It is mandatory to lodge an FIR if information reveals commission of a cognizable offence. There are 2 prominent Hon'ble Supreme Court and High Court rulings.
- Lalita Kumari Vs State of UP - 12 November 2013
- Pradip Nirankarnath Sharma Vs State of Gujrat - 17 March 2025
- Punit Pruti and Ors Vs State Govt of NCT of Delhi 13 Oct 2019(Delhi HC)
Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 68 OF
2008
Lalita Kumari ....
Petitioner (s)
Versus
Govt. of U.P. & Ors.
.... Respondent(s)
WITH
S.L.P. (Crl.) No. 5986 of 2006
S.L.P. (Crl.) No. 5200 of 2009
CRIMINAL APPEAL No. 1410 OF 2011
CRIMINAL APPEAL No. 1267 OF 2007
AND
CONTEMPT PETITION (C) NO. D26722 OF 2008
IN
WRIT PETITION (CRIMINAL) NO. 68 OF 2008
J U D G M E N T
1
Page 2 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
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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
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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,
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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
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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
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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
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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.”
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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,
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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,
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Page 26
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
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Page 27
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
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Page 28
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
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Page 29
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
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Page 30
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
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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.”
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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
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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
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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
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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
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Page 36
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
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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
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Page 38
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
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Page 39
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
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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
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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
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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
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Page 43
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
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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’
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Page 45
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
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Page 46
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
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Page 47
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.”
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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.
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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
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Page 50
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.
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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
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Page 52
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
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Page 53
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,
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Page 54
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
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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
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Page 56
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
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Page 57
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)
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Page 58
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
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Page 59
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
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Page 60
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
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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
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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
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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
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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
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Page 65
(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.
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Page 66
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.
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Page 67
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
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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
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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
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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.”
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
90
Page 91
(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
91
Page 92
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.
92
Page 93
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.
93
2025 INSC
350CRL.NO….2025@SLP(CRL.) NO. 3154/2024 Page 1 of 13
REPORTABLE
IN THE
SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO……………2025
(Arising out
of SLP(Crl.) No.3154 of 2024)
PRADEEP
NIRANKARNATH
SHARMA
…PETITIONER
VERSUS
STATE OF
GUJARAT
& ORS. …RESPONDENTS
J U D G M E
N T
VIKRAM NATH,
J.
1. Leave
granted.
2. The
present appeal has been filed challenging the
judgment and
order dated 31.01.2024 passed by the
High Court
of Gujarat in R/Special Criminal
Application
(Direction) No. 1321 of 2024, whereby the
High Court
dismissed the appellant’s plea seeking a
writ of
mandamus directing the respondent
authorities
to conduct a preliminary inquiry before
registering
any First Information Report1 against him
for acts
performed in his official capacity.
1 FIR
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 2 of 13
3. The facts
leading to the present appeal are that the
appellant is
a retired Indian Administrative Service
(IAS)
officer who served in various administrative
capacities,
including as the Collector of Kachchh
District,
Gujarat, between 2003 and 2006. Several
FIRs have
been registered against the appellant in
connection
with alleged irregularities in land
allotment
orders passed during his tenure as the
Collector.
The allegations against the appellant
primarily
pertain to abuse of official position, corrupt
practices,
and financial irregularities in the allotment
of
government land. It is pertinent to note that the
first FIR in
this regard was registered in 2010,
followed by
successive FIRs lodged against the
appellant.
The appellant has remained in judicial
custody over
the course of this period in connection
with these
cases, and trials are ongoing before
competent
Courts.
4. Aggrieved
by the registration of multiple FIRs, the
appellant
approached the High Court of Gujarat by
way of a
writ petition under Articles 14, 20, 21, 22,
and 226 of
the Constitution of India. The primary
relief
sought in the writ petition was for the issuance
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 3 of 13
of a writ of
mandamus or any other appropriate writ,
order, or
direction, directing the respondent
authorities
to conduct a preliminary inquiry before
registering
any further FIRs against him. The
appellant
contended that his Fundamental Rights,
particularly
his right to liberty under Article 21, were
being
violated due to successive and arbitrary
registration
of criminal cases without conducting a
preliminary
inquiry. He further contended that these
FIRs were
lodged with an ulterior motive to harass
him and
prevent him from effectively defending
himself in
the pending cases. In support of his
submissions,
the appellant placed reliance on the
judgment of
this Hon’ble Court in Lalita Kumari v.
