions mentioned in Section 154 submitted that Section
154(1) is mandatory as the use of the word ‘shall’ is indicative of the
statutory intent of the legislature. He also contended that there is no
discretion left to the police officer except to register an FIR. In
support of the above proposition, he relied on the following decisions,
viz., B. Premanand and Ors. vs. Mohan Koikal and Others (2011) 4 SCC 266,
M/s Hiralal Rattanlal Etc. Etc. vs. State of U.P. and Anr. Etc. Etc. (1973)
1 SCC 216 and Govindlal Chhaganlal Patel vs. Agricultural Produce Market
Committee, Godhra and Ors. (1975) 2 SCC 482.

 
10) Mr. Upadhyay, by further drawing our attention to the language used
in Section 154(1) of the Code, contended that it merely mentions
‘information’ without prefixing the words ‘reasonable’ or ‘credible’. In
order to substantiate this claim, he relied on the following decisions,
viz., Bhajan Lal (supra), Ganesh Bhavan Patel and Another vs. State of
Maharashtra (1978) 4 SCC 371, Aleque Padamsee and Others vs. Union of India
and Others (2007) 6 SCC 171, Ramesh Kumari (supra), Ram Lal Narang vs.
State (Delhi Administration) (1979) 2 SCC 322 and Lallan Chaudhary and
Others vs. State of Bihar and Another (2006) 12 SCC 229. Besides, he also
brought to light various adverse impacts of allowing police officers to
hold preliminary inquiry before registering an FIR.

 
11) Mr. K.V. Viswanathan, learned Additional Solicitor General appearing
on behalf of Union of India submitted that in all the cases where
information is received under Section 154 of the Code, it is mandatory for
the police to forthwith enter the same into the register maintained for the
said purpose, if the same relates to commission of a cognizable offence.
According to learned ASG, the police authorities have no discretion or
authority, whatsoever, to ascertain the veracity of such information before
deciding to register it. He also pointed out that a police officer, who
proceeds to the spot under Sections 156 and 157 of the Code, on the basis
of either a cryptic information or source information, or a rumour etc.,
has to immediately, on gathering information relating to the commission of
a cognizable offence, send a report (ruqqa) to the police station so that
the same can be registered as FIR. He also highlighted the scheme of the
Code relating to the registration of FIR, arrest, various protections
provided to the accused and the power of police to close investigation. In
support of his claim, he relied on various decisions of this Court viz.,
Bhajan Lal (supra), Ramesh Kumari (supra) and Aleque Padamsee (supra). He
also deliberated upon the distinguishable judgments in conflict with the
mandatory proposition, viz., State of Uttar Pradesh vs. Bhagwant Kishore
Joshi (1964) 3 SCR 71, P. Sirajuddin (supra), Sevi (supra), Shashikant
(supra), Rajinder Singh Katoch (supra), Jacob Mathew vs. State of Punjab &
Anr. (2005) 6 SCC 1. He concluded his arguments by saying that if any
information disclosing a cognizable offence is led 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. Further, he emphasized upon various
safeguards provided under the Code against filing a false case.

 
12) Dr. Ashok Dhamija, learned counsel for the CBI, submitted that the
use of the word “shall” under Section 154(1) of the Code clearly mandates
that if the information given to a police officer relates to the commission
of a cognizable offence, then it is mandatory for him to register the
offence. According to learned counsel, in such circumstances, there is no
option or discretion given to the police. He further contended that the
word “shall” clearly implies a mandate and is unmistakably indicative of
the statutory intent. What is necessary, according to him, is only that
the information given to the police must disclose commission of a
cognizable offence. He also contended that Section 154 of the Code uses
the word “information” simpliciter and does not use the qualified words
such as “credible information” or “reasonable complaint”. Thus, the
intention of the Parliament is unequivocally clear from the language
employed that a mere information relating to commission of a cognizable
offence is sufficient to register an FIR. He also relied on Bhajan Lal
(supra), Ramesh Kumari (supra), Aleque Padamsee (supra), Lallan Chaudhary
(supra), Superintendent of Police, CBI vs. Tapan Kumar Singh (2003) 6 SCC
175, M/s Hiralal Rattanlal (supra), B. Premanand (supra), Khub Chand vs.
State of Rajasthan AIR 1967 SC 1074, P. Sirajuddin (supra), Rajinder Singh
Katoch (supra), Bhagwant Kishore Joshi (supra), State of West Bengal vs.
Committee for Protection of Democratic Rights, West Bengal (2010) 3 SCC
571. He also pointed out various safeguards provided in the Code against
filing a false case. In the end, he concluded by reiterating that the
registration of FIR is mandatory under Section 154 of the Code, if the
information discloses commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation. Further, he also clarified
that the preliminary inquiry conducted by the CBI, under certain
situations, as provided under the CBI Crime Manual, stands on a different
footing due to the special provisions relating to the CBI contained in the
Delhi Special Police Establishment Act, 1946, which is saved under Sections
4(2) and 5 of the Code.

 
13) Mr. Kalyan Bandopadhyay, learned senior counsel appearing on behalf
of the State of West Bengal, submitted that whenever any information
relating to commission of a cognizable offence is received, it is the duty
of the officer in-charge of a police station to record the same and a copy
of such information, shall be given forthwith, free of cost, to the
informant under Section 154(2) of the Code. According to him, a police
officer has no other alternative but to record the information in relation
to a cognizable offence in the first instance. He also highlighted various
subsequent steps to be followed by the police officer pursuant to the
registration of an FIR. With regard to the scope of Section 154 of the
Code, he relied on H.N. Rishbud and Inder Singh vs. State of Delhi AIR 1955
SC 196, Bhajan Lal (supra), S.N. Sharma vs. Bipen Kumar Tiwari (1970) 1 SCC
653, Union of India vs. Prakash P. Hinduja (2003) 6 SCC 195, Sheikh Hasib
alias Tabarak vs. State of Bihar (1972) 4 SCC 773, Shashikant (supra),
Ashok Kumar Todi vs. Kishwar Jahan and Others (2011) 3 SCC 758, Padma
Sundara Rao (Dead) and Others vs. State of T.N. and Others (2002) 3 SCC
533, P. Sirajuddin (supra), Rajinder Singh Katoch (supra), Bhagwant Kishore
Joshi (supra) and Mannalal Khatic vs. The State AIR 1967 Cal 478.

 
14) Dr. Manish Singhvi, learned Additional Advocate General for the State
of Rajasthan, submitted that Section 154(1) of the Code mandates compulsory
registration of FIR. He also highlighted various safeguards inbuilt in the
Code for lodging of false FIRs. He also pointed out that the only
exception relates to cases arising under the Prevention of Corruption Act
as, in those cases, sanction is necessary before taking cognizance by the
Magistrates and the public servants are accorded some kind of protection so
that vexatious cases cannot be filed to harass them.

 
15) Mr. G. Sivabalamurugan, learned counsel for the appellant in Criminal
Appeal No. 1410 of 2011, after tracing the earlier history, viz., the
relevant provisions in the Code of Criminal Procedure of 1861, 1872, 1882
and 1898 stressed as to why the compulsory registration of FIR is
mandatory. He also highlighted the recommendations of the Report of the
41st Law Commission and insertion of Section 13 of the Criminal Law
(Amendment) Act, 2013 with effect from 03.02.2013.

 
16) Mr. R.K. Dash, learned senior counsel appearing for the State of
Uttar Pradesh, though initially commenced his arguments by asserting that
in order to check unnecessary harassment to innocent persons at the behest
of unscrupulous complainants, it is desirable that a preliminary inquiry
into the allegations should precede with the registration of FIR but
subsequently after considering the salient features of the Code, various
provisions like Sections 2(4) (h), 156(1), 202(1), 164, various provisions
from the U.P. Police Regulations, learned senior counsel contended that in
no case recording of FIR should be deferred till verification of its truth
or otherwise in case of information relating to a cognizable offence. In
addition to the same, he also relied on various pronouncements of this
Court, such as, Mohindro vs. State of Punjab (2001) 9 SCC 581, Ramesh
Kumari (supra), Bhajan Lal (supra), Parkash Singh Badal (supra), Munna Lal
vs. State of Himachal Pradesh 1992 Crl. L.J. 1558, Giridhari Lal Kanak vs.
State and others 2002 Crl. L.J. 2113 and Katteri Moideen Kutty Haji vs.
State of Kerala 2002 (2) Crimes 143. Finally, he concluded that when the
statutory provisions, as envisaged in Chapter XII of the Code, are clear
and unambiguous, it would not be legally permissible to allow the police to
make a preliminary inquiry into the allegations before registering an FIR
under Section 154 of the Code.

 
17) Mr. Sidharth Luthra, learned Additional Solicitor General appearing
for the State of Chhattisgarh, commenced his arguments by emphasizing the
scope of reference before the Constitution Bench. Subsequently, he
elaborated on various judgments which held that an investigating officer,
on receiving information of commission of a cognizable offence under
Section 154 of the Code, has power to conduct preliminary inquiry before
registration of FIR, viz., Bhagwant Kishore Joshi (supra), P. Sirajuddin
(supra), Sevi (supra) and Rajinder Singh Katoch (supra). Concurrently, he
also brought to our notice the following decisions, viz., Bhajan Lal
(supra), Ramesh Kumari (supra), Parkash Singh Badal (supra), and Aleque
Padamsee (supra), which held that a police officer is duty bound to
register an FIR, upon receipt of information disclosing commission of a
cognizable offence and the power of preliminary inquiry does not exist
under the mandate of Section 154. Learned ASG has put forth a comparative
analysis of Section 154 of the Code of Criminal Procedure of 1898 and of
1973. He also highlighted that every activity which occurs in a police
station [Section 2(s)] is entered in a diary maintained at the police
station which may be called as the General Diary, Station Diary or Daily
Diary. He underlined the relevance of General Diary by referring to
various judicial decisions such as Tapan Kumar Singh (supra), Re:
Subbaratnam & Ors. AIR 1949 Madras 663. He further pointed out that,
presently, throughout the country, in matrimonial, commercial, medical
negligence and corruption related offences, there exist provisions for
conducting an inquiry or preliminary inquiry by the police, without/before
registering an FIR under Section 154 of the Code. He also brought to our
notice various police rules prevailing in the States of Punjab, Rajasthan,
U.P., Madhya Pradesh, Kolkata, Bombay, etc., for conducting an inquiry
before registering an FIR. Besides, he also attempted to draw an inference
from the Crime Manual of the CBI to highlight that a preliminary inquiry
before registering a case is permissible and legitimate in the eyes of law.
Adverting to the above contentions, he concluded by pleading that
preliminary inquiry before registration of an FIR should be held
permissible. Further, he emphasized that the power to carry out an inquiry
or preliminary inquiry by the police, which precedes the registration of
FIR will eliminate the misuse of the process, as the registration of FIR
serves as an impediment against a person for various important activities
like applying for a job or a passport, etc. Learned ASG further requested
this Court to frame guidelines for certain category of cases in which
preliminary inquiry should be made.

