The Supreme Court on held that in the matter (judgment) that it is mandatory for police to register FIR if a complainant approaches it for the registration of a cognizable offence.
The five judge Constitution bench headed by Chief Justice P Sathasivam said that action will be taken against the police officer for his failure to register a First Information Report (FIR) on the complaint of a cognizable offence.
The legislative intent is for compulsory registration of FIR in case of cognizable offence, said Chief Justice Sathasivam, speaking for the bench.
The preliminary investigation has to be completed within 7 days and its purpose is only to find out whether it gives information about a serious offence and not to test the veracity of the complaint, the Supreme Court said.
An apex court further said that the preliminary investigation prior to the registration is permissible in cases relating to disputes in matrimony, corruption, financial dealings and certain other categories.
Cognizable offences are those which attract punishment of three years or more in case of conviction and where an investigating officer can arrest an accused without warrant.
——————————————————————————————————————————————————————————
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
P.Sathasivam, CJI.
2
1) The important issue which arises for consideration in
the referred matter is whether “a police officer is bound to
register a First Information Report (FIR) upon receiving any
information relating to commission of a cognizable offence
under Section 154 of the Code of Criminal Procedure, 1973
(in short ‘the Code’) or the police officer has the power to
conduct a “preliminary inquiry” in order to test the veracity
of such information before registering the same?”
2) The present writ petition, under Article 32 of the
Constitution, has been filed by one Lalita Kumari (minor)
through her father, viz., Shri Bhola Kamat for the issuance
of a writ of Habeas Corpus or direction(s) of like nature
against the respondents herein for the protection of his
minor daughter who has been kidnapped. The grievance in
the said writ petition is that on 11.05.2008, a written report
was submitted by the petitioner before the officer in-charge
of the police station concerned who did not take any action
on the same. Thereafter, when the Superintendent of Police
was moved, an FIR was registered. According to the
petitioner, even thereafter, steps were not taken either for
apprehending the accused or for the recovery of the minor
3
girl child.
3) A two-Judge Bench of this Court in, Lalita Kumari
vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC
164, after noticing the disparity in registration of FIRs by
police officers on case to case basis across the country,
issued notice to the Union of India, the Chief Secretaries of
all the States and Union Territories and Director Generals of
Police/Commissioners of Police to the effect that if steps are
not taken for registration of FIRs immediately and the
copies thereof are not handed over to the complainants,
they may move the Magistrates concerned by filing
complaint petitions for appropriate direction(s) to the police
to register the case immediately and for apprehending the
accused persons, failing which, contempt proceedings must
be initiated against such delinquent police officers if no
sufficient cause is shown.
4) Pursuant to the above directions, when the matter was
heard by the very same Bench in Lalita Kumari vs.
Government of Uttar Pradesh & Ors. (2008) 14 SCC 337,
Mr. S.B. Upadhyay, learned senior counsel for the
petitioner, projected his claim that upon receipt of
4
information by a police officer in-charge of a police station
disclosing a cognizable offence, it is imperative for him to
register a case under Section 154 of the Code and placed
reliance upon two-Judge Bench decisions of this Court in
State of Haryana vs. Bhajan Lal 1992 Supp. (1) SCC 335,
Ramesh Kumari vs. State (NCT of Delhi) (2006) 2 SCC
677 and Parkash Singh Badal vs. State of Punjab (2007)
1 SCC 1. On the other hand, Mr. Shekhar Naphade,
learned senior counsel for the State of Maharashtra
submitted that an officer in-charge of a police station is not
obliged under law, upon receipt of information disclosing
commission of a cognizable offence, to register a case rather
the discretion lies with him, in appropriate cases, to hold
some sort of preliminary inquiry in relation to the veracity
or otherwise of the accusations made in the report. In
support of his submission, he placed reliance upon two-
Judge Bench decisions of this Court in P. Sirajuddin vs.
State of Madras (1970) 1 SCC 595, Sevi vs. State of
Tamil Nadu 1981 Supp SCC 43, Shashikant vs. Central
Bureau of Investigation (2007) 1 SCC 630, and Rajinder
Singh Katoch vs. Chandigarh Admn. (2007) 10 SCC 69.
5
In view of the conflicting decisions of this Court on the
issue, the said bench, vide order dated 16.09.2008, referred
the same to a larger bench.
5) Ensuing compliance to the above direction, the matter
pertaining to Lalita Kumari was heard by a Bench of three-
Judges in Lalita Kumari vs. Government of Uttar
Pradesh & Ors. (2012) 4 SCC 1 wherein, this Court, after
hearing various counsel representing Union of India, States
and Union Territories and also after adverting to all the
conflicting decisions extensively, referred the matter to a
Constitution Bench while concluding as under:-
“97. We have carefully analysed various judgments
delivered by this Court in the last several decades. We clearly
discern divergent judicial opinions of this Court on the main
issue: whether under Section 154 CrPC, a police officer is
bound to register an FIR when a cognizable offence is made
out or he (police officer) has an option, discretion or latitude
of conducting some kind of preliminary inquiry before
registering the FIR.
98. The learned counsel appearing for the Union of India
and different States have expressed totally divergent views
even before this Court. This Court also carved out a special
category in the case of medical doctors in the aforementioned
cases of Santosh Kumar and Suresh Gupta where preliminary
inquiry had been postulated before registering an FIR. Some
counsel also submitted that the CBI Manual also envisages
some kind of preliminary inquiry before registering the FIR.
99. The issue which has arisen for consideration in these
cases is of great public importance. In view of the divergent
opinions in a large number of cases decided by this Court, it
has become extremely important to have a clear enunciation
6
of law and adjudication by a larger Bench of this Court for
the benefit of all concerned—the courts, the investigating
agencies and the citizens.
100. Consequently, we request the Hon’ble the Chief
Justice to refer these matters to a Constitution Bench of at
least five Judges of this Court for an authoritative judgment.”
6) Therefore, the only question before this Constitution
Bench relates to the interpretation of Section 154 of the
Code and incidentally to consider Sections 156 and 157
also.
