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IN THE HIGH COURT OF PUNJAB AND HARYANA

                  AT CHANDIGARH

 

                                 CRR 151 of 2025 (O&M)

                                 Date of Decision: 10.03.2025

 

Jugjit Kaur                                                   ...Petitioner

                                 Versus

Rajwinder Singh                                         ... Respondent

 

CORAM :       HON'BLE MR. JUSTICE N.S.SHEKHAWAT

 

Present :     Mr. A.P.S.Deol, Senior Advocate with

              Mr. Himmat Singh Deol, Advocate

              for the petitioner.

 

              Mr. J.S. Mehndiratta, Advocate/Amicus Curiae and

              Mr. P.K.S. Phoolka, Advocate

              for the respondent.

 

 

N.S.SHEKHAWAT, J. (Oral)

 

 

 

1. The petitioner has filed the present revision petition against the impugned judgment dated 09.01.2025 passed by the Court of Additional Sessions Judge, Bathinda and judgment and order dated 25.10.2017 passed by the Judicial Magistrate 1st Class, Bathinda, whereby, the petitioner has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act 1881 (hereinafter to be referred as 'the Act') and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 10,000/-. In default of payment of fine, she would further undergo 1 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -2- rigorous imprisonment for two months. However, no compensation has been awarded to the respondent/complainant in the present case.

 

2. The brief facts, as highlighted in the complaint before the trial Court were that petitioner and her husband had close family relations with the respondent/complainant and out of need of money for the business purposes, petitioner, being Sole Prop. of M/s. Matharu Agro Industries, borrowed a sum of Rs.19,00,000/- in cash from the respondent about six months ago in the presence of Desa Singh son of Jawala Singh and Balwinder Singh son of Pal Singh, residents of village Dialpura, Distt. Bathinda and at the time of borrowing the said amount, petitioner had agreed to repay the said amount to the respondent within the period of six months and also issued a post dated cheque No.030622 dated 02.04.2015 for a sum of Rs.19,00,000/- in favour of the respondent from her account maintained by the petitioner with State bank of Patiala, Goniana Mandi in the presence of aforesaid witnesses and at the time of issuance of cheque in question, petitioner had assured the respondent that the said cheque will be honoured as and when the same is presented for encashment on the due date. Bonafidely believing the assurance of the petitioner, respondent accepted the said cheque and since the accused did not repay the said amount of Rs.19,00,000/- to respondent within the period of six months, as such the respondent, after informing the petitioner, presented the said cheque in his account 2 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -3- with HDFC Bank, Goniana for encashment and the banker of the respondent further sent the said cheque to banker of the petitioner for clearance but the said cheque remained dishonoured and the same had been returned by the banker of the petitioner to the banker of the respondent along with cheque returning memo dated 03.04.2015 with remarks 'Account Closed'. After the receipt of the dishonoured cheque and memo, respondent got issued a legal notice dated 15.04.2015 posted on 17.04.2015 upon the petitioner through his counsel intimating the petitioner about the dishonour of the cheque and recalling to make the payment but the petitioner failed to make the payment of dishonoured cheque.

 

3. After completion of the trial, the petitioner was held guilty for the commission of an offence punishable under Section 138 of the Act. However, while awarding the sentence, the petitioner was ordered to undergo rigorous imprisonment for a period of two years, but was directed to pay a fine of Rs.10,000/- only and in default of payment of fine, she would further undergo rigorous imprisonment for a period of two months only and no compensation was awarded to the respondent. The petitioner/accused filed an appeal before the Court of District and Sessions Judge, Bathinda and the appellate Court/Court of Additional Sessions Judge, Bathinda, upheld the judgment of conviction and sentence passed by the trial Court.

Challenging the impugned judgment, the petitioner/accused preferred present revision petition before this Court.

 

4. After the issuance of the notice, the respondent did not appear before the Court despite service. Consequently, Mr. J.S. Mehndiratta, Advocate, was appointed as Amicus Curiae to assist the Court on behalf of respondent. Later on, Mr. P.K.S. Phoolka, Advocate, also appeared to represent the respondent and he was also heard by the Court. During the course of hearing of the matter, this Court had noticed that the prosecution in the present case was launched by the respondent/complainant for the dishonour of a cheque of Rs. 19,00,000/-, which was issued by the petitioner ten years ago on 02nd April, 2015. However, while awarding the sentence, the trial Court had directed the petitioner to pay a meager sum of Rs. 10,000/- only as fine and no amount of compensation was awarded to the respondent/complainant. Since, this Court felt that the trial Court should have exercised its discretion to impose fine and to order payment of compensation to the respondent, learned counsel for the parties were heard on the issue of awarding of adequate amount of compensation in view of the provisions of Section 138 read with Section 142 of the Act.

