TRIDIBESH DASGUPTA (HERITAGE LAW COLLEGE)
ABSTRACT:
A writ petition of Habeas Corpus was filed under The Indian Constitution, 1950 Article 32 by Lalita Kumari (minor) through her father, since no report or an FIR was registered by the police on being informed of commission of a cognizable offence, which in this case was kidnapping. A question was raised in the court whether registering a report or an FIR is mandatory under the Section 154 of the Code of Criminal Procedure. After being referred to a Constitutional Bench, the court on hearing various arguments from both, the petitioner and respondents, concluded that it is mandatory to register an FIR, if the reported information is commission of a cognizable offence. The Court further, provided with several guidelines regarding the registration of an FIR.
FACTS OF THE CASE:
1. A writ petition was filed under The Indian Constitution, 1950, Article 32 by Lalita Kumari (minor) through her father, namely, Shri Bhola Kumari for issuance of a writ of Habeas Corpus for the protection of his daughter who was kidnapped.
2. The cause of the said writ petition was that on 11.05.2008, a report in writing was submitted by the petitioner (Shri Bhola Kumari) before the officer in-charge of the concerned police station, who did not take any action. Not even an FIR was lodged under Section 154 of the Code of Criminal Procedure, 1973. Thereafter, when the Superintendent of Police was by the petitioner, an FIR was lodged on his directions. Even thereafter no adequate steps or actions were taken for apprehension of the accused or for recovery of the minor child.
3. In Lalita Kumari v. Government Of Uttar Pradesh & Or, (2008) 7 SCC 164, a two-bench judge on noticing that on case to case basis across the country there is a disparity in registration of FIRs by police personals, issued a notice to the Union of India, Commissioners of Police and Chief Secretaries of all State & Union Territories of India to effect if any steps not taken for lodging or registration of a FIR and therefore if the copies of the report are not handed over to the complainant, they may approach the concerned Magistrate by filling complaint petition for appropriate instructions or directions to the police to register the case at once and to apprehend the accused. If a police personal fails to do so, proceedings of contempt must be initiated against such negligent police personal if no sufficient cause is shown.
4. The very same bench heard the matter in Lalita Kumari v. Government Of Uttar Pradesh & Ors (2008) 14 SCC 337. On this issue there were conflicting decisions of the court, therefore the said bench vide order dated 16.09.2008 and referred the same to a larger bench.
5. A Bench of thee-Judges in Lalita Kumari v. Government of Uttar Pradesh & Ors (2012) 4 SCC 1 and the court after hearing to various counsels representing Union of India, States and Union Territories and referring to all the conflicting decisions, further referred the matter to a Constitutional Bench.
ISSUE
Whether under Section 154 of the Code of Criminal Procedure, 1973 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 registration the FIR.
CONTENTIONS
1. In Lalita Kumari v. Government Of Uttar Pradesh & Ors (2008) 14 SCC 337, Mr S.B. Upadhyay, learned senior counsel for the petitioner, conveyed that once information is received by a police officer in-charge of a concerned police station of disclosing of a cognizable offence, it is obligatory for him to register a report or lodge an FIR under Section 154 of the Code of Criminal Procedure, 1973.
2. Mr Shekhar Naphade, learned senior counsel for the State of Maharashtra in Lalita Kumari v. Government of Uttar Pradesh & Ors (2008) 14 SCC 337, conveyed that an officer in-charged is not obliged under any law, to register a report or an FIR upon receiving information disclosing commission of a cognizable offence and added that, the discretion lies with the officer in-charge to hold some sort inquiry in relation to the authenticity of the accusations made in the report.
ARGUMENTS FROM THE PETITIONER
1. Mr S.B. Upadhyay argued that Section 154(1) of the Code of Criminal Procedure, 1973 is mandatory as the use of the word “shall” indicates that there is no discretion left for the police except registration of a report or FIR. To support his proposition, he relied on the courts following decisions namely, M/s Hiralal Rattanlal Etc. Etc. v. State of U.P. and Ors. Etc. Etc. (1973) 1 SCC 216, Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra and Ors. (1975) 2 SCC 482 and B. Premanand and Ors. v. Mohan Koikal and Others (2011) 4 SCC 266.