Government
of Uttar Pradesh & Ors.,2 to argue that
the
registration of an FIR should be preceded by a
preliminary
inquiry in cases involving allegations of
abuse of
official position.
5. The State
of Gujarat, opposing the petition, argued
before the
High Court that the relief sought by the
appellant
was legally untenable. It was contended
that under
the settled position of law, once
2 (2014) 2
SCC 1
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 4 of 13
information
regarding the commission of a cognizable
offence is
received, the police authorities are duty-
bound to
register an FIR under Section 154 of the
Code of
Criminal Procedure, 1973.3 The State further
argued that
granting the appellant’s request for a
mandatory
preliminary inquiry would amount to
granting him
a blanket protection against
investigation,
which is impermissible under law. The
State also
submitted that the appellant’s reliance on
Lalita
Kumari (supra) was misplaced, as the
judgment
itself clarified that preliminary inquiry is
required
only in limited categories of cases, such as
family
disputes, commercial matters, and medical
negligence
cases, and not where clear allegations of
cognizable
offences exist.
6. The High
Court, after hearing both parties, dismissed
the
appellant’s writ petition. The High Court held that
once a
cognizable offence is disclosed in the
complaint,
the police authorities are under a
statutory
obligation to register an FIR and conduct
an
investigation. Relying on the principles laid down
in Lalita
Kumari (supra), the High Court observed
3 CrPC
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 5 of 13
that a
preliminary inquiry is warranted only in cases
where there
is doubt as to whether a cognizable
offence is
disclosed. However, in the present case,
where clear
allegations of corruption and abuse of
official
position have been made against the
appellant,
the police authorities have no discretion to
withhold the
registration of an FIR. The High Court
further
observed that granting a blanket direction for
a
preliminary inquiry in all cases involving the
appellant
would amount to judicial legislation, which
is
impermissible. The High Court noted that the CrPC
does not
provide for an opportunity of explanation to
an accused
prior to the registration of an FIR. In view
of these
findings, the High Court dismissed the writ
petition,
holding that the appellant had failed to
make out a
case for the interference prayed for.
7. The
appellant, aggrieved by the dismissal of his writ
petition,
has approached this Court by way of the
present
appeal. The primary contention raised by the
appellant
before this Court is that multiple FIRs have
been
registered against him in a sequential manner,
particularly
after he secured bail in previous cases,
and that the
registration of such successive FIRs
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 6 of 13
without a
preliminary inquiry amounts to an abuse
of process.
It has been argued that such arbitrary
registration
of FIRs violates the principles of fairness
and due
process enshrined in Articles 14 and 21 of
the
Constitution of India. The appellant has once
again relied
on Lalita Kumari (supra) to assert that
the
respondent authorities ought to have conducted
a
preliminary inquiry before proceeding with the
registration
of successive FIRs against him.
8. We have
heard Mr. Kapil Sibal, learned senior
counsel for
the appellant and Mr. Tushar Mehta,
learned
Solicitor General appearing for the
respondents
at length.
9. Learned
senior counsel appearing for the appellant
contended
that the appellant, a retired IAS officer,
has been
subjected to sustained and unwarranted
harassment
through the registration of multiple
FIRs, all of
which relate to actions performed in his
official
capacity while serving as the Collector of
District
Kachchh. It was argued that after the first
FIR was
lodged in connection with certain land
allotment
decisions taken by the appellant in his
official
tenure, a pattern emerged wherein successive
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 7 of 13
FIRs were
registered immediately upon his release on
bail,
thereby ensuring his continued incarceration.