 

5. Having heard learned counsel for the petitioner and perused the record, the only question that begs determination in this case is what should be the approach of the trial Court while awarding 4 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -5- punishment to an accused convicted for commission of offence under Section 138 of the Act; whether the trial Court should, with or without the punishment of imprisonment, impose fine which is sufficient enough to meet the liability of the accused towards the complainant as represented by the bounced cheque ?.

 

6. With a view to appreciate the issue raised by learned counsel for the petitioner, it is necessary to first set out Section 138 of the Act.

 

    "138. Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

    Provided that nothing contained in this section shall apply unless—

 

     (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

 

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and,

 

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability".

 

7. As is apparent from a bare reading of Section 138 of the Act reproduced above, the Criminal Court after convicting the accused, is empowered to impose punishment of imprisonment for a term, which may extend to two years, or fine which may extend to twice the amount of cheque, or both. The trial Court is, thus, given the discretion to impose the sentence of imprisonment or fine or both.

 

8. That from a perusal of the provisions of Section 138 of the Act, it is apparent that the trial Court is empowered to award the imprisonment for a term, which may extend to two years or fine, which may extend to twice the amount of cheque or both. Thus, the trial Court was granted the discretion to impose the sentence of 6 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -7- imprisonment or fine or both. Still further, while exercising this discretion, the trial Court must put in mind the object of the enactment, i.e., Negotiable Instruments Act, particularly the object of engrafting the provisions of Section 138 of the Act on the statute book. The prime object of enacting Chapter XVII, which was inserted in the Act by way of Act No. 66 of 1988 was to control and discourage the menace of cheque bouncing in the course of commercial transactions and to encourage the culture of use of cheques and enhancing the credibility of the instrument. The observations made by the Hon'ble Supreme Court in the matter of Damoder S. Prabhu vs Sayed Babalal H. (2010) 5 SCC 663 are reproduced as under:

 

    "3. However, there are some larger issues which can be appropriately addressed in the context of the present case. It may be recalled that Chapter XVII comprising Sections 138 to 142 was inserted into the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). The object of bringing Section 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. It was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. If the cheque is dishonoured for insufficiency of

 

7 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -8- funds in the drawer's account or if it exceeds the amount arranged to be paid from that account, the drawer is to be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both"

 

    "4 It may be noted that when the offence was inserted in the statute in 1988, it carried the provision for imprisonment up to one year, which was revised to two years following the amendment to the Act in 2002. It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a fine which may extend to twice the amount of the cheque serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions".

 

9. Later in paragraphs (17) and 18 of the said judgment, the Hon'ble Supreme Court, referring to recently published commentary on the topic of Section 138 of N.I. Act, made very apt observations. It was noticed by the Hon'ble Supreme that unlike other forms of crime, the punishment for commission of offence under Section 138 of the Act is not a means of seeking retribution, but is more a means to ensure payment of money and, therefore, in respect of offence of 8 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -9- dishonor of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. For ready reference, the observations of the Hon'ble Supreme Court in paragraphs (17) and (18) are reproduced:

 

    "17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act. Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque. If we were to examine the number of complaints filed which were `compromised' or `settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued."

 

18 It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice- delivery. The problem herein is 9 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -10- with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned Attorney General have stressed on the fact that unlike Section 320 of the CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court"

 

10. Similarly in the matter of Somnath Sarkar vs Utpal Basu Mallick and another, (2013) 16 SCC 465, the Hon'ble Supreme Court while considering the issue in paragraph (15) has summed up its observations in the following manner:

 

    15........ Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon the appellant.. Inasmuch as the High Court did so, it committed no jurisdictional error....."

 

11. The Hon'ble Jammu and Kashmir High Court in the case of Abdul Hamid Mir Vs. Tariq Ahmad Khan (561-A Cr.P.C. No. 124/2015, decided on 20.02.2018) has also made the similar observations.