7) Heard Mr. S.B. Upadhyay, learned senior counsel for
the petitioner, Mr. K.V. Vishwanathan, learned Additional
Solicitor General for the Union of India, Mr. Sidharth
Luthra, learned Additional Solicitor General for the State of
Chhattisgarh, Mr. Shekhar Naphade, Mr. R.K. Dash, Ms.
Vibha Datta Makhija, learned senior counsel for the State of
Maharashtra, U.P. and M.P. respectively, Mr. G.
Sivabalamurugan, learned counsel for the accused, Dr.
Ashok Dhamija, learned counsel for the CBI, Mr. Kalyan
Bandopodhya, learned senior counsel for the State of West
Bengal, Dr. Manish Singhvi, learned AAG for the State of
Rajasthan and Mr. Sudarshan Singh Rawat.
8) In order to answer the main issue posed before this
7
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 subsection
(1) shall be given forthwith, free of cost, to the
informant.
(3) Any person aggrieved by a refusal on the part of an
officer in charge of a police station to record the
information referred to in subsection (1) may send the
substance of such information, in writing and by post, to
the Superintendent of Police concerned who, if satisfied
that such information discloses the commission of a
cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any police
officer subordinate to him, in the manner provided by this
Code, and such officer shall have all the powers of an
officer in charge of the police station in relation to that
offence.
156. Police officer’s power to investigate cognizable
case. (1) Any officer in charge of a police station may,
without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the
local area within the limits of such station would have
power to inquire into or try under the provisions of
Chapter XIII.
(2) No proceeding of a police officer in any such case shall
at any stage be called in question on the ground that the
case was one which such officer was not empowered
under this section to investigate.
(3) Any Magistrate empowered under section 190 may
order such an investigation as above- mentioned.
8
157. Procedure for investigation: (1) If, from
information received or otherwise, an officer in charge of a
police station has reason to suspect the commission of an
offence which he is empowered under Section 156 to
investigate, he shall forthwith send a report of the same to
a Magistrate empowered to take cognizance of such
offence upon a police report and shall proceed in person,
or shall depute one of his subordinate officers not being
below such rank as the State Government may, by
general or special order, prescribe in this behalf, to
proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary, to take
measures for the discovery and arrest of the offender:
Provided that-
(a) when information as to the commission of any such
offence is given against any person by name and the case
is not of a serious nature, the officer in charge of a police
station need not proceed in person or depute a
subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station
that there is no sufficient ground for entering on an
investigation, he shall not investigate the case.
Provided further that in relation to an offence of rape, the
recording of statement of the victim shall be conducted at
the residence of the victim or in the place of her choice
and as far as practicable by a woman police officer in the
presence of her parents or guardian or near relatives or
social worker of the locality.
(2) In each of the cases mentioned in clauses (a) and (b) of
the proviso to sub- section (1), the officer in charge of the
police station shall state in his report his reasons for not
fully complying with the requirements of that sub-section,
and, in the case mentioned in clause (b) of the said
proviso, the officer shall also forthwith notify to the
informant, if any, in such manner as may be prescribed
by the State Government, the fact that he will not
investigate the case or cause it to be investigated.”
Contentions:
9) At the foremost, Mr. S.B. Upadhyay, learned senior
counsel, while explaining the conditions mentioned in
9
Section 154 submitted that Section 154(1) is mandatory as
the use of the word ‘shall’ is indicative of the statutory
intent of the legislature. He also contended that there is no
discretion left to the police officer except to register an FIR.
In support of the above proposition, he relied on the
following decisions, viz., B. Premanand and Ors. vs.
Mohan Koikal and Others (2011) 4 SCC 266, M/s Hiralal
Rattanlal Etc. Etc. vs. State of U.P. and Anr. Etc. Etc.
(1973) 1 SCC 216 and Govindlal Chhaganlal Patel vs.
Agricultural Produce Market Committee, Godhra and
Ors. (1975) 2 SCC 482.
10) Mr. Upadhyay, by further drawing our attention to the
language used in Section 154(1) of the Code, contended that
it merely mentions ‘information’ without prefixing the words
‘reasonable’ or ‘credible’. In order to substantiate this
claim, he relied on the following decisions, viz., Bhajan Lal
(supra), Ganesh Bhavan Patel and Another vs. State of
Maharashtra (1978) 4 SCC 371, Aleque Padamsee and
Others vs. Union of India and Others (2007) 6 SCC 171,
Ramesh Kumari (supra), Ram Lal Narang vs. State
(Delhi Administration) (1979) 2 SCC 322 and Lallan
10
Chaudhary and Others vs. State of Bihar and Another
(2006) 12 SCC 229. Besides, he also brought to light various
adverse impacts of allowing police officers to hold
preliminary inquiry before registering an FIR.
11) Mr. K.V. Viswanathan, learned Additional Solicitor
General appearing on behalf of Union of India submitted
that in all the cases where information is received under
Section 154 of the Code, it is mandatory for the police to
forthwith enter the same into the register maintained for the
said purpose, if the same relates to commission of a
cognizable offence. According to learned ASG, the police
authorities have no discretion or authority, whatsoever, to
ascertain the veracity of such information before deciding to
register it. He also pointed out that a police officer, who
proceeds to the spot under Sections 156 and 157 of the
Code, on the basis of either a cryptic information or source
information, or a rumour etc., has to immediately, on
gathering information relating to the commission of a
cognizable offence, send a report (ruqqa) to the police
station so that the same can be registered as FIR. He also
highlighted the scheme of the Code relating to the
11
registration of FIR, arrest, various protections provided to
the accused and the power of police to close investigation.
In support of his claim, he relied on various decisions of this
Court viz., Bhajan Lal (supra), Ramesh Kumari (supra)
and Aleque Padamsee (supra). He also deliberated upon
the distinguishable judgments in conflict with the
mandatory proposition, viz., State of Uttar Pradesh vs.