Mr. Sibal
submitted that such successive registration
of FIRs,
without conducting any preliminary inquiry
to assess
whether a cognizable offence was made out,
violates the
principles of natural justice and the
fundamental
right to liberty enshrined under Articles
14, 20, and
21 of the Constitution. Placing reliance
on the
judgment of the Hon’ble Supreme Court in
Lalita
Kumari (Supra), it was urged that preliminary
inquiry is
mandatory in cases where the allegations
do not prima
facie disclose a cognizable offense. It
was further
argued that the State’s conduct in
registering
successive FIRs, despite the appellant’s
superannuation
in 2015, reflects an ulterior motive
to harass
him, rather than a bona fide attempt to
investigate
any alleged wrongdoing. It was thus
prayed that
the respondent authorities be directed to
mandatorily
conduct a preliminary inquiry before
registering
any further FIR against the appellant and
that he be
granted an opportunity to provide his
explanation
before any fresh investigation is initiated.
10. Per
contra, the learned Solicitor General, appearing
on behalf of
the respondent-State, vehemently
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 8 of 13
opposed the
appeal, arguing that the petition itself is
legally
untenable and misconceived. It was submitted
that the
appellant has sought a blanket order
directing
the authorities to conduct a preliminary
inquiry
before the registration of an FIR, which is
impermissible
under the settled principles of law. It
was further
contended that under Section 154 of the
CrPC, the
registration of an FIR is mandatory if the
information
received discloses the commission of a
cognizable
offence, and the police have no discretion
to conduct a
preliminary inquiry except in limited
circumstances
as laid down in Lalita Kumari
(supra). The
State also asserted that there is no
statutory
provision requiring the accused to be given
an
opportunity to explain his position before the
registration
of an FIR, as such a practice would
amount to
granting an undue advantage to persons
accused of
serious offences and would hinder the
investigation
process. Additionally, it was argued that
the
appellant’s plea, if granted, would set a
dangerous
precedent wherein public servants
accused of
corruption or misconduct could claim
immunity by
demanding a pre-FIR hearing. The
respondent
further contended that adequate legal
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 9 of 13
safeguards
are available to the appellant under the
existing
legal framework, including the right to seek
anticipatory
bail and the right to challenge malicious
prosecution
before the appropriate forums.
Accordingly,
it was urged that the appeal be
dismissed.
11. We have
carefully considered the submissions of the
appellant
and perused the records. The legal position
regarding
the registration of FIRs in cases of
cognizable
offences is well settled. This Court, in
Lalita
Kumari (supra), has categorically held that
the
registration of an FIR is mandatory under Section
154 CrPC if
the information discloses the commission
of a
cognizable offence. The relevant paragraphs from
the judgment
of this Court in Lalita Kumari (supra)
are
reproduced below:
“114. 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
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 10 of 13
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
115. Although,
we, in unequivocal terms,
hold that
Section 154 of the Code
postulates
the mandatory registration of
FIRs on
receipt of all cognizable offences,
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.
…
Conclusion/Directions
120. In view
of the aforesaid discussion, we
hold:
120.1. The
registration of FIR is
mandatory
under Section 154 of the
Code, if the
information discloses
commission
of a cognizable offence and
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 11 of 13
no
preliminary inquiry is permissible in
such a
situation.
120.2. 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.
120.3. 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.”
[Emphasis
supplied]
12. The
scope of a preliminary inquiry, as clarified in the
said
judgment, is limited to situations where the
information
received does not prima facie disclose a
cognizable
offence but requires verification. However,
in cases
where the information clearly discloses a
cognizable
offence, the police have no discretion to
conduct a
preliminary inquiry before registering an
FIR. The
decision in Lalita Kumari (supra) does not
create an
absolute rule that a preliminary inquiry
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 12 of 13
must be
conducted in every case before the
registration
of an FIR. Rather, it reaffirms the settled
principle
that the police authorities are obligated to
register an
FIR when the information received prima
facie
discloses a cognizable offence.
13. In the
present case, the allegations against the
appellant
pertain to the abuse of official position and
corrupt
practices while holding public office. Such
allegations
fall squarely within the category of
cognizable
offences, and there exists no legal
requirement
for a preliminary inquiry before the
registration
of an FIR in such cases. The appellant’s
contention
that successive FIRs have been registered
against him
with an ulterior motive is a matter that
can be
examined during the course of investigation
and trial.