 
18) Mr. Shekhar Naphade, learned senior counsel appearing on behalf of
the State of Maharashtra, submitted that ordinarily the Station House
Officer (SHO) should record an FIR upon receiving a complaint disclosing
the ingredients of a cognizable offence, but in certain situations, in case
of doubt about the correctness or credibility of the information, he should
have the discretion of holding a preliminary inquiry and thereafter, if he
is satisfied that there is a prima facie case for investigation, register
the FIR. A mandatory duty of registering FIR should not be cast upon him.
According to him, this interpretation would harmonize two extreme
positions, viz., the proposition that the moment the complaint disclosing
ingredients of 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 of the Constitution of India,
similarly, the other extreme point of view is that the police officer must
investigate the case substantially before registering an FIR. Accordingly,
he pointed out that both must be rejected and a middle path must be chosen.
He also submitted the following judgments, viz., Bhajan Lal (supra),
Ramesh Kumari (supra), Parkash Singh Badal (supra), and Aleque Padamsee
(supra) wherein it has been held that if a complaint alleging commission of
a cognizable offence is received in the police station, then the SHO has no
other option but to register an FIR under Section 154 of the Code.
According to learned senior counsel, these verdicts require reconsideration
as they have interpreted Section 154 de hors the other provisions of the
Code and have failed to consider the impact of Article 21 on Section 154 of
the Code.

 
19) Alongside, he pointed out the following decisions, viz., Rajinder
Singh Katoch (supra), P. Sirajuddin (supra), Bhagwant Kishore Joshi (supra)
and Sevi (supra), which hold that before registering an FIR under Section
154 of the Code, it is open to the police officer to hold a preliminary
inquiry to ascertain whether there is a prima facie case of commission of a
cognizable offence or not. According to learned senior counsel, Section
154 of the Code forms part of a chain of statutory provisions relating to
investigation and, therefore, the scheme of provisions of Sections 41, 157,
167, 169, etc., must have a bearing on the interpretation of Section 154.
In addition, he emphasized that giving a literal interpretation would
reduce the registration of FIR to a mechanical act. Parallelly, he
underscored the impact of Article 21 on Section 154 of the Code by
referring to Maneka Gandhi vs. Union of India (1978) 1 SCC 248, wherein
this Court has applied Article 21 to several provisions relating to
criminal law. This Court has also stated that the expression “law”
contained in Article 21 necessarily postulates law which is reasonable and
not merely statutory provisions irrespective of its reasonableness or
otherwise. Learned senior counsel pleaded that in the light of Article 21,
provisions of Section 154 of the Code must be read down to mean that before
registering an FIR, the police officer must be satisfied that there is a
prima facie case for investigation. He also emphasized that Section 154
contains implied power of the police officer to hold preliminary inquiry if
he bona fide possess serious doubts about the credibility of the
information given to him. By pointing out Criminal Law (Amendment) Act,
2013, particularly, Section 166A, Mr. Naphade contended that as far as
other cognizable offences (apart from those mentioned in Section 166A) are
concerned, police has a discretion to hold preliminary inquiry if there is
some doubt about the correctness of the information.

 
20) In case of allegations relating to medical negligence on the part of
the doctors, it is pointed out by drawing our attention to some of the
decisions of this Court viz., Tapan Kumar Singh (supra), Jacob Mathew
(supra) etc., that no medical professional should be prosecuted merely on
the basis of the allegations in the complaint. By pointing out various
decisions, Mr. Naphade emphasized that in appropriate cases, it would be
proper for a police officer, on receipt of a complaint of a cognizable
offence, to satisfy himself that at least prima facie allegations levelled
against the accused in the complaint are credible. He also contended that
no single provision of a statute can be read and interpreted in isolation,
but the statute must be read as a whole. Accordingly, he prayed that the
provisions of Sections 41, 57, 156, 157, 159, 167, 190, 200 and 202 of the
Code must be read together. He also pointed out that Section 154(3) of the
Code enables any complainant whose complaint is not registered as an FIR by
the officer in-charge of the police station to approach the higher police
officer for the purpose of getting his complaint registered as an FIR and
in such a case, the higher police officer has all the powers of recording
an FIR and directing investigation into the matter. In addition to the
remedy available to an aggrieved person of approaching higher police
officer, he can also move the concerned Magistrate by making a complaint
under Section 190 thereof. He further emphasized that the fact that the
legislature has provided adequate remedies against refusal to register FIR
and to hold investigation in cognizable offences, is indicative of
legislative intent that the police officer is not bound to record FIR
merely because the ingredients of a cognizable offence are disclosed in the
complaint, if he has doubts about the veracity of the complaint. He also
pointed out that the word “shall” used in the statute does not always mean
absence of any discretion in the matter. For the said proposition, he also
highlighted that this Court has preferred the rule of purposive
interpretation to the rule of literal interpretation for which he relied on
Chairman Board of Mining Examination and Chief Inspector of Mines and
Another vs. Ramjee (1977) 2 SCC 256, Lalit Mohan Pandey vs. Pooran Singh
(2004) 6 SCC 626, Prativa Bose vs. Kumar Rupendra Deb Raikat (1964) 4 SCR
69. He further pointed out that it is impossible to put the provisions of
Section 154 of the Code in a straightjacket formula. He also prayed for
framing of some guidelines as regards registration or non-registration of
FIR. Finally, he pointed out that the requirement of Article 21 is that
the procedure should be fair and just. According to him, if the police
officer 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. Thus, he
concluded his arguments by pleading that Section 154 of the Code must be
interpreted in the light of Article 21.

 
21) Ms. Vibha Datta Makhija, learned senior counsel appearing for the
State of Madhya Pradesh submitted that a plain reading of Section 154 and
other provisions of the Code shows that it may not be mandatory but is
absolutely obligatory on the part of the police officer to register an FIR
prior to taking any steps or conducting investigation into a cognizable
offence. She further pointed out that after receiving the first
information of an offence and prior to the registration of the said report
(whether oral or written) in the First Information Book maintained at the
police station under various State Government regulations, only some
preliminary inquiry or investigative steps are permissible under the
statutory framework of the Code to the extent as is justifiable and is
within the window of statutory discretion granted strictly for the purpose
of ascertaining whether there has been a commission or not of a cognizable
offence. Hence, an investigation, culminating into a Final Report under
Section 173 of the Code, cannot be called into question and be quashed due
to the reason that a part of the inquiry, investigation or steps taken
during investigation are conducted after receiving the first information
but prior to registering the same unless it is found that the said
investigation is unfair, illegal, mala fide and has resulted in grave
prejudice to the right of the accused to fair investigation. In support of
the above contentions, she traced the earlier provisions of the Code and
current statutory framework, viz., Criminal Law (Amendment) Act, 2013 with
reference to various decisions of this Court. She concluded that Section
154 of the Code leaves no area of doubt that where a cognizable offence is
disclosed, there is no discretion on the part of the police to record or
not to record the said information, however, it may differ from case to
case.

 
22) The issues before the Constitution Bench of this Court arise out of
two main conflicting areas of concern, viz.,

 
(i) Whether the immediate non-registration of FIR leads to scope for
manipulation by the police which affects the right of the
victim/complainant to have a complaint immediately investigated upon
allegations being made; and

 
(ii) Whether in cases where the complaint/information does not clearly
disclose the commission of a cognizable offence but the FIR is
compulsorily registered then does it infringe the rights of an
accused.

 
Discussion:

 
23) The FIR is a pertinent document in the criminal law procedure of our
country and its main object from the point of view of the informant is to
set the criminal law in motion and from the point of view of the
investigating authorities is to obtain information about the alleged
criminal activity so as to be able to take suitable steps to trace and to
bring to book the guilty.

 
24) Historical experience has thrown up cases from both the sides where
the grievance of the victim/informant of non-registration of valid FIRs as
well as that of the accused of being unnecessarily harassed and
investigated upon false charges have been found to be correct.

 
25) An example of the first category of cases is found in State of
Maharashtra vs. Sarangdharsingh Shivdassingh Chavan & Anr. (2011) 1 SCC 577
wherein a writ petition was filed challenging the order of the Collector
in the District of Buldhana directing not to register any crime against Mr.
Gokulchand Sananda, without obtaining clearance from the District Anti-
Money Lending Committee and the District Government Pleader. From the
record, it was revealed that out of 74 cases, only in seven cases, charge
sheets were filed alleging illegal moneylending. This Court found that
upon instructions given by the Chief Minister to the District Collector,
there was no registration of FIR of the poor farmers. In these
circumstances, this Court held the said instructions to be ultra vires and
quashed the same. It is argued that cases like above exhibit the mandatory
character of Section 154, and if it is held otherwise, it shall lead to
grave injustice.

 
26) In Aleque Padamsee (supra), while dealing with the issue whether it
is within the powers of courts to issue a writ directing the police to
register a First Information Report in a case where it was alleged that the
accused had made speeches likely to disturb communal harmony, this Court
held that “the police officials ought to register the FIR whenever facts
brought to their notice show that a cognizable offence has been made out.
In case the police officials fail to do so, the modalities to be adopted
are as set out in Section 190 read with Section 200 of the Code.” As such,
the Code itself provides several checks for refusal on the part of the
police authorities under Section 154 of the Code.