Bhagwant Kishore Joshi (1964) 3 SCR 71, P. Sirajuddin
(supra), Sevi (supra), Shashikant (supra), Rajinder Singh
Katoch (supra), Jacob Mathew vs. State of Punjab &
Anr. (2005) 6 SCC 1. He concluded his arguments by
saying that if any information disclosing a cognizable
offence is led before an officer in-charge of a police station
satisfying the requirements of Section 154(1) of the Code,
the said police officer has no other option except to enter
the substance thereof in the prescribed form, that is to say,
to register a case on the basis of such information. Further,
he emphasized upon various safeguards provided under the
Code against filing a false case.
12) Dr. Ashok Dhamija, learned counsel for the CBI,
submitted that the use of the word “shall” under Section
12
154(1) of the Code clearly mandates that if the information
given to a police officer relates to the commission of a
cognizable offence, then it is mandatory for him to register
the offence. According to learned counsel, in such
circumstances, there is no option or discretion given to the
police. He further contended that the word “shall” clearly
implies a mandate and is unmistakably indicative of the
statutory intent. What is necessary, according to him, is
only that the information given to the police must disclose
commission of a cognizable offence. He also contended that
Section 154 of the Code uses the word “information”
simpliciter and does not use the qualified words such as
“credible information” or “reasonable complaint”. Thus, the
intention of the Parliament is unequivocally clear from the
language employed that a mere information relating to
commission of a cognizable offence is sufficient to register
an FIR. He also relied on Bhajan Lal (supra), Ramesh
Kumari (supra), Aleque Padamsee (supra), Lallan
Chaudhary (supra), Superintendent of Police, CBI vs.
Tapan Kumar Singh (2003) 6 SCC 175, M/s Hiralal
Rattanlal (supra), B. Premanand (supra), Khub Chand
13
vs. State of Rajasthan AIR 1967 SC 1074, P. Sirajuddin
(supra), Rajinder Singh Katoch (supra), Bhagwant
Kishore Joshi (supra), State of West Bengal vs.
Committee for Protection of Democratic Rights, West
Bengal (2010) 3 SCC 571. He also pointed out various
safeguards provided in the Code against filing a false case.
In the end, he concluded by reiterating that the registration
of FIR is mandatory under Section 154 of the Code, if the
information discloses commission of a cognizable offence
and no preliminary inquiry is permissible in such a
situation. Further, he also clarified that the preliminary
inquiry conducted by the CBI, under certain situations, as
provided under the CBI Crime Manual, stands on a different
footing due to the special provisions relating to the CBI
contained in the Delhi Special Police Establishment Act,
1946, which is saved under Sections 4(2) and 5 of the Code.
13) Mr. Kalyan Bandopadhyay, learned senior counsel
appearing on behalf of the State of West Bengal, submitted
that whenever any information relating to commission of a
cognizable offence is received, it is the duty of the officer incharge
of a police station to record the same and a copy of
14
such information, shall be given forthwith, free of cost, to
the informant under Section 154(2) of the Code. According
to him, a police officer has no other alternative but to record
the information in relation to a cognizable offence in the
first instance. He also highlighted various subsequent steps
to be followed by the police officer pursuant to the
registration of an FIR. With regard to the scope of Section
154 of the Code, he relied on H.N. Rishbud and Inder
Singh vs. State of Delhi AIR 1955 SC 196, Bhajan Lal
(supra), S.N. Sharma vs. Bipen Kumar Tiwari (1970) 1
SCC 653, Union of India vs. Prakash P. Hinduja (2003) 6
SCC 195, Sheikh Hasib alias Tabarak vs. State of Bihar
(1972) 4 SCC 773, Shashikant (supra), Ashok Kumar
Todi vs. Kishwar Jahan and Others (2011) 3 SCC 758,
Padma Sundara Rao (Dead) and Others vs. State of T.N.
and Others (2002) 3 SCC 533, P. Sirajuddin (supra),
Rajinder Singh Katoch (supra), Bhagwant Kishore Joshi
(supra) and Mannalal Khatic vs. The State AIR 1967 Cal
478.
14) Dr. Manish Singhvi, learned Additional Advocate
General for the State of Rajasthan, submitted that Section
15
154(1) of the Code mandates compulsory registration of FIR.
He also highlighted various safeguards inbuilt in the Code
for lodging of false FIRs. He also pointed out that the only
exception relates to cases arising under the Prevention of
Corruption Act as, in those cases, sanction is necessary
before taking cognizance by the Magistrates and the public
servants are accorded some kind of protection so that
vexatious cases cannot be filed to harass them.
15) Mr. G. Sivabalamurugan, learned counsel for the
appellant in Criminal Appeal No. 1410 of 2011, after tracing
the earlier history, viz., the relevant provisions in the Code
of Criminal Procedure of 1861, 1872, 1882 and 1898
stressed as to why the compulsory registration of FIR is
mandatory. He also highlighted the recommendations of
the Report of the 41st Law Commission and insertion of
Section 13 of the Criminal Law (Amendment) Act, 2013 with
effect from 03.02.2013.
16) Mr. R.K. Dash, learned senior counsel appearing for
the State of Uttar Pradesh, though initially commenced his
arguments by asserting that in order to check unnecessary
harassment to innocent persons at the behest of
16
unscrupulous complainants, it is desirable that a
preliminary inquiry into the allegations should precede with
the registration of FIR but subsequently after considering
the salient features of the Code, various provisions like
Sections 2(4) (h), 156(1), 202(1), 164, various provisions
from the U.P. Police Regulations, learned senior counsel
contended that in no case recording of FIR should be
deferred till verification of its truth or otherwise in case of
information relating to a cognizable offence. In addition to
the same, he also relied on various pronouncements of this
Court, such as, Mohindro vs. State of Punjab (2001) 9
SCC 581, Ramesh Kumari (supra), Bhajan Lal (supra),
Parkash Singh Badal (supra), Munna Lal vs. State of
Himachal Pradesh 1992 Crl. L.J. 1558, Giridhari Lal
Kanak vs. State and others 2002 Crl. L.J. 2113 and
Katteri Moideen Kutty Haji vs. State of Kerala 2002 (2)
Crimes 143. Finally, he concluded that when the statutory
provisions, as envisaged in Chapter XII of the Code, are
clear and unambiguous, it would not be legally permissible
to allow the police to make a preliminary inquiry into the
allegations before registering an FIR under Section 154 of
17
the Code.