The appellant has adequate remedies under
the law,
including the right to seek quashing of
frivolous
FIRs under Section 482 CrPC, the right to
apply for
bail, and the right to challenge any illegal
actions of
the investigating authorities before the
appropriate
forum.
14. Further,
this Court cannot issue a blanket direction
restraining
the registration of FIRs against the
CRL.NO….2025@SLP(CRL.)
NO. 3154/2024 Page 13 of 13
appellant or
mandating a preliminary inquiry in all
future cases
involving him. Such a direction would
not only be
contrary to the statutory framework of the
CrPC but
would also amount to judicial overreach. As
rightly
observed by the High Court, courts cannot
rewrite
statutory provisions or introduce additional
procedural
safeguards that are not contemplated by
law.
15. In view
of the foregoing discussion, we find no merit
in the
present appeal. Accordingly, the same is
dismissed.
However, it is clarified that this order shall
not preclude
the appellant from availing any other
remedies
available to him under the law in respect of
the pending
FIRs or future proceedings.
……………………………………J.
[VIKRAM
NATH]
……………………………………J.
[PRASANNA B.
VARALE]
NEW DELHI;
MARCH 17,
2025
Crl. M.C.No.1782/2009
Page 1 of 12 *
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 06 th October, 2009
Judgment Delivered on: 13th October, 2009 + CRL.M.C.1782/2009
PUNIT PRUTI & ORS. .....
Petitioners Through: Mr.Mahish Vashisht, Adv.
versus
STATE GOVT. OF N.C.T. OF DELHI & ANR. .....
Respondents Through: Mr.Ramesh Gupta, Sr.Adv. with Ms.Seema
Gulati & Mr.Bharat Sharma, Advts.
CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. On 16.7.2008 petitioners had been summoned on the charge
sheet filed under Sections 420/469/471/120B of the IPC, Police Station
Chitranjan Park. The petitioner no.1 is Punit Pruti, petitioner no.2 is Sameer
Pruthi, both are the sons of petitioner no.3 Diwan Chand Pruthi. This order of
summoning is the subject matter of the present petition.
2. The undisputed facts are that Mr.L.R. Aggarwal and
Mr.Rajesh Aggarwa, directors, of M/s Krishi Rasayan Exports Pvt. 2009:DHC:4266
Crl. M.C.No.1782/2009 Page 2 of 12 Ltd. had business dealings with petitioner
no.1 in real estate. The Haryana State Industrial Development Corporation (hereinafter
referred to as the HSIDC) floated a scheme for development of an Industrial
Technology Park at Manesar, Gurgaon, Haryana. Petitioner no.1, Mr.L.R.Aggarwal
his son Rajesh Aggarwal and one Gurinder Singh Kamboj had agreed to form a
company in the name of M/s Krish Techno Park Pvt. Ltd. to be registered with
the Registrar of Companies, Jalandhar, Punjab in order to prepare a project
report for allotment of 10 acres of land for the development of this I.T.Park.
A sum of Rs.50 lacs was arranged and deposited in favaour of HSIDC, Panchkula
pursuant to an application for allotment of land but the said application was
rejected. The amount of Rs.50 lacs was refunded by the HISDC in the name of M/s
Krish Techno Park Pvt. Ltd. which had been incorporated in July 2006.
3. Parties thereafter desired that final accounts between
them be settled and a post dated cheque bearing no.143403 dated 30.11.2006 for
Rs.50 lacs drawn on the Bank of India, Chandigarh Branch was issued by
petitioner no.1 in favour of M/s Krishi Rasayan Exports Pvt. Ltd. The said
cheque was, however, dishonoured and accordingly a complaint under Section 138
of the Negotiable Instrument Act was filed by M/s Krishi Rasayan Exports Pvt.
Ltd. against petitioner no.1 and petitioner no.2 which is pending disposal in
the court of Metropolitan Magistrate, Kolkatta. 2009:DHC:4266 Crl.
M.C.No.1782/2009 Page 3 of 12 This complaint is dated 27.4.2007. On 14.7.2007
M/s Krishi Rasayana Export Pvt. Ltd. filed a complaint against the petitioners
herein namely Punit Pruthi, Sameer Pruthi and Diwan Chand Pruthi, petitioner
nos.1 and 2 being the directors of M/s Krish Techno Park Pvt. Ltd. After
investigation charge sheet was filed under Sections 420/469/471/120B of the IPC
and cognizance was taken vide impugned order dated 16.7.2008.