 
27) However, on the other hand, there are a number of cases which exhibit
that there are instances where the power of the police to register an FIR
and initiate an investigation thereto are misused where a cognizable
offence is not made out from the contents of the complaint. A significant
case in this context is the case of Preeti Gupta vs. State of Jharkhand
(2010) 7 SCC 667 wherein this Court has expressed its anxiety over misuse
of Section 498-A of the Indian Penal Code, 1860 (in short ‘the IPC’) with
respect to which a large number of frivolous reports were lodged. This
Court expressed its desire that the legislature must take into
consideration the informed public opinion and the pragmatic realities to
make necessary changes in law.

 
28) The abovesaid judgment resulted in the 243rd Report of the Law
Commission of India submitted on 30th August, 2012. The Law Commission, in
its Report, concluded that though the offence under Section 498-A could be
made compoundable, however, the extent of misuse was not established by
empirical data, and, thus, could not be a ground to denude the provision of
its efficacy. The Law Commission also observed that the law on the
question whether the registration of FIR could be postponed for a
reasonable time is in a state of uncertainty and can be crystallized only
upon this Court putting at rest the present controversy.

 
29) In order to arrive at a conclusion in the light of divergent views on
the point and also to answer the above contentions, it is pertinent to have
a look at the historical background of the Section and corresponding
provisions that existed in the previous enactments of the Code of Criminal
Procedure.

 
Code of Criminal Procedure, 1861

 
“139. Every complaint or information preferred to an officer in charge
of a police station, shall be reduced into writing and the substance
thereof shall be entered in a diary to be kept by such officer, in
such form as shall be prescribed by the local government.”

 
Code of Criminal Procedure, 1872

 
“112. Every complaint preferred to an officer in charge of a police
station, shall be reduced into writing, and shall be signed, sealed or
marked by the person making it; and the substance thereof shall be
entered in a book to be kept by such officer in the form prescribed by
the local government.”

 
Code of Criminal Procedure, 1882

 
“154. Every information relating to the commission of a cognizable
offence if given orally to an officer in charge of a police station,
shall be reduced to writing by him, or under his direction, and be
read over to the informant; and every such information, whether given
in writing or reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be entered in a book
to be kept by such form as the government may prescribe in this
behalf.”

 

 

 

 

 
Code of Criminal Procedure, 1898

 
“154. Every information relating to the commission of a cognizable
offence if given orally to an officer in charge of a police station,
shall be reduced to writing by him or under his direction, and be read
over to the informant; and every such information, whether given in
writing or reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be entered in a book
to be kept by such officer in such form as the Government may
prescribe in this behalf.”

 
Code of Criminal Procedure, 1973

 
“154. Information in cognizable cases: 1) Every information relating
to the commission of a cognizable offence, it given orally to an
officer in charge of a police station, shall be reduced to writing by
him or under his direction, and be read over to the informant; and
every such information, whether given in writing or reduced to writing
as aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this
behalf.

 
[Provided that if the information is given by the woman against whom
an offence under Sections 326A, 326B, 354, 354A, 354B, 354C, 354D,
376, 376A, 376B, 376C, 376D, 376E or Section 509 of the Indian Penal
Code is alleged to have been committed or attempted, then such
information shall be recorded by a woman police officer or any woman
officer:-

 
Provided further that:-

 
(a) in the event that the person against whom an offence under
Sections 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D,
376E or Section 509 of the Indian Penal code is alleged to have been
committed or attempted is temporarily or permanently mentally or
physically disabled then such information shall be recorded by a
police officer, at the residence of the person seeking to report such
offence or at a convenient place of such person’s choice, in the
presence of an interpreter or a special educator, as the case may be;

 
(b) the recording of such information shall be videographed;

 
(c) the police officer shall get the statement of the person
recorded by a Judicial Magistrate under clause (a) of sub-Section (5A)
of Section 164 as soon as possible.]

 
(Inserted by Section 13 of ‘The Criminal Law (Amendment) Act, 2013
w.e.f. 03.02.2013)

 
(2) A copy of the information as recorded under sub- section (1) shall
be given forthwith, free of cost, to the informant.

 
(3) Any person aggrieved by a refusal on the part of an officer in
charge of a police station to record the information referred to in
subsection (1) may send the substance of such information, in writing
and by post, to the Superintendent of Police concerned who, if
satisfied that such information discloses the commission of a
cognizable offence, shall either investigate the case himself or
direct an investigation to be made by any police officer subordinate
to him, in the manner provided by this Code, and such officer shall
have all the powers of an officer in charge of the police station in
relation to that offence.

 
A perusal of the above said provisions manifests the legislative
intent in both old codes and the new code for compulsory registration of
FIR in a case of cognizable offence without conducting any Preliminary
Inquiry.

 
30) The precursor to the present Code of 1973 is the Code of 1898 wherein
substantial changes were made in the powers and procedure of the police to
investigate. The starting point of the powers of police was changed from
the power of the officer in-charge of a police station to investigate into
a cognizable offence without the order of a Magistrate, to the reduction of
the first information regarding commission of a cognizable offence, whether
received orally or in writing, into writing and into the book separately
prescribed by the Provincial government for recording such first
information.

 
31) As such, a significant change that took place by way of the 1898 Code
was with respect to the placement of Section 154, i.e., the provision
imposing requirement of recording the first information regarding
commission of a cognizable offence in the special book prior to Section
156, i.e., the provision empowering the police officer to investigate a
cognizable offence. As such, the objective of such placement of provisions
was clear which was to ensure that the recording of the first information
should be the starting point of any investigation by the police. In the
interest of expediency of investigation since there was no safeguard of
obtaining permission from the Magistrate to commence an investigation, the
said procedure of recording first information in their books along with the
signature/seal of the informant, would act as an “extremely valuable
safeguard” against the excessive, mala fide and illegal exercise of
investigative powers by the police.

 
32) Provisions contained in Chapter XII of the Code deal with information
to the police and their powers to investigate. The said Chapter sets out
the procedure to be followed during investigation. The objective to be
achieved by the procedure prescribed in the said Chapter is to set the
criminal law in motion and to provide for all procedural safeguards so as
to ensure that the investigation is fair and is not mala fide and there is
no scope of tampering with the evidence collected during the investigation.

 

 

 

33) In addition, Mr. Shekhar Naphade, learned senior counsel contended
that insertion of Section 166A in IPC indicates that registration of FIR is
not compulsory for all offences other than what is specified in the said
Section. By Criminal Law (Amendment) Act 2013, Section 166A was inserted in
Indian Penal Code which reads as under:-

 
“Section 166A—Whoever, being a public servant.—

 
(a) knowingly disobeys any direction of the law which prohibits him
from requiring the attendance at any place of any person for the
purpose of investigation into an offence or any other matter, or

 
(b) knowingly disobeys, to the prejudice of any person, any other
direction of the law regulating the manner in which he shall conduct
such investigation, or

 
(c) fails to record any information given to him under sub-section (1)
of Section 154 of the Code of Criminal Procedure, 1973, in relation to
cognizable offence punishable under Section 326A, Section 326B,
Section 354, Section 354B, Section 370, Section 370A, Section 376,
Section 376A, Section 376B, Section 376C, Section 376D, Section 376E,
Section 509 shall be punished with rigorous imprisonment for a term
which shall not be less than six months but which may extend to two
years and shall also be liable to fine.”

 

 

 

 

 
Section 166A(c) lays down that if a public servant (Police Officer) fails
to record any information given to him under Section 154(1) of the Code in
relation to cognizable offences punishable under Sections 326A, 326B, 354,
354B, 370, 370A, 376, 376A 376B, 376C, 376D, 376E or Section 509, he shall
be punished with rigorous imprisonment for a term which shall not be less
than six months but may extend to two years and shall also be liable to
fine. Thus, it is the stand of learned counsel that this provision clearly
indicates that registration of FIR is imperative and police officer has no
discretion in the matter in respect of offences specified in the said
section. Therefore, according to him, the legislature accepts that as far
as other cognizable offences are concerned, police has discretion to hold a
preliminary inquiry if there is doubt about the correctness of the
information.

 
34) Although, the argument is as persuasive as it appears, yet, we doubt
whether such a presumption can be drawn in contravention to the unambiguous
words employed in the said provision. Hence, insertion of Section 166A in
the IPC vide Criminal Law (Amendment) Act 2013, must be read in consonance
with the provision and not contrary to it. The insertion of Section 166A
was in the light of recent unfortunate occurrence of offences against
women. The intention of the legislature in putting forth this amendment
was to tighten the already existing provisions to provide enhanced
safeguards to women. Therefore, the legislature, after noticing the
increasing crimes against women in our country, thought it appropriate to
expressly punish the police officers for their failure to register FIRs in
these cases. No other meaning than this can be assigned to for the
insertion of the same.

 
35) With this background, let us discuss the submissions in the light of
various decisions both in favour and against the referred issue.

 
Interpretation of Section 154:

 
36) It may be mentioned in this connection that the first and foremost
principle of interpretation of a statute in every system of interpretation
is the literal rule of interpretation. All that we have to see at the very
outset is what does the provision say? As a result, the language employed
in Section 154 is the determinative factor of the legislative intent. A
plain reading of Section 154(1) of the Code provides that any information
relating to the commission of a cognizable offence if given orally to an
officer-in-charge of a police station shall be reduced into writing by him
or under his direction. There is no ambiguity in the language of Section
154(1) of the Code.

 
37) At this juncture, it is apposite to refer to the following
observations of this Court in M/s Hiralal Rattanlal (supra) which are as
under:

 
“22…In construing a statutory provision, the first and the
foremost rule of construction is the literary construction. All that
we have 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, we need not call into aid the other rules
of construction of statutes. The other rules of construction of
statutes are called into aid only when the legislative intention is
not clear…”

 
The above decision was followed by this Court in B. Premanand (supra) and
after referring the abovesaid observations in the case of Hiralal Rattanlal
(supra), this Court observed as under:

 
“9. It may be mentioned in this connection that the first and
foremost principle of interpretation of a statute in every system of
interpretation is the literal rule of interpretation. The other rules
of interpretation e.g. the mischief rule, purposive interpretation,
etc. can only be resorted to when the plain words of a statute are
ambiguous or lead to no intelligible results or if read literally
would nullify the very object of the statute. Where the words of a
statute are absolutely clear and unambiguous, recourse cannot be had
to the principles of interpretation other than the literal rule, vide
Swedish Match AB v. SEBI (2004) 11 SCC 641.

