Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence

Series: Window to the past…

The 5-Judge Constitution Bench headed by Hon’ble CJI P Sathasivam has held that 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.

QUESTION REFERRED TO THE CONSTITUTION BENCH

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 ?

BRIEF FACTS OF THE CASE

A 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 of the petitioner is that on 11.05.2008, a written report was submitted by the petitioner before the officer in-charge of the police station concerned who did not take any action on the same. Thereafter, when the Superintendent of Police was moved, an FIR was registered. According to the petitioner, even thereafter, steps were not taken either for apprehending the accused or for the recovery of the minor girl child.

A Division Bench of Hon’ble Supreme Court heard the matter and issued certain directions for Police across nation and also stated that if they are not complied strictly, then it may amounts to contempt. When the matter was again heard by the same bench, 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, Selvi vs. State of Tamil Nadu 1981 Supp SCC 43 Shashikant vs. Central Bureau of Investigation (2007) 1 SCC 630, and Rajinder Singh Katoch vs. Chandigarh Admn. (2007) 10 SCC 69.

In view of the conflicting decisions of the Court on the issue, the said bench, vide order dated 16.09.2008, referred the same to a larger bench. The Full bench of the Hon’ble Supreme referred the matter to the Constitution Bench while concluding as under:-

“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.”

CONTENTIONS OF PETITIONER AND RESPONDENTS

The learned Senior counsels for the petitioner as well as respondents relied heavily on past precedents in support of their contention but none of them have disputed the fact that scope of Police Discretion in registering the F.I.R. is very less.

TWO MAIN CONFLICTING AREAS OF CONCERN BEFORE THE BENCH

1. 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
2. Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused.

HON’BLE COURT’S OBSERVATIONS

The Hon’ble Constitution Bench observed that :-

“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.”

The Hon’ble court while interpreting S.154 Cr.P.C observed that :-

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

The Hon’ble Bench while referring to Bhajan Lal Vs. State of U.P. observed that :-

“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.”

Dealing with the contention of 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 the Hon’ble court observed that

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

On the issue of reasonableness and credibility of ‘Information’ the Hon’ble Court after citing various precedents held that “reasonableness or creditability of the information is not a condition precedent for the registration of a case.”

The Hon’ble court on the question of conducting preliminary enquiry first before registration of F.I.R. held that :-

“75) The maxim expression unius est exclusion alterius (expression of one thing is the exclusion of another) applies in the interpretation of Section 154 of the Code, where the mandate of recording the information in writing excludes the possibility of not recording an information of commission of a cognizable crime in the special register.

76) Therefore, conducting an investigation into an offence after registration of FIR under Section 154 of the Code is the “procedure established by law” and, thus, is in conformity with Article 21 of the Constitution. Accordingly, the right of the accused under Article 21 of the Constitution is protected if the FIR is registered first and then the investigation is conducted in accordance with the provisions of law”

The Hon’ble Constitution Bench on Significance and Compelling reasons for registration of FIR at the earliest held that :-

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

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:

1. a) It is the first step to ‘access to justice’ for a victim.
2. 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.
3. c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.
4. d) It leads to less manipulation in criminal cases and lessens incidents of ‘ante-dates’ FIR or deliberately delayed FIR.”

Further the Hon’ble Constitution Bench disposed of the reference with following observations :-

“(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

(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.”

Case Title :- Lalita Kumari Vs. Govt. of U.P. & others

Case no. :- WRIT PETITION (CRIMINAL) NO. 68 OF 2008

Order date :- 12.11.2013