 

12. From a reading of provisions of Section 138 of the Act in the context of laudable object sought to be achieved by Chapter XVII of the Act, it is abundantly clear that the Criminal Court while convicting an accused for commission of offence under Section 138 10 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -11- of the Act, cannot ignore the compensatory aspect of remedy and the compensatory aspect can only be given due regard if the sentence imposed is at least commensurate to the amount of cheque, if not more, so that this fine, once imposed, can be appropriated towards payment of compensation to the complainant by having resort to Section 357 of Cr.P.C. Before I proceed, it would be appropriate to set out the provisions of Section 357 as well.

 

    "357. Order to pay compensation-(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied:-

 

    (a) in defraying the expenses properly incurred in the prosecution;

 

    (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

 

    (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

 

    (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly

 

11 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -12- received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

 

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

 

(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section".

 

13. Even, the Hon'ble Supreme Court of India has held in the matter of Suganthi Suresh Kumar Vs. Jagdeeshan 2002(2) SCC 420 that the object of Section 138 of the Act is not only punitive, but compensatory as well. The Hon'ble Supreme Court clearly held that 12 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -13- the compensatory aspect must receive priority over the punitive aspect of Section 138 of the Act and the held as follows:-

 

    "The total amount covered by the cheques involved in the present two cases was Rs. 4,50,000. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flee-bite sentence as had been chosen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount at least during the pendency of the case"

 

14. In a later case of R. Vijayan vs Baby & Anr, (2012) 1 SCC 260, their Lordships of Hon'ble Supreme Court culled out the following principle from the provisions of Chapter XVII of the Act which states as under:

 

    "The provision for levy of fine which is linked to the cheque amount and may extend to twice the amount of the cheque (section 138) thereby rendering section 13 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -14- 357(3) virtually infructuous in so far as cheque dishonour cases are concerned".

 

The Hon'ble Supreme Court in the later part of the said judgment while alluding to the intention of the Legislature for enacting Section 138 held thus:

 

    "17. The apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of compensation under section 357(1)(b) of the Code. Though a complaint under section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount, (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque. This is because of the provision enabling the court to levy a fine linked to the cheque amount and the usual direction in such cases is for payment as compensation, the cheque amount, as loss incurred by the complainant on account of dishonour of cheque, under section 357 (1)

 

    (b) of the Code and the provision for compounding the offences under section 138 of the Act. Most of the cases (except those where liability is denied) get compounded at one stage or the other by payment of the cheque amount with or without interest. Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount. A stage has 14 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -15-

 

reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonour, becoming secondary".

 

    "18. Having reached that stage, if some Magistrates go by the traditional view that the criminal proceedings are for imposing punishment on the accused, either imprisonment or fine or both, and there is no need to compensate the complainant, particularly if the complainant is not a `victim' in the real sense, but is a well-to- do financier or financing institution, difficulties and complications arise. In those cases where the discretion to direct payment of compensation is not exercised, it causes considerable difficulty to the complainant, as invariably, by the time the criminal case is decided, the limitation for filing civil cases would have expired. As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.

 

15 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -16- Uniformity and consistency in deciding similar cases by different courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice".

 

    "19. We are conscious of the fact that proceedings under section 138 of the Act cannot be treated as civil suits for recovery of the cheque amount with interest. We are also conscious of the fact that compensation awarded under section 357(1)(b) is not intended to be an elaborate exercise taking note of interest etc. Our observations are necessitated due to the need to have uniformity and consistency in decision making. In same type of cheque dishonour cases, after convicting the accused, if some courts grant compensation and if some other courts do not grant compensation, the inconsistency, though perfectly acceptable in the eye of law, will give rise to certain amount of uncertainty in the minds of litigants about the functioning of courts. Citizens will not be able to arrange or regulate their affairs in a proper manner as they will not know whether they should simultaneously file a civil suit or not. The problem is aggravated having regard to the fact that in spite of section 143(3) of the Act requiring the complaints in regard to cheque dishonour cases under section 138 of the Act to be concluded within six months from the date of the filing of the complaint, such cases seldom reach finality before three or four years let alone six months. These cases give rise to complications where civil suits have not been filed within three years on account of the pendency of the criminal cases. While it is not the duty of criminal courts to ensure that successful complainants

 

16 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -17- get the cheque amount also, it is their duty to have uniformity and consistency, with other courts dealing with similar cases."