17) Mr. Sidharth Luthra, learned Additional Solicitor
General appearing for the State of Chhattisgarh,
commenced his arguments by emphasizing the scope of
reference before the Constitution Bench. Subsequently, he
elaborated on various judgments which held that an
investigating officer, on receiving information of commission
of a cognizable offence under Section 154 of the Code, has
power to conduct preliminary inquiry before registration of
FIR, viz., Bhagwant Kishore Joshi (supra), P. Sirajuddin
(supra), Sevi (supra) and Rajinder Singh Katoch (supra).
Concurrently, he also brought to our notice the following
decisions, viz., Bhajan Lal (supra), Ramesh Kumari
(supra), Parkash Singh Badal (supra), and Aleque
Padamsee (supra), which held that a police officer is duty
bound to register an FIR, upon receipt of information
disclosing commission of a cognizable offence and the power
of preliminary inquiry does not exist under the mandate of
Section 154. Learned ASG has put forth a comparative
analysis of Section 154 of the Code of Criminal Procedure of
1898 and of 1973. He also highlighted that every activity
18
which occurs in a police station [Section 2(s)] is entered in a
diary maintained at the police station which may be called
as the General Diary, Station Diary or Daily Diary. He
underlined the relevance of General Diary by referring to
various judicial decisions such as Tapan Kumar Singh
(supra), Re: Subbaratnam & Ors. AIR 1949 Madras 663.
He further pointed out that, presently, throughout the
country, in matrimonial, commercial, medical negligence
and corruption related offences, there exist provisions for
conducting an inquiry or preliminary inquiry by the police,
without/before registering an FIR under Section 154 of the
Code. He also brought to our notice various police rules
prevailing in the States of Punjab, Rajasthan, U.P., Madhya
Pradesh, Kolkata, Bombay, etc., for conducting an inquiry
before registering an FIR. Besides, he also attempted to
draw an inference from the Crime Manual of the CBI to
highlight that a preliminary inquiry before registering a case
is permissible and legitimate in the eyes of law. Adverting to
the above contentions, he concluded by pleading that
preliminary inquiry before registration of an FIR should be
held permissible. Further, he emphasized that the power to
19
carry out an inquiry or preliminary inquiry by the police,
which precedes the registration of FIR will eliminate the
misuse of the process, as the registration of FIR serves as
an impediment against a person for various important
activities like applying for a job or a passport, etc. Learned
ASG further requested this Court to frame guidelines for
certain category of cases in which preliminary inquiry
should be made.
18) Mr. Shekhar Naphade, learned senior counsel
appearing on behalf of the State of Maharashtra, submitted
that ordinarily the Station House Officer (SHO) should
record an FIR upon receiving a complaint disclosing the
ingredients of a cognizable offence, but in certain situations,
in case of doubt about the correctness or credibility of the
information, he should have the discretion of holding a
preliminary inquiry and thereafter, if he is satisfied that
there is a prima facie case for investigation, register the FIR.
A mandatory duty of registering FIR should not be cast
upon him. According to him, this interpretation would
harmonize two extreme positions, viz., the proposition that
the moment the complaint disclosing ingredients of a
20
cognizable offence is lodged, the police officer must register
an FIR without any scrutiny whatsoever is an extreme
proposition and is contrary to the mandate of Article 21 of
the Constitution of India, similarly, the other extreme point
of view is that the police officer must investigate the case
substantially before registering an FIR. Accordingly, he
pointed out that both must be rejected and a middle path
must be chosen. He also submitted the following
judgments, viz., Bhajan Lal (supra), Ramesh Kumari
(supra), Parkash Singh Badal (supra), and Aleque
Padamsee (supra) wherein it has been held that if a
complaint alleging commission of a cognizable offence is
received in the police station, then the SHO has no other
option but to register an FIR under Section 154 of the Code.
According to learned senior counsel, these verdicts require
reconsideration as they have interpreted Section 154 de
hors the other provisions of the Code and have failed to
consider the impact of Article 21 on Section 154 of the
Code.
19) Alongside, he pointed out the following decisions, viz.,
Rajinder Singh Katoch (supra), P. Sirajuddin (supra),
21
Bhagwant Kishore Joshi (supra) and Sevi (supra), which
hold that before registering an FIR under Section 154 of the
Code, it is open to the police officer to hold a preliminary
inquiry to ascertain whether there is a prima facie case of
commission of a cognizable offence or not. According to
learned senior counsel, Section 154 of the Code forms part
of a chain of statutory provisions relating to investigation
and, therefore, the scheme of provisions of Sections 41, 157,
167, 169, etc., must have a bearing on the interpretation of
Section 154. In addition, he emphasized that giving a literal
interpretation would reduce the registration of FIR to a
mechanical act. Parallelly, he underscored the impact of
Article 21 on Section 154 of the Code by referring to
Maneka Gandhi vs. Union of India (1978) 1 SCC 248,
wherein this Court has applied Article 21 to several
provisions relating to criminal law. This Court has also
stated that the expression “law” contained in Article 21
necessarily postulates law which is reasonable and not
merely statutory provisions irrespective of its
reasonableness or otherwise. Learned senior counsel
pleaded that in the light of Article 21, provisions of Section
22
154 of the Code must be read down to mean that before
registering an FIR, the police officer must be satisfied that
there is a prima facie case for investigation. He also
emphasized that Section 154 contains implied power of the
police officer to hold preliminary inquiry if he bona fide
possess serious doubts about the credibility of the
information given to him. By pointing out Criminal Law
(Amendment) Act, 2013, particularly, Section 166A, Mr.
Naphade contended that as far as other cognizable offences
(apart from those mentioned in Section 166A) are
concerned, police has a discretion to hold preliminary
inquiry if there is some doubt about the correctness of the
information.