 

 

 

 

 

The language of Section 154(1), therefore, admits of no other
construction but the literal construction.

 
38) The legislative intent of Section 154 is vividly elaborated in Bhajan
Lal (supra) which is as under:-

 
“30. 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
incharge 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.

 
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 concerned police
officer cannot embark upon an inquiry 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 information and that information must
disclose a cognizable offence.

 
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.

 
39) Consequently, the condition that is sine qua non for recording an FIR
under Section 154 of the Code is that there must be information and that
information must disclose a cognizable offence. If any information
disclosing a cognizable offence is led before an officer in charge of the
police station satisfying the requirement of Section 154(1), 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. The provision of Section 154 of the Code is mandatory and
the concerned officer is duty bound to register the case on the basis of
information disclosing a cognizable offence. Thus, the plain words of
Section 154(1) of the Code have to be given their literal meaning.

 
‘Shall’

 
40) The use of the word “shall” in Section 154(1) of the Code clearly
shows the legislative intent that it is mandatory to register an FIR if the
information given to the police discloses the commission of a cognizable
offence.

 
41) In Khub Chand (supra), this Court observed as under:

 
“7…The term “shall” in its ordinary significance is mandatory and
the court shall ordinarily give that interpretation to that term
unless such an interpretation leads to some absurd or inconvenient
consequence or be at variance with the intent of the legislature, to
be collected from other parts of the Act. The construction of the said
expression depends on the provisions of a particular Act, the setting
in which the expression appears, the object for which the direction is
given, the consequences that would flow from the infringement of the
direction and such other considerations…”

 

 

 

 

 
42) It is relevant to mention that the object of using the word “shall”
in the context of Section 154(1) of the Code is to ensure that all
information relating to all cognizable offences is promptly registered by
the police and investigated in accordance with the provisions of law.

 
43) Investigation of offences and prosecution of offenders are the duties
of the State. For “cognizable offences”, a duty has been cast upon the
police to register FIR and to conduct investigation except as otherwise
permitted specifically under Section 157 of the Code. If a discretion,
option or latitude is allowed to the police in the matter of registration
of FIRs, it can have serious consequences on the public order situation and
can also adversely affect the rights of the victims including violating
their fundamental right to equality.

 
44) Therefore, the context in which the word “shall” appears in Section
154(1) of the Code, the object for which it has been used and the
consequences that will follow from the infringement of the direction to
register FIRs, all these factors clearly show that the word “shall” used in
Section 154(1) needs to be given its ordinary meaning of being of
“mandatory” character. The provisions of Section 154(1) of the Code, read
in the light of the statutory scheme, do not admit of conferring any
discretion on the officer in-charge of the police station for embarking
upon a preliminary inquiry prior to the registration of an FIR. It is
settled position of law that if the provision is unambiguous and the
legislative intent is clear, the court need not call into it any other
rules of construction.

 
45) In view of the above, the use of the word ‘shall’ coupled with the
Scheme of the Act lead to the conclusion that the legislators intended that
if an information relating to commission of a cognizable offence is given,
then it would mandatorily be registered by the officer in-charge of the
police station. Reading ‘shall’ as ‘may’, as contended by some counsel,
would be against the Scheme of the Code. Section 154 of the Code should be
strictly construed and the word ‘shall’ should be given its natural
meaning. The golden rule of interpretation can be given a go-by only in
cases where the language of the section is ambiguous and/or leads to an
absurdity.

 
46) In view of the above, we are satisfied that Section 154(1) of the
Code does not have any ambiguity in this regard and is in clear terms. It
is relevant to mention that Section 39 of the Code casts a statutory duty
on every person to inform about commission of certain offences which
includes offences covered by Sections 121 to 126, 302, 64-A, 382, 392 etc.,
of the IPC. It would be incongruous to suggest that though it is the duty
of every citizen to inform about commission of an offence, but it is not
obligatory on the officer-incharge of a Police Station to register the
report. The word ‘shall’ occurring in Section 39 of the Code has to be
given the same meaning as the word ‘shall’ occurring in Section 154(1) of
the Code.

 
‘Book’/‘Diary’

 
47) It is contented by learned ASG appearing for the State of
Chhattisgarh that the recording of first information under Section 154 in
the ‘book’ is subsequent to the entry in the General Diary/Station
Diary/Daily Diary, which is maintained in police station. Therefore,
according to learned ASG, first information is a document at the earliest
in the general diary, then if any preliminary inquiry is needed the police
officer may conduct the same and thereafter the information will be
registered as FIR.

 
48) This interpretation is wholly unfounded. The First Information Report
is in fact the “information” that is received first in point of time, which
is either given in writing or is reduced to writing. It is not the
“substance” of it, which is to be entered in the diary prescribed by the
State Government. The term ‘General Diary’ (also called as ‘Station Diary’
or ‘Daily Diary’ in some States) is maintained not under Section 154 of the
Code but under the provisions of Section 44 of the Police Act, 1861 in the
States to which it applies, or under the respective provisions of the
Police Act(s) applicable to a State or under the Police Manual of a State,
as the case may be. Section 44 of the Police Act, 1861 is reproduced
below:-

 
“44. Police-officers to keep diary.—It shall be the duty of
every officer in charge of a police-station to keep a general
diary in such form as shall, from time to time, be prescribed by
the State Government and to record therein all complaints and
charged preferred, the names of all persons arrested, the names
of the complainants, the offences charged against them, the
weapons or property that shall have been taken from their
possession or otherwise, and the names of the witnesses who
shall have been examined. The Magistrate of the district shall
be at liberty to call for any inspect such diary.”

 
49) It is pertinent to note that during the year 1861, when the aforesaid
Police Act, 1861 was passed, the Code of Criminal Procedure, 1861 was also
passed. Section 139 of that Code dealt with registration of FIR and this
Section is also referred to the word “diary”, as can be seen from the
language of this Section, as reproduced below:-

 
“139. Every complaint or information preferred to an officer in charge
of a Police Station, shall be reduced into writing, and the substance
thereof shall be entered in a diary to be kept by such officer, in
such form as shall be prescribed by the local government.”

 
Thus, Police Act, 1861 and the Code of Criminal Procedure, 1861, both of
which were passed in the same year, used the same word “diary”.

 
50) However, in the year 1872, a new Code came to be passed which was
called the Code of Criminal Procedure, 1872. Section 112 of the Code dealt
with the issue of registration of FIR and is reproduced below:-

 
“112. Every complaint preferred to an officer in charge of a Police
station shall be reduced into writing, and shall be signed, sealed, or
marked by the person making it; and the substance thereof shall be
entered in a book to be kept by such officer in the form prescribed by
the Local Government.”

 

 

 

 

 
51) It is, thus, clear that in the Code of Criminal Procedure, 1872, a
departure was made and the word ‘book’ was used in place of ‘diary’. The
word ‘book’ clearly referred to FIR book to be maintained under the Code
for registration of FIRs.

 
52) The question that whether the FIR is to be recorded in the FIR Book
or in General Diary, is no more res integra. This issue has already been
decided authoritatively by this Court.

 
53) In Madhu Bala vs. Suresh Kumar (1997) 8 SCC 476, this Court has held
that FIR must be registered in the FIR Register which shall be a book
consisting of 200 pages. It is true that the substance of the information
is also to be mentioned in the Daily diary (or the general diary). But,
the basic requirement is to register the FIR in the FIR Book or Register.
Even in Bhajan Lal (supra), this Court held that FIR has to be entered in a
book in a form which is commonly called the First Information Report.

 
54) It is thus clear that registration of FIR is to be done in a book
called FIR book or FIR Register. Of course, in addition, the gist of the
FIR or the substance of the FIR may also be mentioned simultaneously in the
General Diary as mandated in the respective Police Act or Rules, as the
case may be, under the relevant State provisions.

 
55) The General Diary is a record of all important transactions/events
taking place in a police station, including departure and arrival of police
staff, handing over or taking over of charge, arrest of a person, details
of law and order duties, visit of senior officers etc. It is in this
context that gist or substance of each FIR being registered in the police
station is also mentioned in the General Diary since registration of FIR
also happens to be a very important event in the police station. Since
General Diary is a record that is maintained chronologically on day-to-day
basis (on each day, starting with new number 1), the General Diary entry
reference is also mentioned simultaneously in the FIR Book, while FIR
number is mentioned in the General Diary entry since both of these are
prepared simultaneously.

 
56) It is relevant to point out that FIR Book is maintained with its
number given on an annual basis. This means that each FIR has a unique
annual number given to it. This is on similar lines as the Case Numbers
given in courts. Due to this reason, it is possible to keep a strict
control and track over the registration of FIRs by the supervisory police
officers and by the courts, wherever necessary. Copy of each FIR is sent
to the superior officers and to the concerned Judicial Magistrate.

 
57) On the other hand, General Diary contains a huge number of other
details of the proceedings of each day. Copy of General Diary is not sent
to the Judicial Magistrate having jurisdiction over the police station,
though its copy is sent to a superior police officer. Thus, it is not
possible to keep strict control of each and every FIR recorded in the
General Diary by superior police officers and/or the court in view of
enormous amount of other details mentioned therein and the numbers changing
every day.

 
58) The signature of the complainant is obtained in the FIR Book as and
when the complaint is given to the police station. On the other hand,
there is no such requirement of obtaining signature of the complainant in
the general diary. Moreover, at times, the complaint given may consist of
large number of pages, in which case it is only the gist of the complaint
which is to be recorded in the General Diary and not the full complaint.
This does not fit in with the suggestion that what is recorded in General
Diary should be considered to be the fulfillment/compliance of the
requirement of Section 154 of registration of FIR. In fact, the usual
practice is to record the complete complaint in the FIR book (or annex it
with the FIR form) but record only about one or two paragraphs (gist of the
information) in the General Diary.