2. He further drew the attention towards the language used in the previous mentioned section that word ‘information’ is merely mentioned without prefixing the words ‘reasonable’ or ‘credible’. To sustain this claim he relied on the following decisions of the court, namely, Ganesh Bhavan Patel and Another v. State of Maharashtra (1978) 4 SCC 371, Ram Lal Narang v. State (Delhi Administration) (1979) 2 SCC 322, State of Haryana v. Bhajan Lal (1992) Supp. (1) SCC 335, Aleque Padamsee and Others v. Union of India and Others (2007) 6 SCC 171, Ramesh Kumari v. State (NCT of Delhi) (2006) 2 SCC 677and Lallan Chaudhary and Others v. State of Bihar and Ors (2006) 12 SCC 229.
ARGUMENTS FROM THE RESPONDENTS
1. Learned Additional Solicitor, Mr K.V. Viswanathan, appearing on behalf of Union of India contented that it is mandatory for the police to register a report or FIR in all the cases where information regarding commission of a cognizable offence is received under Section 154 of the Code of Criminal Procedure, 1973. He also added that when an officer proceeds to the spot on the basis of a rumour, or source information, has to immediately a report (ruqqa) to the police station, on gathering information relating to the commission of a cognizable offence, so that the same can be registered as FIR. To justify his claim, he relied on the decisions of the court namely, Bhajan Lal (supra), Aleque Padamsee (supra), Ramesh Kumari (supra), State of Uttar Pradesh v. Sevi v. State of Tamil Nadu 1981 Supp SCC 43, Sirajuddin v. State of Madras (1970) 1 SCC 595, Rajinder Singh Katoch v. Chandigarh Administration (2007) 10 SCC 69, and Jacob Mathew v. State of Punjab & Ors. (2005) 6 SCC 1.
2. Dr Ashok Dhamija, learned counsel for the CBI, contended that the word “shall” under Section 154(1) of the Code clearly implies a mandate. Therefore, if the information given to a police officer reports commission of a cognizable offence, then it is mandatory for him to register the offence. He further contented, that the Section 154 of the Code does not use the qualified words such as “credible information” or “reasonable complaint” rather uses the word “information” unconditionally. To sustain his arguments he relied on State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal (2010) 3 SCC 571, Khub Chand v. State of Rajasthan AIR 1967 SC 1074, Superintendent of Police, CBI v. Tapan Kumar Singh (2003) 6 SCC 175 and several other.
3. On behalf of the State of West Bengal, learned senior counsel, Mr. Kalyan Bandopadhyay submitted that it is the duty of the officer in-charge of a police station to record a report, whenever any information relating to commission of a cognizable offence is received and a copy of such recorded report has to be given free of cost, to the informant under Section 154(2) of the Code. He referred to the court’s decision on the following cases to sustain his submission viz., Ashok Kumar Todi v. Kishwar Jahan and Others (2011) 3 SCC 758, H.N. Rishbud and Inder Singh v. State of Delhi AIR 1955 SC 196, S.N. Sharma v. Bipen Kumar Tiwari (1970) 1 SCC 653 and many others.
4. Dr Manish Singhvi, learned Additional Advocate General for the State of Rajasthan, contended that it is mandatory to register an FIR under Section 154(1) of the Code and pointed out that the only exception relates to cases emerging 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 troublesome cases cannot be filed to harass them.
5. Learned counsel for the appellant in Criminal Appeal No. 1410 of 2011, Mr G. Sivabalamurugan stressed as to why the compulsory registration of FIR is mandatory, after tracing the earlier history, namely, the relevant provisions in the Code of Criminal Procedure of 1861, 1872, 1882 and 1898. The insertion of Section 13 of the Criminal Law (Amendment) Act, 2013 and the recommendations of the Report of the 41st Law Commission were highlighted by him.
6. Mr R.K. Dash, learned senior counsel appearing for the State of Uttar Pradesh, commenced his initial argument as in order to check unnecessary hassle or harassment to innocent public by false complaint it is necessary for the police to conduct a preliminary inquiry into the allegations should proceed with the registration of FIR. Though after considering the salient features of the Code of Criminal Procedure, 1973, various provisions namely Sections 2(4) (h), 156(1), 202(1), 164, and various provisions from the U.P. Police Regulations, he contended that 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.