4. The facts as detailed supra are not in dispute.
5. Learned counsel for the petitioner has assailed the
impugned order primarily on three grounds: a)- It is submitted that the Delhi
Courts have no jurisdiction to try the present complaint which is an FIR under
Section 420/468/471/120B of the IPC; no cause of action had taken place in
Delhi; the offer for allotment of land was made at Manesar by the HSIDC; the
project report was submitted to the HSIDC at Panchkula; cheuque of Rs.50 lacs
was deposited with HSIDC, again outside the jurisdiction of the Delhi Courts;
the proposal was also rejected by HSIDC which is again outside the jurisdiction
of Delhi Courts. As such no cause of action has arisen within the territorial
jurisdiction of Delhi; trial of the present proceedings are barred. b)- The FIR
is a gross abuse of the process of the court as a complaint under Section 138
of Negotiable Instrument Act 2009:DHC:4266 Crl. M.C.No.1782/2009 Page 4 of 12
on the same cause of action has already been filed. The notice dated 01.3.2007
issued under Section 138 Negotiable Act does not whisper a word about any
allegation of cheating; so also the subsequent complaint which is also silent
on the said aspect. The belated complaint under Section 420 of the IPC in the
month of July 2007 is an afterthought and a gross misuse of the process of the
court only to harass and pressurize the petitioners. Reliance has been placed
upon a judgment of the Hon’ble Apex Court reported as (2000) II SCC 636 G.
Sagar Suri & Another vs. State of U.P. & Others to substantiate the
submission that where a complaint under Section 138 of Negotiable Instrument
Act had already been filed and no explanation has been offered as to why in the
said complaint details of the offence now contained in the present FIR had not
been mentioned, it is apparent that the subsequent complaint is an abuse of
process of law; a chagrined and frustrated litigant should not be permitted to
give vent to his frustration by cheaply invoking the jurisdiction of the
criminal Court in such a manner.
c)- The last submission of the learned counsel for the
petitioner is that the ingredients of Section 420 of the IPC which necessary
entail –
i). Deception;
2009:DHC:4266 Crl. M.C.No.1782/2009 Page 5 of 12
ii). Fraudulently or dishonestly inducing any person to
deliver any property or;
iii). To consent that any person shall retain any property
and finally intentionally inducing that person to do or omit to do anything
which he would not do or omit are clearly missing in the instant case. No act
of inducement on the part of the petitioners has been alleged by the
complainant. Reliance has been placed on judgments reported as (2007) 7 SCC 373
Vir Prakash Sharma vs. Anil Kumar Agarwal & Anr. and (2009) 1 SCC (Crl.)
996 V.Y. Jose and Anr. vs. State of Gujrat & Anr. to substantiate his
submission that in the absence of the existence of the said ingredients the
alleged offence of cheating is not made out and the complaint is liable to be
quashed. 6. These submissions have been opposed by the learned counsel for the
non-applicant.
7. It is stated that the cause of action has arisen within
the jurisdiction of the Delhi Courts and the deception and misrepresentation by
the petitioners was practiced by the petitioners in the transaction and the
negotiations conducted between the parties while there were in Delhi. The
ingredients of Section 420 of the IPC are different and distinct from the
offence as contained in Section 138 of the Negotiable Instruments Act and the
pendency of civil proceedings by themselves do not bar the 2009:DHC:4266 Crl.
M.C.No.1782/2009 Page 6 of 12 prosecution of a criminal complaint; this is
clear from the tenor of the provisions of Section 138 of Negotiable Instruments
Act and the offence as detailed in Section 420 of the IPC.
8. Submissions have been appreciated and the record has been
perused.