 
59) In view of the above, it is useful to point out that the Code was
enacted under Entry 2 of the Concurrent List of the Seventh Schedule to the
Constitution which is reproduced below:-

 
“2. Criminal procedure, including all matters included in the Code of
Criminal Procedure at the commencement of this Constitution.”

 
On the other hand, Police Act, 1861 (or other similar Acts in respective
States) were enacted under Entry 2 of the State List of the Seventh
Schedule to the Constitution, which is reproduced below:-

 
“2. Police (including railway and village police) subject to the
provisions of Entry 2A of List I.”

 
60) Now, at this juncture, it is pertinent to refer Article 254(1) of the
Constitution, which lays down the provisions relating to inconsistencies
between the laws made by the Parliament and the State Legislatures.
Article 254(1) is reproduced as under:-

 
“254. Inconsistency between laws made by Parliament and laws made by
the Legislatures of States

 
(1) If any provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an existing
law with respect to one of the matters enumerated in the Concurrent
List, then, subject to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature of the State shall,
to the extent of the repugnancy, be void.”

 

 

 

 

 
Thus it is clear from the mandate of Article 254(1) of the Constitution
that if there is any inconsistency between the provisions of the Code and
the Police Act, 1861, the provisions of the Code will prevail and the
provisions of the Police Act would be void to the extent of the repugnancy.

 
61) If at all, there is any inconsistency in the provisions of Section
154 of the Code and Section 44 of the Police Act, 1861, with regard to the
fact as to whether the FIR is to be registered in the FIR book or in the
General Diary, the provisions of Section 154 of the Code will prevail and
the provisions of Section 44 of the Police Act, 1861 (or similar provisions
of the respective corresponding Police Act or Rules in other respective
States) shall be void to the extent of the repugnancy. Thus, FIR is to be
recorded in the FIR Book, as mandated under Section 154 of the Code, and it
is not correct to state that information will be first recorded in the
General Diary and only after preliminary inquiry, if required, the
information will be registered as FIR.

 
62) However, this Court in Tapan Kumar Singh (supra), held that a GD
entry may be treated as First information in an appropriate case, where it
discloses the commission of a cognizable offence. It was held as under:

 
“15. It is the correctness of this finding which is assailed before us
by the appellants. They contend that the information recorded in the
GD entry does disclose the commission of a cognizable offence. They
submitted that even if their contention, that after recording the GD
entry only a preliminary inquiry was made, is not accepted, they are
still entitled to sustain the legality of the investigation on the
basis that the GD entry may be treated as a first information report,
since it disclosed the commission of a cognizable offence.

 
16. The parties before us did not dispute the legal position that a GD
entry may be treated as a first information report in an appropriate
case, where it discloses the commission of a cognizable offence. If
the contention of the appellants is upheld, the order of the High
Court must be set aside because if there was in law a first
information report disclosing the commission of a cognizable offence,
the police had the power and jurisdiction to investigate, and in the
process of investigation to conduct search and seizure. It is,
therefore, not necessary for us to consider the authorities cited at
the Bar on the question of validity of the preliminary inquiry and the
validity of the search and seizure.

 
Xxx xxxx

 
19. The High Court fell into an error in thinking that the information
received by the police could not be treated as a first information
report since the allegation was vague inasmuch as it was not stated
from whom the sum of rupees one lakh was demanded and accepted. Nor
was it stated that such demand or acceptance was made as motive or
reward for doing or forbearing to do any official act, or for showing
or forbearing to show in exercise of his official function, favour or
disfavour to any person or for rendering, attempting to render any
service or disservice to any person. Thus there was no basis for a
police officer to suspect the commission of an offence which he was
empowered under Section 156 of the Code to investigate.”

 

 

 

 

 
63) It is thus unequivocally clear that registration of FIR is mandatory
and also that it is to be recorded in the FIR Book by giving a unique
annual number to each FIR to enable strict tracking of each and every
registered FIR by the superior police officers as well as by the competent
court to which copies of each FIR are required to be sent.

 
‘Information’

 
64) The legislature has consciously used the expression “information” in
Section 154(1) of the Code as against the expression used in Section
41(1)(a) and (g) where the expression used for arresting a person without
warrant is “reasonable complaint” or “credible information”. The expression
under Section 154(1) of the Code is not qualified by the prefix
“reasonable” or “credible”. The non qualification of the word
“information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the
Code is for the reason that the police officer should not refuse to record
any information relating to the commission of a cognizable offence 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 the registration of a case.

 
65) The above view has been expressed by this Court in Bhajan Lal (supra)
which is as under:-

 
“32. … 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.”

 
66) In Parkash Singh Badal (supra), this Court held as under:-

 
“65. The legal mandate enshrined in Section 154(1) is that every
information relating to the commission of a “cognizable offence” [as
defined under Section 2(c) of the Code] if given orally (in which case it
is to be reduced into writing) or in writing to “an officer in charge of
a police station” [within the meaning of Section 2(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.

 
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 inquiry as to whether the information laid by the
informant is reliable and genuine or otherwise and refuse to register a
case on the ground that the information is not reliable or credible. On
the other hand, the officer in charge of a police station is statutorily
obliged to register a case and then to proceed with the investigation if
he has reason to suspect the commission of an offence which he is
empowered under Section 156 of the Code to investigate, subject to the
proviso to Section 157 thereof. In case an officer in charge of a police
station refuses to exercise the jurisdiction vested in him and to
register a case on the information of a cognizable offence reported and
thereby violates the statutory duty cast upon him, the person aggrieved
by such refusal can send the substance of the information in writing and
by post to the Superintendent of Police concerned who if satisfied that
the information forwarded to him discloses a cognizable offence, should
either investigate the case himself or direct an investigation to be made
by any police officer subordinate to him in the manner provided by sub-
section (3) of Section 154 of the Code.

 
67. It has to be noted that in Section 154(1) of the Code, the
legislature in its collective wisdom has carefully and cautiously used
the expression “information” without qualifying the same as in Sections
41(1)(a) or (g) of the Code wherein the expressions “reasonable
complaint” and “credible information” are used. Evidently, the non-
qualification of the word “information” in Section 154(1) unlike in
Sections 41(1)(a) and (g) of the Code may be for the reason that the
police officer should not refuse to record an information relating to the
commission of a cognizable offence and to register a case thereon on the
ground that he is not satisfied with the reasonableness or credibility of
the information. In other words, “reasonableness” or “credibility” of the
said information is not a condition precedent for registration of a case.
A comparison of the present Section 154 with those of the earlier Codes
will indicate that the legislature had purposely thought it fit to employ
only the word “information” without qualifying the said word. Section 139
of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the
Legislative Council of India read that “every complaint or information”
preferred to an officer in charge of a police station should be reduced
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 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.”

 
67) In Ramesh Kumari (supra), this Court held as under:-

 
4. 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:

 
“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 inquiry 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 information and that information must
disclose a cognizable offence.”

 
(emphasis in original)

 
Finally, this Court 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.”

 
5. 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 information disclosing cognizable offence.”

 
68) In Ram Lal Narang (supra), this Court held as under:-

 
“14. Under the CrPC, 1898, whenever an officer in charge of the police
station received information relating to the commission of a cognizable
offence, he was required to enter the substance thereof in a book kept by
him, for that purpose, in the prescribed form (Section 154 CrPC). Section
156 of the CrPC invested the Police with the power to investigate into
cognizable offences without the order of a Court. If, from the
information received or otherwise, the officer in charge of a police
station suspected the commission of a cognizable offence, he was required
to send forthwith a report of the same to a Magistrate empowered to take
cognizance of such offence upon a police report and then to proceed in
person or depute one of his subordinate officers to proceed to the spot,
to investigate the facts and circumstances of the case and to take
measures for the discovery and arrest of the offender (Section 157 CrPC).
He was required to complete the investigation without unnecessary delay,
and, as soon as it was completed, to forward to a Magistrate empowered to
take cognizance of the offence upon a police report, a report in the
prescribed form, setting forth the names of the parties, the nature of
the information and the names of the persons who appeared to be
acquainted with the circumstances of the case [Section 173(1) CrPC]. He
was also required to state whether the accused had been forwarded in
custody or had been released on bail. Upon receipt of the report
submitted under Section 173(1) CrPC by the officer in charge of the
police station, the Magistrate empowered to take cognizance of an offence
upon a police report might take cognizance of the offence [Section
190(1)(b) CrPC]. Thereafter, if, in the opinion of the Magistrate taking
cognizance of the offence, there was sufficient ground for proceeding,
the Magistrate was required to issue the necessary process to secure the
attendance of the accused (Section 204 CrPC). The scheme of the Code thus
was that the FIR was followed by investigation, the investigation led to
the submission of a report to the Magistrate, the Magistrate took
cognizance of the offence on receipt of the police report and, finally,
the Magistrate taking cognizance issued process to the accused.

 
15. The police thus had the statutory right and duty to “register”
every information relating to the commission of a cognizable offence. The
police also had the statutory right and duty to investigate the facts and
circumstances of the case where the commission of a cognizable offence
was suspected and to submit the report of such investigation to the
Magistrate having jurisdiction to take cognizance of the offence upon a
police report. These statutory rights and duties of the police were not
circumscribed by any power of superintendence or interference in the
Magistrate; nor was any sanction required from a Magistrate to empower
the Police to investigate into a cognizable offence. This position in law
was well-established. In King Emperor v. Khwaja Nazir Ahmad the Privy
Council observed as follows:

 
“Just as it is essential that everyone accused of a crime should
have free access to a Court of justice, so that he may be duly
acquitted if found not guilty of the offence with which he is charged,
so it is of the utmost importance that the judiciary should not
interfere with the police in matters which are within their province
and into which the law imposes on them the duty of inquiry. In India,
as has been shown, there is a statutory right on the part of the
police to investigate the circumstances of an alleged cognizable crime
without requiring any authority from the judicial authorities, and it
would, as Their Lordships think, be an unfortunate result if it should
be held possible to interfere with those statutory rules by an
exercise of the inherent jurisdiction of the Court. The functions of
the judiciary and the police are complementary, not overlapping, and
the combination of individual liberty with a due observance of law and
order is only to be obtained by leaving each to exercise its own
function, always of course, subject to the right of the Courts to
intervene in an appropriate case when moved under Section 491 of the
Criminal Procedure Code to give directions in the nature of Habeas
Corpus. In such a case as the present, however, the Court’s functions
begin when a charge is preferred before it and not until then … In
the present case, the police have under Sections 154 and 156 of the
Criminal Procedure Code, a statutory right to investigate a cognizable
offence without requiring the sanction of the Court ….”