20) In case of allegations relating to medical negligence on
the part of the doctors, it is pointed out by drawing our
attention to some of the decisions of this Court viz., Tapan
Kumar Singh (supra), Jacob Mathew (supra) etc., that no
medical professional should be prosecuted merely on the
basis of the allegations in the complaint. By pointing out
various decisions, Mr. Naphade emphasized that in
appropriate cases, it would be proper for a police officer, on
23
receipt of a complaint of a cognizable offence, to satisfy
himself that at least prima facie allegations levelled against
the accused in the complaint are credible. He also
contended that no single provision of a statute can be read
and interpreted in isolation, but the statute must be read as
a whole. Accordingly, he prayed that the provisions of
Sections 41, 57, 156, 157, 159, 167, 190, 200 and 202 of
the Code must be read together. He also pointed out that
Section 154(3) of the Code enables any complainant whose
complaint is not registered as an FIR by the officer in-charge
of the police station to approach the higher police officer for
the purpose of getting his complaint registered as an FIR
and in such a case, the higher police officer has all the
powers of recording an FIR and directing investigation into
the matter. In addition to the remedy available to an
aggrieved person of approaching higher police officer, he can
also move the concerned Magistrate by making a complaint
under Section 190 thereof. He further emphasized that the
fact that the legislature has provided adequate remedies
against refusal to register FIR and to hold investigation in
cognizable offences, is indicative of legislative intent that the
24
police officer is not bound to record FIR merely because the
ingredients of a cognizable offence are disclosed in the
complaint, if he has doubts about the veracity of the
complaint. He also pointed out that the word “shall” used
in the statute does not always mean absence of any
discretion in the matter. For the said proposition, he also
highlighted that this Court has preferred the rule of
purposive interpretation to the rule of literal interpretation
for which he relied on Chairman Board of Mining
Examination and Chief Inspector of Mines and Another
vs. Ramjee (1977) 2 SCC 256, Lalit Mohan Pandey vs.
Pooran Singh (2004) 6 SCC 626, Prativa Bose vs. Kumar
Rupendra Deb Raikat (1964) 4 SCR 69. He further
pointed out that it is impossible to put the provisions of
Section 154 of the Code in a straightjacket formula. He also
prayed for framing of some guidelines as regards
registration or non-registration of FIR. Finally, he pointed
out that the requirement of Article 21 is that the procedure
should be fair and just. According to him, if the police
officer has doubts in the matter, it is imperative that he
should have the discretion of holding a preliminary inquiry
25
in the matter. If he is debarred from holding such a
preliminary inquiry, the procedure would then suffer from
the vice of arbitrariness and unreasonableness. Thus, he
concluded his arguments by pleading that Section 154 of
the Code must be interpreted in the light of Article 21.
21) Ms. Vibha Datta Makhija, learned senior counsel
appearing for the State of Madhya Pradesh submitted that a
plain reading of Section 154 and other provisions of the
Code shows that it may not be mandatory but is absolutely
obligatory on the part of the police officer to register an FIR
prior to taking any steps or conducting investigation into a
cognizable offence. She further pointed out that after
receiving the first information of an offence and prior to the
registration of the said report (whether oral or written) in
the First Information Book maintained at the police station
under various State Government regulations, only some
preliminary inquiry or investigative steps are permissible
under the statutory framework of the Code to the extent as
is justifiable and is within the window of statutory
discretion granted strictly for the purpose of ascertaining
whether there has been a commission or not of a cognizable
26
offence. Hence, an investigation, culminating into a Final
Report under Section 173 of the Code, cannot be called into
question and be quashed due to the reason that a part of
the inquiry, investigation or steps taken during investigation
are conducted after receiving the first information but prior
to registering the same unless it is found that the said
investigation is unfair, illegal, mala fide and has resulted in
grave prejudice to the right of the accused to fair
investigation. In support of the above contentions, she
traced the earlier provisions of the Code and current
statutory framework, viz., Criminal Law (Amendment) Act,
2013 with reference to various decisions of this Court. She
concluded that Section 154 of the Code leaves no area of
doubt that where a cognizable offence is disclosed, there is
no discretion on the part of the police to record or not to
record the said information, however, it may differ from case
to case.
22) The issues before the Constitution Bench of this Court
arise out of two main conflicting areas of concern, viz.,
(i) Whether the immediate non-registration of FIR leads to
scope for manipulation by the police which affects the
27
right of the victim/complainant to have a complaint
immediately investigated upon allegations being made;
and
(ii) Whether in cases where the complaint/information
does not clearly disclose the commission of a
cognizable offence but the FIR is compulsorily
registered then does it infringe the rights of an
accused.
Discussion:
23) The FIR is a pertinent document in the criminal law
procedure of our country and its main object from the point
of view of the informant is to set the criminal law in motion
and from the point of view of the investigating authorities is
to obtain information about the alleged criminal activity so
as to be able to take suitable steps to trace and to bring to
book the guilty.
24) Historical experience has thrown up cases from both
the sides where the grievance of the victim/informant of
non-registration of valid FIRs as well as that of the accused
of being unnecessarily harassed and investigated upon false
28
charges have been found to be correct.
25) An example of the first category of cases is found in
State of Maharashtra vs. Sarangdharsingh
Shivdassingh Chavan & Anr. (2011) 1 SCC 577 wherein
a writ petition was filed challenging the order of the
Collector in the District of Buldhana directing not to register
any crime against Mr. Gokulchand Sananda, without
obtaining clearance from the District Anti-Money Lending
Committee and the District Government Pleader. From the
record, it was revealed that out of 74 cases, only in seven
cases, charge sheets were filed alleging illegal moneylending.
This Court found that upon instructions given by the Chief
Minister to the District Collector, there was no registration
of FIR of the poor farmers. In these circumstances, this
Court held the said instructions to be ultra vires and
quashed the same. It is argued that cases like above exhibit
the mandatory character of Section 154, and if it is held
otherwise, it shall lead to grave injustice.
26) In Aleque Padamsee (supra), while dealing with the
issue whether it is within the powers of courts to issue a
writ directing the police to register a First Information
29
Report in a case where it was alleged that the accused had
made speeches likely to disturb communal harmony, this
Court held that “the police officials ought to register the FIR
whenever facts brought to their notice show that a
cognizable offence has been made out. In case the police
officials fail to do so, the modalities to be adopted are as set
out in Section 190 read with Section 200 of the Code.” As
such, the Code itself provides several checks for refusal on
the part of the police authorities under Section 154 of the
Code.