9. It is not in dispute that the petitioners herein are all
residents of M-255, Greater Kailash. This address has been mentioned by them in
their memo of parties. M/s Krishi Rasayan Exports Pvt. Ltd. of whom the
complaint Mr.L.R.Aggarwal is a director has its office at Hemkunt Tower, Nehru
Place. This is also the address given by the petitioner in the present
petition. It is also not in dispute that the negotiations and the discussions
between the parties took place while they were in Delhi and the cheque of Rs.50
lacs had been issued by petitioner no.1 to M/s Krishi Rasayan Exports Pvt.Ltd.
while they were in Delhi.
10. Chapter XIII of the Code deals with jurisdiction of the
Criminal Courts in inquries and trials. Section 177 incorporates the
ordinary/general rule of jurisdiction, as stated above, while the Sections
following it, viz., 178 to 182 embody the exceptions. The general principle of
law is that all crime is local and the jurisdiction to try a person for an
offence depends upon the crime having been committed within the area of such
jurisdiction. Section 182 states that any offence which includes cheating may,
if the deception is practiced by means of letter of telecommunication messages,
be 2009:DHC:4266 Crl. M.C.No.1782/2009 Page 7 of 12 inquired into or tried by
any Court within whose local jurisdiction such letters or messages were sent or
were received; and any offence of cheating and dishonestly inducing delivery of
property may be inquired into or tried by a Court within whose local
jurisdiction the property was delivered by the person deceived or was received
by the accused person.
11. In 1982 CLJ 1492 Bhola Nath Arora vs. State the
territorial jurisdiction of the Court to try the offence under Section 420 of
the IPC had been questioned; the ratio of the said judgment states that the
place where deception has been practiced and the inducement made would have the
jurisdiction to try the offence.
12. In AIR 1957 SC 857 Mubarak Ali Ahmed vs. The State of
Bombay, Hon’ble Supreme Court while dealing with the question of jurisdiction
of a criminal Court where the complainant was doing business from Goa and
appellant at that time was in Karachi; the transactions between the two parties
having been held through telephone, telegram and letters and at no time the
appellant having been in Goa during the entire period of commission of the
offence and he being only at Karachi, Pakistan; the Hon’ble Apex Court after examining
the ingredients of Section 420 of the IPC had held that although the
mis-representation and the deception was organized by the appellant while he
was in Pakistan yet the consequences of the deception i.e. delivery of the
2009:DHC:4266 Crl. M.C.No.1782/2009 Page 8 of 12 property had taken place in
Bombay and as such the Courts in India would not be precluded from trying the
said offence.
13. In the instant case it is apparent from the aforestated
position at law that the jurisdiction of Delhi Courts is not ousted.
14. The second and the third submission of the learned
counsel are intertwined and can be dealt with co-jointly. Complaint under
Section 138 of Negotiable Act has been filed on 27.4.2007 and is undisputedly
pending in the court of Metropolitan Magistrate Kolkotta. Present complaint has
been filed on 14.7.2007 wherein it has been averred that the petitioner did not
inform the complainant about the initial refund of Rs.50 lacs by HSIDC and they
had retained the said amount with them fraudulently and dishonestly. It was
only after a follow up that the complainant came to know that the accused
persons had not shown the name of Mr.Rajesh Aggarwal and Mr.L.R. Aggarwal as
directors of M/s Krish Techno Park Pvt. Ltd. although their names had been shown
as directors in the project report submitted to the HSIDC. On further inquiry
it was revealed that although the names of Mr.Rajesh Aggarwal and Mr.L.R.
Aggarwal have been given as Directors in the original application yet their
names stood deleted in the articles of association fraudulently by submitting
false resignation letters which were forged and fabricated as they did not bear
the signatures of Mr.L.R. Aggarwal and Mr.Rajesh Aggarwal. The report of the
CFSL, Rohini dated 11.3.2008 2009:DHC:4266 Crl. M.C.No.1782/2009 Page 9 of 12
supports this contention as contained in the complaint and the resignation
letters purportedly issued by Mr.L.R. Aggarwal and Mr.Rajesh Aggarwal have not
been signed by them. The complaint further recites that after several dates a
meeting has been arranged between the parties when the petitioners herein had
issued a post dated cheque of Rs.50 lacs which stood dishonoured; the said
cheque had not been returned back to the complainant but had been
mis-appropriated by the petitioner in connivance with the bank officials of
Chandigarh. The complaint further recites that it was a fraudulent and
dishonest inducement by the petitioner to the complainant which had led the
complainant to part with Rs.50 lacs as application fees.