 
Ordinarily, the right and duty of the police would end with the
submission of a report under Section 173(1) CrPC upon receipt of which it
was up to the Magistrate to take or not to take cognizance of the
offence. There was no provision in the 1898 Code prescribing the
procedure to be followed by the police, where, after the submission of a
report under Section 173(1) CrPC and after the Magistrate had taken
cognizance of the offence, fresh facts came to light which required
further investigation. There was, of course, no express provision
prohibiting the police from launching upon an investigation into the
fresh facts coming to light after the submission of the report under
Section 173(1) or after the Magistrate had taken cognizance of the
offence. As we shall presently point out, it was generally thought by
many High Courts, though doubted by a few, that the police were not
barred from further investigation by the circumstance that a report under
Section 173(1) had already been submitted and a Magistrate had already
taken cognizance of the offence. The Law Commission in its 41st report
recognized the position and recommended that the right of the police to
make further investigation should be statutorily affirmed. The Law
Commission said:

 
“14.23. A report under Section 173 is normally the end of the
investigation. Sometimes, however, the police officer after submitting
the report under Section 173 comes upon evidence bearing on the guilt
or innocence of the accused. We should have thought that the police
officer can collect that evidence and send it to the Magistrate
concerned. It appears, however, that Courts have sometimes taken the
narrow view that once a final report under Section 173 has been sent,
the police cannot touch the case again and cannot re-open the
investigation. This view places a hindrance in the way of the
investigating agency, which can be very unfair to the prosecution and,
for that matter, even to the accused. It should be made clear in
Section 173 that the competent police officer can examine such
evidence and send a report to the Magistrate. Copies concerning the
fresh material must of course be furnished to the accused.”

 
Accordingly, in the CrPC, 1973, a new provision, Section 173(8), was
introduced and it says:

 
“Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police station obtains
further evidence, oral or documentary, he shall forward to the
Magistrate a further report or reports regarding such evidence in the
form prescribed; and the provisions of sub-sections (2) to (6) shall,
as far as may be, apply in relation to such report or reports as they
apply in relation to a report forwarded under sub-section (2).”

 
69) In Lallan Chaudhary (supra), this Court held as under:

 
“8. Section 154 of the Code thus casts a statutory duty upon the
police officer to register the case, as disclosed in the complaint, and
then to proceed with the investigation. The mandate of Section 154 is
manifestly clear that if any information disclosing a cognizable offence
is laid before an officer in charge of a police station, such police
officer has no other option except to register the case on the basis of
such information.

 
9. In Ramesh Kumari v. State (NCT of Delhi) this Court has held that
the provision of Section 154 is mandatory. Hence, the police officer
concerned is duty-bound to register the case on receiving information
disclosing cognizable offence. Genuineness or credibility of the
information is not a condition precedent for registration of a case. That
can only be considered after registration of the case.

 
10. The mandate of Section 154 of the Code is that at the stage of
registration of a crime or a case on the basis of the information
disclosing a cognizable offence, the police officer concerned cannot
embark upon an inquiry 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.”

 
A perusal of the above-referred judgments clarify that the reasonableness
or creditability of the information is not a condition precedent for the
registration of a case.

 
Preliminary Inquiry

 
70) Mr. Naphade relied on the following decisions in support of his
arguments that if the police officer has a doubt about the veracity of the
accusation, he has to conduct preliminary inquiry, viz., E.P. Royappa vs.
State of Tamil Nadu (1974) 4 SCC 3, Maneka Gandhi (supra), S.M.D. Kiran
Pasha vs. Government of Andhra Pradesh (1990) 1 SCC 328, D.K. Basu vs.
State of W.B. (1997) 1 SCC 416, Uma Shankar Sitani vs. Commissioner of
Police, Delhi & Ors. (1996) 11 SCC 714, Preeti Gupta (supra), Francis
Coralie Mullin vs. Administrator, Union Territory of Delhi (1981) 1 SCC
608, Common Cause, A Registered Society vs. Union of India (1999) 6 SCC
667, District Registrar and Collector, Hyderabad vs. Canara Bank (2005) 1
SCC 496 and Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra
(2005) 5 SCC 294.

 
71) Learned senior counsel for the State further vehemently contended
that in appropriate cases, it would be proper for a police officer, on
receipt of a complaint of a cognizable offence, to satisfy himself that
prima facie the allegations levelled against the accused in the complaint
are credible. In this regard, Mr. Naphade cited the following decisions,
viz. Tapan Kumar Singh (supra), Bhagwant Kishore Joshi (supra), P.
Sirajuddin (supra), Sevi (supra), Shashikant (supra), Rajinder Singh Katoch
(supra), Vineet Narain vs. Union of India (1998) 1 SCC 226, Elumalai vs.
State of Tamil Nadu 1983 LW (CRL) 121, A. Lakshmanarao vs. Judicial
Magistrate, Parvatipuram AIR 1971 SC 186, State of Uttar Pradesh vs. Ram
Sagar Yadav & Ors. (1985) 1 SCC 552, Mona Panwar vs. High Court of
Judicature of Allahabad (2011) 3 SCC 496, Apren Joseph vs. State of Kerala
(1973) 3 SCC 114, King Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18 and
Sarangdharsingh Shivdassingh Chavan (supra).

 
72) He further pointed out that the provisions have to be read in the
light of the principle of malicious prosecution and the fundamental rights
guaranteed under Articles 14, 19 and 21. It is the stand of learned senior
counsel that 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 carries out an investigation, it would result in
putting the liberty of a citizen in jeopardy. Therefore, learned senior
counsel vehemently pleaded for a preliminary inquiry before registration of
FIR.

 

73) In terms of the language used in Section 154 of the Code, the police
is duty bound to proceed to conduct investigation into a cognizable offence
even without receiving information (i.e. FIR) about commission of such an
offence, if the officer in charge of the police station otherwise suspects
the commission of such an offence. The legislative intent is therefore
quite clear, i.e., to ensure that every cognizable offence is promptly
investigated in accordance with law. This being the legal position, there
is no reason that there should be any discretion or option left with the
police to register or not to register an FIR when information is given
about the commission of a cognizable offence. Every cognizable offence
must be investigated promptly in accordance with law and all information
provided under Section 154 of the Code about the commission of a cognizable
offence must be registered as an FIR so as to initiate an offence. The
requirement of Section 154 of the Code is only that the report must
disclose the commission of a cognizable offence and that is sufficient to
set the investigating machinery into action.
74) The insertion of sub-section (3) of Section 154, by way of an
amendment, reveals the intention of the legislature to ensure that no
information of commission of a cognizable offence must be ignored or not
acted upon which would result in unjustified protection of the alleged
offender/accused.
75) The maxim expression unius est exclusion alterius (expression of one
thing is the exclusion of another) applies in the interpretation of Section
154 of the Code, where the mandate of recording the information in writing
excludes the possibility of not recording an information of commission of a
cognizable crime in the special register.
76) Therefore, conducting an investigation into an offence after
registration of FIR under Section 154 of the Code is the “procedure
established by law” and, thus, is in conformity with Article 21 of the
Constitution. Accordingly, the right of the accused under Article 21 of
the Constitution is protected if the FIR is registered first and then the
investigation is conducted in accordance with the provisions of law.

 

77) The term inquiry as per Section 2(g) of the Code reads as under:

 
‘2(g) – “inquiry” means every inquiry, other than a trial, conducted
under this Code by a Magistrate or Court.”

 
Hence, it is clear that inquiry under the Code is relatable to a judicial
act and not to the steps taken by the Police which are either investigation
after the stage of Section 154 of the Code or termed as ‘Preliminary
Inquiry’ and which are prior to the registration of FIR, even though, no
entry in the General Diary/Station Diary/Daily Diary has been made.

 
78) Though there is reference to the term ‘preliminary inquiry’ and
‘inquiry’ under Sections 159 and Sections 202 and 340 of the Code, that is
a judicial exercise undertaken by the Court and not by the Police and is
not relevant for the purpose of the present reference.

 
79) Besides, learned senior counsel relied on the special procedures
prescribed under the CBI manual to be read into Section 154. It is true
that the concept of “preliminary inquiry” is contained in Chapter IX of the
Crime Manual of the CBI. However, this Crime Manual is not a statute and
has not been enacted by the legislature. It is a set of administrative
orders issued for internal guidance of the CBI officers. It cannot
supersede the Code. Moreover, in the absence of any indication to the
contrary in the Code itself, the provisions of the CBI Crime Manual cannot
be relied upon to import the concept of holding of preliminary inquiry in
the scheme of the Code of Criminal Procedure. At this juncture, it is also
pertinent to submit that the CBI is constituted under a Special Act,
namely, the Delhi Special Police Establishment Act, 1946 and it derive its
power to investigate from this Act.

 
80) It may be submitted that Sections 4(2) and 5 of the Code permit
special procedures to be followed for special Acts. Section 4 of the Code
lays down as under:

 
“Section 4. Trial of offences under the Indian Penal Code and other
laws. (1) All offences under the Indian Penal Code (45 of 1860) shall
be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.

 
(2) All offences under any other law shall be investigated, inquired
into, tried, and otherwise dealt with according to the same
provisions, but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences.”

 
It is thus clear that for offences under laws other than IPC, different
provisions can be laid down under a special Act to regulate the
investigation, inquiry, trial etc., of those offences. Section 4(2) of the
Code protects such special provisions.