 

15. Still further, the Hon'ble Supreme Court in the matter of Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197 expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time, the criminal case was decided. Even, this Court has no hesitation to hold that while imposing sentence under Section 138 of the Act, the Court should exercise its discretion in imposing fine by having regard to Section 357(3) of Cr.P.C. Rather, the Criminal Court should bear in the mind the laudable object of engrafting Chapter XVII containing Section 138 to 142 of the Act and give priority to compensatory aspect of remedy.

 

16. Indisputably, the Legislature has given discretion to the Magistrate to impose a sentence of fine which may extend to double the amount of cheque and, therefore, the sentence of fine whenever imposed by the Criminal Court upon conviction of accused under Section 138 of the Act must be sufficient enough to adequately compensate the complainant. The amount of cheque and the date from which the amount under the cheque has become payable along with 17 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -18- payment of reasonable interest may serve as good guide in this regard. To be consistent and uniform, it is always advisable to impose a fine equivalent to the amount of cheque plus at least 6% interest per annum from the date of cheque till the date of judgment of conviction. However, before inflicting such fine, the trial Magistrate must eschew the amount of interim compensation, if any, paid under Section 143A of the Act or such other sum which the accused might have paid during the trial or otherwise towards discharge of liability. It may or may not accompany the sentence of simple imprisonment. It is purely in the discretion of the trial Magistrate but having regarding to the object of legislation, it shall be appropriate if the sentence of imprisonment imposed is kept at the minimum unless, of course, the conduct of accused demands otherwise.

 

17. In the present case also, it is apparent that the trial Court has miserably failed to take into account the peculiar facts of the present case and has imposed a fine of Rs.10,000/- only under Section 138 of the Act and in default of payment of fine, the petitioner/accused had been directed to further undergo rigorous imprisonment for a period of two months and no amount of compensation was awarded. Thus, the respondent, who was the complainant before the trial Court had even been deprived of an amount of Rs.19,00,000/-, which had become payable to him on 02.04.2015, i.e., about 10 years ago.

 

18. Consequently, the present revision petition is allowed and the impugned judgment passed by the appellate Court, i.e., the Court of Sh. Mahesh Grover, Additional Sessions Judge, Bathinda and the order on quantum of sentence dated 25.10.2017 passed by the Court of Rajbinder Kaur, Judicial Magistrate 1st Class, Bathinda, are set-aside and the matter is remanded back to the trial Court for considering the imposition of sentence on the present petitioner, de- novo, in the light of the legal preposition discussed and the observations made hereinabove.

 

19. Needless to observe that the trial Court shall hear the parties afresh, before imposing the sentence on the petitioner.

 

20. Since, the petitioner is in custody, she shall be released on bail on her furnishing bail bonds/surety bonds to the satisfaction of the learned trial Court/Duty Magistrate/CJM concerned till the passing of order on quantum of sentence by the trial Court and, thereafter, the trial Court shall proceed in accordance with law.

 

21. Before parting with the judgment, this Court places on record its deep appreciation for Mr. J.S. Mehndiratta, learned Amicus Curiae, who had rendered able assistance to the Court.

 

22. Apart from this, I deem it appropriate to direct the Registrar General of this Court to circulate this judgment to all the judicial officers, subject to the jurisdiction of this Court, so that the uniformity and inconsistency in the matter of imposing the sentence 19 of 20 Neutral Citation No:=2025:PHHC:033187 CRR 151 of 2025 (O&M) -20- of fine having regard to the compensatory aspect of the remedy under Section 138 of the Act is ensured.

 

23. All pending applications, if any, are disposed off, accordingly.

 

 

 

 

10.03.2025                            (N.S.SHEKHAWAT)

amit rana                                     JUDGE

 

 

               Whether reasoned/speaking :      Yes/No

               Whether reportable          :    Yes/No

 

 

 

 

 

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. 

1. Lalita Kumari Vs State of UP - 12 November 2013
2. Pradip Nirankarnath Sharma Vs State of Gujrat - 17 March 2025 
3. 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

 

2

Page 3          

 

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

 

3

Page 4

 

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,

 

4

Page 5

 

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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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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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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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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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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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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Page 35

 

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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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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Page 37

 

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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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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Page 40

 

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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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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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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Page 48

 

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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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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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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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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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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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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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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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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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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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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(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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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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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.

 

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(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

 

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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.

 

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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