15. The ingredients of cheating is defined in Section 415 of
the IPC entail a fraudulent or a dishonest inducement of the complainant to
either deliver any property or to consent that any such person shall retain any
property or intentionally inducing the complainant to do or omit to do anything
which he would not do or omit to do if he were not so deceived, and which act
or omission causes or is likely to cause damage or harm to that person in body,
mind, reputation or property. Illustration (f) to the said Section of the
Indian Penal Code, provides a clue to the mind of the legislature in such
matters. The said illustration is as under:- "A intentionally deceives Z
into a belief that A means to repay any money that Z may lend to him and
thereby dishonestly induces Z to lend him money. A not intending to repay it. A
cheats." 2009:DHC:4266 Crl. M.C.No.1782/2009 Page 10 of 12
16. On its plain language it is manifest from this
illustration that what is material is the intention of the drawer at the time
the cheque is issued, and the intention has to be gathered from the facts on
the record. If from the circumstances it is established that the failure to
meet a cheque was not accidental but was the consequence expected by the
accused, the presumption would be that the accused intended to cheat.
17. In 1996 JCC 590 M.M. Monga vs. Union of India, it has
been held by a co-ordinate Bench of this Court that a complaint under Section
138 of Negotiable Instrument Act is not a bar for filing a complaint under
Section 420/120 B of the IPC if a prima facie case is made out.
18. In 2009(2) JCC (NI)73 R.P. Mathur Prop. RLF vs. S.R.P.
Industries Ltd it has been held that the offence under Section 138 of
Negotiable Instrument Act and the offence under Section 420 of the IPC are two
distinct and separate offences with different ingredients and under two
separate enactments; separate punishments are provided for the two sets of the
offences; proceedings against an accused at the initial stage can be quashed
only if on the face of the complaint or on the papers accompanying the same no
offence is constituted. The offence under Section 138 of Negotiable Instrument
Act is completed when once the cheque issued was dishonoured and the said
dishonor of cheque is brought to the notice of the drawer of the cheque;
2009:DHC:4266 Crl. M.C.No.1782/2009 Page 11 of 12 whereas for the offence under
Section 420 of the IPC, it is necessary for the prosecution to establish that
the accused had no intention of paying anything and knowing that the cheque would
be dishonoured he had issued the cheque which had ultimately been dishonoured.
Ingredients of Section 420 of the IPC and Section 138 of Negotiable Instruments
Act are distinctly different and operate in two different spheres.
19. The judgment relied upon by the learned defence counsel
as reported in “G. Sagar Suri” supra is distinct in its own facts; in the
course of the investigation of the said FIR it had been recorded that both G.
Sagar Suri and his wife Shama Suri were not the directors of M/s Ganga
Automobiles Pvt. Ltd which had been taken into account while quashing the FIR
against them under Section 482 of the Cr. P.C.
20. It is apparent that in the instant case the complainant
had been induced by the petitioners that they would be floating a joint company
in the name of M/s Krish Techno Park Pvt. Ltd. of whom the complainant Mr.L.R.
Aggarwal and Mr.Rajesh Aggarwal would also be the directors; it was on this
inducement that the complainant had invested money in the project which did not
fructify; after several deliberations a cheque of Rs.50 lacs was issued by the
petitioner to the complainant which was dishonoured. The dishonest intention of
the petitioner can also be gathered from the letters of resignation purported
to have been 2009:DHC:4266 Crl. M.C.No.1782/2009 Page 12 of 12 issued by
Mr.L.R.Aggarwal and Mr.Rajesh Aggarwal to the Registrar of Companies to delete
their name from the articles of association of their newly floated company i.e.
M/s Krish Technopark Pvt. Ltd. which as per the report of CFSL are not in their
handwritings.
21. Prima facie ingredients of the offence of which
cognizance has been taken are made out. There is no merit in the revision
petition. It is dismissed.
(INDERMEET KAUR) JUDGE
13th October, 2009
nandan 2009:DHC:4266