 
81) Moreover, Section 5 of the Code lays down as under:

 
“Section 5. Saving – Nothing contained in this Code shall, in the
absence of a specific provision to the contrary, affect any special or
local law for the time being in force, or any special jurisdiction or
power conferred, or any special form of procedure prescribed, by any
other law for the time being in force.”

 
Thus, special provisions contained in the DSPE Act relating to the powers
of the CBI are protected also by Section 5 of the Code.

 
82) In view of the above specific provisions in the Code, the powers of
the CBI under the DSPE Act, cannot be equated with the powers of the
regular State Police under the Code.

 
Significance and Compelling reasons for registration of FIR at the earliest

 
83) The object sought to be achieved by registering the earliest
information as FIR is inter alia two fold: one, that the criminal process
is set into motion and is well documented from the very start; and second,
that the earliest information received in relation to the commission of a
cognizable offence is recorded so that there cannot be any embellishment
etc., later.

 
84) Principles of democracy and liberty demand a regular and efficient
check on police powers. One way of keeping check on authorities with such
powers is by documenting every action of theirs. Accordingly, under the
Code, actions of the police etc., are provided to be written and
documented. For example, in case of arrest under Section 41(1)(b) of the
Code, arrest memo along with the grounds has to be in writing mandatorily;
under Section 55 of the Code, if an officer is deputed to make an arrest,
then the superior officer has to write down and record the offence etc.,
for which the person is to be arrested; under Section 91 of the Code, a
written order has to be passed by the concerned officer to seek documents;
under Section 160 of the Code, a written notice has to be issued to the
witness so that he can be called for recording of his/her statement,
seizure memo/panchnama has to be drawn for every article seized etc.

 
85) The police is required to maintain several records including Case
Diary as provided under Section 172 of the Code, General Diary as provided
under Section 44 of the Police Act etc., which helps in documenting every
information collected, spot visited and all the actions of the police
officers so that their activities can be documented. Moreover, every
information received relating to commission of a non-cognizable offence
also has to be registered under Section 155 of the Code.

 
86) The underpinnings of compulsory registration of FIR is not only to
ensure transparency in the criminal justice delivery system but also to
ensure ‘judicial oversight’. Section 157(1) deploys the word ‘forthwith’.
Thus, any information received under Section 154(1) or otherwise has to be
duly informed in the form of a report to the Magistrate. Thus, the
commission of a cognizable offence is not only brought to the knowledge of
the investigating agency but also to the subordinate judiciary.

 
87) The Code contemplates two kinds of FIRs. The duly signed FIR under
Section 154(1) is by the informant to the concerned officer at the police
station. The second kind of FIR could be which is registered by the police
itself on any information received or other than by way of an informant
[Section 157(1)] and even this information has to be duly recorded and the
copy should be sent to the Magistrate forthwith.

 
88) The registration of FIR either on the basis of the information
furnished by the informant under Section 154(1) of the Code or otherwise
under Section 157(1) of the Code is obligatory. The obligation to register
FIR has inherent advantages:

 
a) It is the first step to ‘access to justice’ for a victim.

 
b) It upholds the ‘Rule of Law’ inasmuch as the ordinary person brings
forth the commission of a cognizable crime in the knowledge of the
State.

 
c) It also facilitates swift investigation and sometimes even
prevention of the crime. In both cases, it only effectuates the
regime of law.

 
d) It leads to less manipulation in criminal cases and lessens
incidents of ‘ante-dates’ FIR or deliberately delayed FIR.

 
89) In Thulia Kali vs. State of Tamil Nadu (1972) 3 SCC 393, this Court
held as under:-

 
“12…First information report in a criminal case is an extremely
vital and valuable piece of evidence for the purpose of corroborating
the oral evidence adduced at the trial. The importance of the above
report can hardly be overestimated from the standpoint of the accused.
The object of insisting upon prompt lodging of the report to the
police in respect of commission of an offence is to obtain early
information regarding the circumstances in which the crime was
committed, the names of the actual culprits and the part played by
them as well as the names of eyewitnesses present at the scene of
occurrence. Delay in lodging the first information report quite often
results in embellishment which is a creature of afterthought. On
account of delay, the report not only gets bereft of the advantage of
spontaneity, danger creeps in of the introduction of coloured version,
exaggerated account or concocted story as a result of deliberation and
consultation. It is, therefore, essential that the delay in the
lodging of the first information report should be satisfactorily
explained…”

 
90) In Tapan Kumar Singh (supra), it was held as under:-

 
“20. It is well settled that a first information report is not an
encyclopaedia, which must disclose all facts and details relating to
the offence reported. An informant may lodge a report about the
commission of an offence though he may not know the name of the victim
or his assailant. He may not even know how the occurrence took place.
A first informant need not necessarily be an eyewitness so as to be
able to disclose in great detail all aspects of the offence committed.
What is of significance is that the information 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 police officer
concerned is empowered under Section 156 of the Code to investigate.
If it does, he has no option but to record the information and proceed
to investigate the case either himself or depute any other competent
officer to conduct the investigation. The question as to whether the
report is true, whether it discloses full details regarding the manner
of occurrence, whether the accused is named, and whether there is
sufficient evidence to support the allegations are all matters which
are alien to the consideration of the question whether the report
discloses the 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.”

 
91) In Madhu Bala (supra), this Court held:

 
“6. 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:….

 
9. The mode and manner of registration of such cases are laid down in
the Rules framed by the different State Governments under the Indian
Police Act, 1861. As in the instant case we are concerned with Punjab
Police Rules, 1934 (which are applicable to Punjab, Haryana, Himachal
Pradesh and Delhi) framed under the said Act we may now refer to the
relevant provisions of those Rules. Chapter XXIV of the said Rules lays
down the procedure an officer in charge of a police station has to follow
on receipt of information of commission of crime. Under Rule 24.1
appearing in the Chapter every information covered by Section 154 of the
Code must be entered in the First Information Report Register and the
substance thereof in the daily diary. Rule 24.5 says that the First
Information Report Register shall be a printed book in Form 24.5(1)
consisting of 200 pages and shall be completely filled before a new one
is commenced. It further requires that the cases shall bear an annual
serial number in each police station for each calendar year. The other
requirements of the said Rules need not be detailed as they have no
relevance to the point at issue.

 
10. 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”.

 
92) According to the Statement of Objects and Reasons, protection of the
interests of the poor is clearly one of the main objects of the Code.
Making registration of information relating to commission of a cognizable
offence mandatory would help the society, especially, the poor in rural and
remote areas of the country.

 
93) The Committee on Reforms of Criminal Justice System headed by Dr.
Justice V.S. Malimath also noticed the plight faced by several people due
to non-registration of FIRs and recommended that action should be taken
against police officers who refuse to register such information. The
Committee observed:-

 
“7.19.1 According to the Section 154 of the Code of Criminal
Procedure, the office incharge of a police station is mandated to
register every information oral or written relating to the commission
of a cognizable offence. Non-registration of cases is a serious
complaint against the police. The National Police Commission in its
4th report lamented that the police “evade registering cases for
taking up investigation where specific complaints are lodged at the
police stations”. It referred to a study conducted by the Indian
Institute of Public Opinion, New Delhi regarding “Image of the Police
in India” which observed that over 50% of the respondents mention non-
registration of complaints as a common practice in police stations.

 
7.19.2 The Committee recommends that all complaints should be
registered promptly, failing which appropriate action should be taken.
This would necessitate change in the mind – set of the political
executive and that of senior officers.

 
7.19.4 There are two more aspects relating to registration. The
first is minimization of offences by the police by way of not invoking
appropriate sections of law. We disapprove of this tendency.
Appropriate sections of law should be invoked in each case unmindfull
of the gravity of offences involved. The second issue is relating to
the registration of written complaints. There is an increasing
tendency amongst the police station officers to advise the informants,
who come to give oral complaints, to bring written complaints. This
is wrong. Registration is delayed resulting in valuable loss of time
in launching the investigation and apprehension of criminals.
Besides, the complainant gets an opportunity to consult his friends,
relatives and sometimes even lawyers and often tends to exaggerate the
crime and implicate innocent persons. This eventually has adverse
effect at the trial. The information should be reduced in writing by
the SH, if given orally, without any loss of time so that the first
version of the alleged crime comes on record.

 
7.20.11 It has come to the notice of the Committee that even in
cognizable cases quite often the Police officers do not entertain the
complaint and send the complainant away saying that the offence is not
cognizable. Sometimes the police twist facts to bring the case within
the cognizable category even though it is non-cognizable, due to
political or other pressures or corruption. This menace can be
stopped by making it obligatory on the police officer to register
every complaint received by him. Breach of this duty should become an
offence punishable in law to prevent misuse of the power by the police
officer.”

 
94) It means that the number of FIRs not registered is approximately
equivalent to the number of FIRs actually registered. Keeping in view the
NCRB figures that show that about 60 lakh cognizable offences were
registered in India during the year 2012, the burking of crime may itself
be in the range of about 60 lakh every year. Thus, it is seen that such a
large number of FIRs are not registered every year, which is a clear
violation of the rights of the victims of such a large number of crimes.

 
95) Burking of crime leads to dilution of the rule of law in the short
run; and also has a very negative impact on the rule of law in the long run
since people stop having respect for rule of law. Thus, non-registration
of such a large number of FIRs leads to a definite lawlessness in the
society.

 
96) Therefore, reading Section 154 in any other form would not only be
detrimental to the Scheme of the Code but also to the society as a whole.
It is thus seen that this Court has repeatedly held in various decided
cases that registration of FIR is mandatory if the information given to the
police under Section 154 of the Code discloses the commission of a
cognizable offence.

 
Is there a likelihood of misuse of the provision?

 
97) Another, stimulating argument raised in support of preliminary
inquiry is that mandatory registration of FIRs will lead to arbitrary
arrest, which will directly be in contravention of Article 21 of the
Constitution.