27) However, on the other hand, there are a number of
cases which exhibit that there are instances where the
power of the police to register an FIR and initiate an
investigation thereto are misused where a cognizable offence
is not made out from the contents of the complaint. A
significant case in this context is the case of Preeti Gupta
vs. State of Jharkhand (2010) 7 SCC 667 wherein this
Court has expressed its anxiety over misuse of Section 498-
A of the Indian Penal Code, 1860 (in short ‘the IPC’) with
respect to which a large number of frivolous reports were
lodged. This Court expressed its desire that the legislature
30
must take into consideration the informed public opinion
and the pragmatic realities to make necessary changes in
law.
28) The abovesaid judgment resulted in the 243rd Report of
the Law Commission of India submitted on 30th August,
2012. The Law Commission, in its Report, concluded that
though the offence under Section 498-A could be made
compoundable, however, the extent of misuse was not
established by empirical data, and, thus, could not be a
ground to denude the provision of its efficacy. The Law
Commission also observed that the law on the question
whether the registration of FIR could be postponed for a
reasonable time is in a state of uncertainty and can be
crystallized only upon this Court putting at rest the present
controversy.
29) In order to arrive at a conclusion in the light of
divergent views on the point and also to answer the above
contentions, it is pertinent to have a look at the historical
background of the Section and corresponding provisions
that existed in the previous enactments of the Code of
Criminal Procedure.
31
Code of Criminal Procedure, 1861
“139. Every complaint or information preferred to an
officer in charge of a police station, shall be reduced into
writing and the substance thereof shall be entered in a
diary to be kept by such officer, in such form as shall be
prescribed by the local government.”
Code of Criminal Procedure, 1872
“112. Every complaint preferred to an officer in charge of
a police station, shall be reduced into writing, and shall
be signed, sealed or marked by the person making it; and
the substance thereof shall be entered in a book to be
kept by such officer in the form prescribed by the local
government.”
Code of Criminal Procedure, 1882
“154. Every information relating to the commission of a
cognizable offence if given orally to an officer in charge of
a police station, shall be reduced to writing by him, or
under his direction, and be read over to the informant;
and every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be
entered in a book to be kept by such form as the
government may prescribe in this behalf.”
Code of Criminal Procedure, 1898
“154. Every information relating to the commission of a
cognizable offence if given orally to an officer in charge of
a police station, shall be reduced to writing by him or
under his direction, and be read over to the informant;
and every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be
entered in a book to be kept by such officer in such form
as the Government may prescribe in this behalf.”
Code of Criminal Procedure, 1973
32
“154. Information in cognizable cases: 1) Every
information relating to the commission of a cognizable
offence, it given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving
it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf.
[Provided that if the information is given by the woman
against whom an offence under Sections 326A, 326B,
354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C,
376D, 376E or Section 509 of the Indian Penal Code is
alleged to have been committed or attempted, then such
information shall be recorded by a woman police officer or
any woman officer:-
Provided further that:-
(a) in the event that the person against whom an offence
under Sections 354, 354A, 354B, 354C, 354D, 376, 376A,
376B, 376C, 376D, 376E or Section 509 of the Indian
Penal code is alleged to have been committed or
attempted is temporarily or permanently mentally or
physically disabled then such information shall be
recorded by a police officer, at the residence of the person
seeking to report such offence or at a convenient place of
such person’s choice, in the presence of an interpreter or
a special educator, as the case may be;
(b) the recording of such information shall be
videographed;
(c) the police officer shall get the statement of the
person recorded by a Judicial Magistrate under clause (a)
of sub-Section (5A) of Section 164 as soon as possible.]
(Inserted by Section 13 of ‘The Criminal Law
(Amendment) Act, 2013 w.e.f. 03.02.2013)
(2) A copy of the information as recorded under subsection
(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
33
the Superintendent of Police concerned who, if satisfied
that such information discloses the commission of a
cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any police
officer subordinate to him, in the manner provided by this
Code, and such officer shall have all the powers of an
officer in charge of the police station in relation to that
offence.
A perusal of the above said provisions manifests the
legislative intent in both old codes and the new code for
compulsory registration of FIR in a case of cognizable
offence without conducting any Preliminary Inquiry.
30) The precursor to the present Code of 1973 is the Code
of 1898 wherein substantial changes were made in the
powers and procedure of the police to investigate. The
starting point of the powers of police was changed from the
power of the officer in-charge of a police station to
investigate into a cognizable offence without the order of a
Magistrate, to the reduction of the first information
regarding commission of a cognizable offence, whether
received orally or in writing, into writing and into the book
separately prescribed by the Provincial government for
recording such first information.
31) As such, a significant change that took place by way of
the 1898 Code was with respect to the placement of Section
34
154, i.e., the provision imposing requirement of recording
the first information regarding commission of a cognizable
offence in the special book prior to Section 156, i.e., the
provision empowering the police officer to investigate a
cognizable offence. As such, the objective of such
placement of provisions was clear which was to ensure that
the recording of the first information should be the starting
point of any investigation by the police. In the interest of
expediency of investigation since there was no safeguard of
obtaining permission from the Magistrate to commence an
investigation, the said procedure of recording first
information in their books along with the signature/seal of
the informant, would act as an “extremely valuable
safeguard” against the excessive, mala fide and illegal
exercise of investigative powers by the police.
32) Provisions contained in Chapter XII of the Code deal
with information to the police and their powers to
investigate. The said Chapter sets out the procedure to be
followed during investigation. The objective to be achieved
by the procedure prescribed in the said Chapter is to set the
criminal law in motion and to provide for all procedural
35
safeguards so as to ensure that the investigation is fair and
is not mala fide and there is no scope of tampering with the
evidence collected during the investigation.