7. Mr Sidharth Luthra learned Additional Solicitor General appearing for the State of Chhattisgarh commenced his arguments by elaborated on various judgments which held that an officer in-charge on receiving information of commission of a cognizable offence under Section 154 of the Code has discretion to conduct preliminary inquiry before registration of FIR. Mr Sidharth Luthra presented a comparative analysis of Section 154 of the Code of Criminal Procedure of 1898 and of 1973 and subsequently highlighted that every activity which occurs in a police station is entered in a diary which is maintained at the police station and may be called as the General Diary. The relevance of General Diary was underline by him with reference to various decisions, such as Tapan Kumar Singh (supra), Re: Subbaratnam & Ors. AIR 1949 Madras 663
8. The learned senior counsel, Mr Shekhar Naphade, appearing on behalf of the State of Maharashtra conveyed that Station House Officer (SHO) should record an FIR upon receiving information disclosing a cognizable offence, but in certain cases, such as doubt about the correctness and credibility of the information he should have discretion of conducting a preliminary inquiry, before registering a FIR. He further on argued on reliance to decisions namely, P. Sirajuddin v. State of Madras (1970) 1 SCC 595, Rajinder Singh Katoch (supra), and Sevi (supra), which hold that, it is open to the police to conduct a preliminary inquiry before registering an FIR to ascertain whether there is a prima facie case of commission of a cognizable offence or not.
9. Ms Vibha Datta Makhija, learned senior counsel appearing for the State of Madhya Pradesh, contented that plain reading of Section 154 of the Code show that it may not be mandatory but absolutely in every way the police is obligated to register a FIR when commission of a cognizable offence is reported (whether written or oral). Further on she added that under the statutory framework of the Code only some preliminary inquiry or investigation is permissible prior to registration of FIR. Hence, she added that an investigation leading up to a final report under Section 173 of the Code cannot be questioned or quashed down because the said inquiry or investigation is conducted after the first information is received but prior to the registration of that very same information.
JUDGEMENT
In the light of aforementioned observations, a Constitutional Bench of the Supreme Court held that registration of First Information Report is mandatory under, The Code of Criminal Procedure, Section 154, if the information reports commission of a cognizable offence and no preliminary inquiry is permitted in such a case. If the received information does not report commission of a cognizable offence but disclose necessary reasons for an inquiry, a preliminary inquiry may be conducted only to determine whether cognizable offence is disclosed or not. The Court issued the following Guidelines regarding the registration of FIR:-
1. Registry of an FIR is mandatory under Section 154 of the Code, if the information received reports commission of a cognizable offence and no preliminary inquiry is permitted in such a situation.
2. If the information received does not report a cognizable offence but indicates necessary reasons for an inquiry, a preliminary inquiry may be conducted, but only to determine whether commission of a cognizable offence is reported or not.
3. If the inquiry reports the commission of a cognizable offence, the FIR must be registered. If in cases the preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be handed to the informant at once and not later than one week. It must contain reasons in brief for closing the complaint.
4. The police officer is bound to register offence if cognizable offence is reported. Action must be taken against officers who do not register the FIR if information received by him reports commission of a cognizable offence.
5. In which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The 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) In Cases where there is suspicious delay in commencing criminal prosecution, for example, over 3-4 months delay in reporting the matter with unsatisfactorily explaining the reasons.
6. A preliminary inquiry should not exceed 7 days to ensure and protect the rights of the accused and the complainant. The fact of such delay must be recorded in the General Diary entry.
7. Since all information received in the police station is recorded in the General Diary/Station Diary/Daily Diary, all information relating to cognizable offences, whether resulting in registration of FIR or leading to a preliminary inquiry, must be mandatorily reflected in the said Diary and the decision to conduct the inquiry must also be reflected.
REFRENCES:
1. https://indiankanoon.org/doc/10239019/
2. https://www.casemine.com/judgement/in/5609af1fe4b0149711415ae3
3. https://www.latestlaws.com/articles/interpretation-of-statutes-case-study-lalita-kumari-v-state-of-uttar-pradesh/
4. http://www.legalserviceindia.com/legal/article-2870-lalita-kumari-v-s-state-of-u-p.html
5. https://theprint.in/theprint-essential/whats-lalita-kumari-case-sc-verdict-judge-muralidhar-held-up-as-model-for-delhi-police/372375/
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