 
98) While registration of FIR is mandatory, arrest of the accused
immediately on registration of FIR is not at all mandatory. In fact,
registration of FIR and arrest of an accused person are two entirely
different concepts under the law, and there are several safeguards
available against arrest. Moreover, it is also pertinent to mention that
an accused person also has a right to apply for “anticipatory bail” under
the provisions of Section 438 of the Code if the conditions mentioned
therein are satisfied. Thus, in appropriate cases, he can avoid the arrest
under that provision by obtaining an order from the Court.

 
99) It is also relevant to note that in Joginder Kumar vs. State of U.P.
& Ors. (1994) 4 SCC 260, this Court has held that arrest cannot be made by
police in a routine manner. Some important observations are reproduced as
under:-

 
“20…No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. It would be prudent
for a police officer in the interest of protection of the
constitutional rights of a citizen and perhaps in his own interest
that no arrest should be made without a reasonable satisfaction
reached after some investigation as to the genuineness and bona fides
of a complaint and a reasonable belief both as to the person’s
complicity and even so as to the need to effect arrest. Denying a
person of his liberty is a serious matter. The recommendations of the
Police Commission merely reflect the constitutional concomitants of
the fundamental right to personal liberty and freedom. A person is not
liable to arrest merely on the suspicion of complicity in an offence.
There must be some reasonable justification in the opinion of the
officer effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be avoided if a
police officer issues notice to person to attend the Station House and
not to leave the Station without permission would do.”

 
100) The registration of FIR under Section 154 of the Code and arrest of
an accused person under Section 41 are two entirely different things. It
is not correct to say that just because FIR is registered, the accused
person can be arrested immediately. It is the imaginary fear that “merely
because FIR has been registered, it would require arrest of the accused and
thereby leading to loss of his reputation” and it should not be allowed by
this Court to hold that registration of FIR is not mandatory to avoid such
inconvenience to some persons. The remedy lies in strictly enforcing the
safeguards available against arbitrary arrests made by the police and not
in allowing the police to avoid mandatory registration of FIR when the
information discloses commission of a cognizable offence.

 
101) This can also be seen from the fact that Section 151 of the Code
allows a police officer to arrest a person, even before the commission of a
cognizable offence, in order to prevent the commission of that offence, if
it cannot be prevented otherwise. Such preventive arrests can be valid for
24 hours. However, a Maharashtra State amendment to Section 151 allows the
custody of a person in that State even for up to a period of 30 days (with
the order of the Judicial Magistrate) even before a cognizable offence is
committed in order to prevent commission of such offence. Thus, the arrest
of a person and registration of FIR are not directly and/or irreversibly
linked and they are entirely different concepts operating under entirely
different parameters. On the other hand, if a police officer misuses his
power of arrest, he can be tried and punished under Section 166.

 
102) Besides, the Code gives power to the police to close a matter both
before and after investigation. A police officer can foreclose an FIR
before an investigation under Section 157 of the Code, if it appears to him
that there is no sufficient ground to investigate the same. The Section
itself states that a police officer can start investigation when he has a
‘reason to suspect the commission of an offence’. Therefore, the
requirements of launching an investigation under Section 157 of the Code
are higher than the requirement under Section 154 of the Code. The police
officer can also, in a given case, investigate the matter and then file a
final report under Section 173 of the Code seeking closure of the matter.
Therefore, the police is not liable to launch an investigation in every FIR
which is mandatorily registered on receiving information relating to
commission of a cognizable offence.

 
103) Likewise, giving power to the police to close an investigation,
Section 157 of the Code also acts like a check on the police to make sure
that it is dispensing its function of investigating cognizable offences.
This has been recorded in the 41st Report of the Law Commission of India on
the Code of Criminal Procedure, 1898 as follows :

 
“14.1…….If the offence does not appear to be serious and if the
station-house officer thinks there is no sufficient ground for
starting an investigation, he need not investigate but, here again, he
has to send a report to the Magistrate who can direct the police to
investigate, or if the Magistrate thinks fit, hold an inquiry
himself.”

 
“14.2. A noticeable feature of the scheme as outlined above is that a
Magistrate is kept in the picture at all stages of the police
investigation, but he is not authorized to interfere with the actual
investigation or to direct the police how that investigation is to be
conducted.”

 

 

 

 

 

Therefore, the Scheme of the Code not only ensures that the time of the
police should not be wasted on false and frivolous information but also
that the police should not intentionally refrain from doing their duty of
investigating cognizable offences. As a result, the apprehension of misuse
of the provision of mandatory registration of FIR is unfounded and
speculative in nature.

 
104) It is the stand of Mr. Naphade, learned senior counsel for the State
of Maharashtra that when an innocent person is falsely implicated, he not
only suffers from loss of reputation but also from mental tension and his
personal liberty is seriously impaired. He relied on the Maneka Gandhi
(supra), which held the proposition that the law which deprives a person of
his personal liberty must be reasonable both from the stand point of
substantive as well as procedural aspect is now firmly established in our
Constitutional law. Therefore, he pleaded for a fresh look at Section 154
of the Code, which interprets Section 154 of the Code in conformity with
the mandate of Article 21.

 
105) It is true that a delicate balance has to be maintained between the
interest of the society and protecting the liberty of an individual. As
already discussed above, there are already sufficient safeguards provided
in the Code which duly protect the liberty of an individual in case of
registration of false FIR. At the same time, Section 154 was drafted
keeping in mind the interest of the victim and the society. Therefore, we
are of the cogent view that mandatory registration of FIRs under Section
154 of the Code will not be in contravention of Article 21 of the
Constitution as purported by various counsel.

 
Exceptions:

 
106) Although, we, in unequivocal terms, hold that Section 154 of the Code
postulates the mandatory registration of FIRs on receipt of all cognizable
offence, yet, there may be instances where preliminary inquiry may be
required owing to the change in genesis and novelty of crimes with the
passage of time. One such instance is in the case of allegations relating
to medical negligence on the part of doctors. It will be unfair and
inequitable to prosecute a medical professional only on the basis of the
allegations in the complaint.

 
107) In the context of medical negligence cases, in Jacob Mathew (supra),
it was held by this Court as under:

 
“51. We may not be understood as holding that doctors can never be
prosecuted for an offence of which rashness or negligence is an
essential ingredient. All that we are doing is to emphasise the need
for care and caution in the interest of society; for, the service
which the medical profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting doctors from
frivolous or unjust prosecutions. Many a complainant prefer recourse
to criminal process as a tool for pressurising the medical
professional for extracting uncalled for or unjust compensation. Such
malicious proceedings have to be guarded against.

 
52. Statutory rules or executive instructions incorporating certain
guidelines need to be framed and issued by the Government of India
and/or the State Governments in consultation with the Medical Council
of India. So long as it is not done, we propose to lay down certain
guidelines for the future which should govern the prosecution of
doctors for offences of which criminal rashness or criminal negligence
is an ingredient. A private complaint may not be entertained unless
the complainant has produced prima facie evidence before the court in
the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the
accused doctor. The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or omission,
obtain an independent and competent medical opinion preferably from a
doctor in government service, qualified in that branch of medical
practice who can normally be expected to give an impartial and
unbiased opinion applying the Bolam9 test to the facts collected in
the investigation. A doctor accused of rashness or negligence, may not
be arrested in a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary for furthering
the investigation or for collecting evidence or unless the
investigating officer feels satisfied that the doctor proceeded
against would not make himself available to face the prosecution
unless arrested, the arrest may be withheld.”

 
108) In the context of offences relating to corruption, this Court in P.
Sirajuddin (supra) expressed the need for a preliminary inquiry before
proceeding against public servants.

 
109) Similarly, in Tapan Kumar Singh (supra), this Court has validated a
preliminary inquiry prior to registering an FIR only on the ground that at
the time the first information is received, the same does not disclose a
cognizable offence.

 
110) Therefore, in view of various counter claims regarding registration
or non-registration, what is necessary is only that the information given
to the police must disclose the commission of a cognizable offence. In
such a situation, registration of an FIR is mandatory. However, if no
cognizable offence is made out in the information given, then the FIR need
not be registered immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of ascertaining
as to whether a cognizable offence has been committed. But, if the
information given clearly mentions the commission of a cognizable offence,
there is no other option but to register an FIR forthwith. Other
considerations are not relevant at the stage of registration of FIR, such
as, whether the information is falsely given, whether the information is
genuine, whether the information is credible etc. These are the issues
that have to be verified during the investigation of the FIR. At the stage
of registration of FIR, what is to be seen is merely whether the
information given ex facie discloses the commission of a cognizable
offence. If, after investigation, the information given is found to be
false, there is always an option to prosecute the complainant for filing a
false FIR.

 

 

 

 

 

Conclusion/Directions:

 

111) In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if
the information discloses commission of a cognizable offence and no
preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence
but indicates the necessity for an inquiry, a preliminary inquiry
may be conducted only to ascertain whether cognizable offence is
disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence,
the FIR must be registered. In cases where preliminary inquiry ends
in closing the complaint, a copy of the entry of such closure must
be supplied to the first informant forthwith and not later than one
week. It must disclose reasons in brief for closing the complaint
and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if
cognizable offence is disclosed. Action must be taken against
erring officers who do not register the FIR if information received
by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or
otherwise of the information received but only to ascertain whether
the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case.
The category of cases in which preliminary inquiry may be made are
as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in
reporting the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time bound and in
any case it should not exceed 7 days. The fact of such delay and
the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of
all information received in a police station, we direct that all
information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily
and meticulously reflected in the said Diary and the decision to
conduct a preliminary inquiry must also be reflected, as mentioned
above.

 

 

 

 

 

 

 

112) With the above directions, we dispose of the reference made to us.
List all the matters before the appropriate Bench for disposal on merits.

 

………………………………CJI.

 
(P. SATHASIVAM)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
………….……………………J.

 
(DR. B.S. CHAUHAN)

 

 

 

 

 

 

 
………….………………………J.

 
(RANJANA PRAKASH DESAI)

 

 

 

 

 

……….………………………J.

 
(RANJAN GOGOI)

 

 

 

 

 
………….……………………J.

 
(S.A. BOBDE)

 

 

 

 

 

NEW DELHI;
NOVEMBER 12, 2013.
———————–
81

 

 

 

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