33) In addition, Mr. Shekhar Naphade, learned senior
counsel contended that insertion of Section 166A in IPC
indicates that registration of FIR is not compulsory for all
offences other than what is specified in the said Section. By
Criminal Law (Amendment) Act 2013, Section 166A was
inserted in Indian Penal Code which reads as under:-
“Section 166A—Whoever, being a public servant.—
(a) knowingly disobeys any direction of the law which
prohibits him from requiring the attendance at any place
of any person for the purpose of investigation into an
offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person,
any other direction of the law regulating the manner in
which he shall conduct such investigation, or
(c) fails to record any information given to him under subsection
(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
36
Section 154(1) of the Code in relation to cognizable offences
punishable under Sections 326A, 326B, 354, 354B, 370,
370A, 376, 376A 376B, 376C, 376D, 376E or Section 509,
he shall be punished with rigorous imprisonment for a term
which shall not be less than six months but may extend to
two years and shall also be liable to fine. Thus, it is the
stand of learned counsel that this provision clearly indicates
that registration of FIR is imperative and police officer has
no discretion in the matter in respect of offences specified in
the said section. Therefore, according to him, the legislature
accepts that as far as other cognizable offences are
concerned, police has discretion to hold a preliminary
inquiry if there is doubt about the correctness of the
information.
34) Although, the argument is as persuasive as it appears,
yet, we doubt whether such a presumption can be drawn in
contravention to the unambiguous words employed in the
said provision. Hence, insertion of Section 166A in the IPC
vide Criminal Law (Amendment) Act 2013, must be read in
consonance with the provision and not contrary to it. The
insertion of Section 166A was in the light of recent
37
unfortunate occurrence of offences against women. The
intention of the legislature in putting forth this amendment
was to tighten the already existing provisions to provide
enhanced safeguards to women. Therefore, the legislature,
after noticing the increasing crimes against women in our
country, thought it appropriate to expressly punish the
police officers for their failure to register FIRs in these cases.
No other meaning than this can be assigned to for the
insertion of the same.
35) With this background, let us discuss the submissions
in the light of various decisions both in favour and against
the referred issue.
Interpretation of Section 154:
36) It may be mentioned in this connection that the first
and foremost principle of interpretation of a statute in every
system of interpretation is the literal rule of interpretation.
All that we have to see at the very outset is what does the
provision say? As a result, the language employed in
Section 154 is the determinative factor of the legislative
intent. A plain reading of Section 154(1) of the Code
38
provides that any information relating to the commission of
a cognizable offence if given orally to an officer-in-charge of
a police station shall be reduced into writing by him or
under his direction. There is no ambiguity in the language
of Section 154(1) of the Code.
37) At this juncture, it is apposite to refer to the following
observations of this Court in M/s Hiralal Rattanlal (supra)
which are as under:
“22…In construing a statutory provision, the first and
the foremost rule of construction is the literary
construction. All that we have to see at the very outset is
what does that provision say? If the provision is
unambiguous and if from that provision, the legislative
intent is clear, we need not call into aid the other rules of
construction of statutes. The other rules of construction
of statutes are called into aid only when the legislative
intention is not clear…”
The above decision was followed by this Court in B.
Premanand (supra) and after referring the abovesaid
observations in the case of Hiralal Rattanlal (supra), this
Court observed as under:
“9. It may be mentioned in this connection that the
first and foremost principle of interpretation of a statute
in every system of interpretation is the literal rule of
interpretation. The other rules of interpretation e.g. the
mischief rule, purposive interpretation, etc. can only be
resorted to when the plain words of a statute are
ambiguous or lead to no intelligible results or if read
literally would nullify the very object of the statute. Where
the words of a statute are absolutely clear and
39
unambiguous, recourse cannot be had to the principles of
interpretation other than the literal rule, vide Swedish
Match AB v. SEBI (2004) 11 SCC 641.
The language of Section 154(1), therefore, admits of no
other construction but the literal construction.
38) The legislative intent of Section 154 is vividly
elaborated in Bhajan Lal (supra) which is as under:-
“30. The legal mandate enshrined in Section 154(1) is
that every information relating to the commission of a
“cognizable offence” (as defined Under Section 2(c) of the
Code) if given orally (in which case it is to be reduced into
writing) or in writing to “an officer incharge of a police
station” (within the meaning of Section 2(o) of the Code)
and signed by the informant should be entered in a book
to be kept by such officer in such form as the State
Government may prescribe which form is commonly
called as “First Information Report” and which act of
entering the information in the said form is known as
registration of a crime or a case.
31. At the stage of registration of a crime or a case on
the basis of the information disclosing a cognizable
offence in compliance with the mandate of Section 154(1)
of the Code, the concerned police officer cannot embark
upon an inquiry as to whether the information, laid by the
informant is reliable and genuine or otherwise and refuse
to register a case on the ground that the information is
not reliable or credible. On the other hand, the officer in
charge of a police station is statutorily obliged to register
a case and then to proceed with the investigation if he has
reason to suspect the commission of an offence which he
is empowered under Section 156 of the Code to
investigate, subject to the proviso to Section 157. (As we
have proposed to make a detailed discussion about the
power of a police officer in the field of investigation of a
cognizable offence within the ambit of Sections 156 and
157 of the Code in the ensuing part of this judgment, we
do not propose to deal with those sections in extenso in
the present context.) In case, an officer in charge of a
police station refuses to exercise the jurisdiction vested in
40
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 nonqualification
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.
41
33. It is, therefore, manifestly clear that if any
information disclosing a cognizable offence is laid before
an officer in charge of a police station satisfying the
requirements of Section 154(1) of the Code, the said police
officer has no other option except to enter the substance
thereof in the prescribed form, that is to say, to register a
case on the basis of such information.
39) Consequently, the condition that is sine qua non for
recording an FIR under Section 154 of the Code is that
there must be information and that information must
disclose a cognizable offence. If any information disclosing
a cognizable offence is led before an officer in charge of the
police station satisfying the requirement of Section 154(1),
the said police officer has no other option except to enter
the substance thereof in the prescribed form, that is to say,
to register a case on the basis of such information. The
provision of Section 154 of the Code is mandatory and the
concerned officer is duty bound to register the case on the
basis of information disclosing a cognizable offence. Thus,
the plain words of Section 154(1) of the Code have to be
given their literal meaning.
‘Shall’
40) The use of the word “shall” in Section 154(1) of the
Code clearly shows the legislative intent that it is mandatory
42
to register an FIR if the information given to the police
discloses the commission of a cognizable offence.
41) In Khub Chand (supra), this Court observed as under:
“7…The term “shall” in its ordinary significance is
mandatory and the court shall ordinarily give that
interpretation to that term unless such an interpretation
leads to some absurd or inconvenient consequence or be
at variance with the intent of the legislature, to be
collected from other parts of the Act. The construction of
the said expression depends on the provisions of a
particular Act, the setting in which the expression
appears, the object for which the direction is given, the
consequences that would flow from the infringement of
the direction and such other considerations…”
42) It is relevant to mention that the object of using the
word “shall” in the context of Section 154(1) of the Code is
to ensure that all information relating to all cognizable
offences is promptly registered by the police and
investigated in accordance with the provisions of law.
43) Investigation of offences and prosecution of offenders
are the duties of the State. For “cognizable offences”, a duty
has been cast upon the police to register FIR and to conduct
investigation except as otherwise permitted specifically
under Section 157 of the Code. If a discretion, option or
latitude is allowed to the police in the matter of registration
43
of FIRs, it can have serious consequences on the public
order situation and can also adversely affect the rights of
the victims including violating their fundamental right to
equality.
44) Therefore, the context in which the word “shall”
appears in Section 154(1) of the Code, the object for which it
has been used and the consequences that will follow from
the infringement of the direction to register FIRs, all these
factors clearly show that the word “shall” used in Section
154(1) needs to be given its ordinary meaning of being of
“mandatory” character. The provisions of Section 154(1) of
the Code, read in the light of the statutory scheme, do not
admit of conferring any discretion on the officer in-charge of
the police station for embarking upon a preliminary inquiry
prior to the registration of an FIR. It is settled position of
law that if the provision is unambiguous and the legislative
intent is clear, the court need not call into it any other rules
of construction.
45) In view of the above, the use of the word ‘shall’ coupled
with the Scheme of the Act lead to the conclusion that the
legislators intended that if an information relating to
44
commission of a cognizable offence is given, then it would
mandatorily be registered by the officer in-charge of the
police station. Reading ‘shall’ as ‘may’, as contended by
some counsel, would be against the Scheme of the Code.
Section 154 of the Code should be strictly construed and
the word ‘shall’ should be given its natural meaning. The
golden rule of interpretation can be given a go-by only in
cases where the language of the section is ambiguous
and/or leads to an absurdity.
46) In view of the above, we are satisfied that Section
154(1) of the Code does not have any ambiguity in this
regard and is in clear terms. It is relevant to mention that
Section 39 of the Code casts a statutory duty on every
person to inform about commission of certain offences
which includes offences covered by Sections 121 to 126,
302, 64-A, 382, 392 etc., of the IPC. It would be
incongruous to suggest that though it is the duty of every
citizen to inform about commission of an offence, but it is
not obligatory on the officer-incharge of a Police Station to
register the report. The word ‘shall’ occurring in Section 39
of the Code has to be given the same meaning as the word
45
‘shall’ occurring in Section 154(1) of the Code.
‘Book’/‘Diary’
47) It is contented by learned ASG appearing for the State
of Chhattisgarh that the recording of first information under
Section 154 in the ‘book’ is subsequent to the entry in the
General Diary/Station Diary/Daily Diary, which is
maintained in police station. Therefore, according to
learned ASG, first information is a document at the earliest
in the general diary, then if any preliminary inquiry is
needed the police officer may conduct the same and
thereafter the information will be registered as FIR.
48) This interpretation is wholly unfounded. The First
Information Report is in fact the “information” that is
received first in point of time, which is either given in
writing or is reduced to writing. It is not the “substance” of
it, which is to be entered in the diary prescribed by the
State Government. The term ‘General Diary’ (also called as
‘Station Diary’ or ‘Daily Diary’ in some States) is maintained
not under Section 154 of the Code but under the provisions
of Section 44 of the Police Act, 1861 in the States to which it
46
applies, or under the respective provisions of the Police
Act(s) applicable to a State or under the Police Manual of a
State, as the case may be. Section 44 of the Police Act,
1861 is reproduced below:-
“44. Police-officers to keep diary.—It shall be the
duty of every officer in charge of a police-station to
keep a general diary in such form as shall, from
time to time, be prescribed by the State
Government and to record therein all complaints
and charged preferred, the names of all persons
arrested, the names of the complainants, the
offences charged against them, the weapons or
property that shall have been taken from their
possession or otherwise, and the names of the
witnesses who shall have been examined. The
Magistrate of the district shall be at liberty to call
for any inspect such diary.”
49) It is pertinent to note that during the year 1861, when
the aforesaid Police Act, 1861 was passed, the Code of
Criminal Procedure, 1861 was also passed. Section 139 of
that Code dealt with registration of FIR and this Section is
also referred to the word “diary”, as can be seen from the
language of this Section, as reproduced below:-
“139. Every complaint or information preferred to an
officer in charge of a Police Station, shall be reduced into
writing, and the substance thereof shall be entered in a
diary to be kept by such officer, in such form as shall be
prescribed by the local government.”
Thus, Police Act, 1861 and the Code of Criminal Procedure,
1861, both of which were passed in the same year, used the
47
same word “diary”.
50) However, in the year 1872, a new Code came to be
passed which was called the Code of Criminal Procedure,
1872. Section 112 of the Code dealt with the issue of
registration of FIR and is reproduced below:-
“112. Every complaint preferred to an officer in charge of
a Police station shall be reduced into writing, and shall be
signed, sealed, or marked by the person making it; and
the substance thereof shall be entered in a book to be
kept by such officer in the form prescribed by the Local
Government.”
51) It is, thus, clear that in the Code of Criminal
Procedure, 1872, a departure was made and the word ‘book’
was used in place of ‘diary’. The word ‘book’ clearly referred
to FIR book to be maintained under the Code for
registration of FIRs.
52) The question that whether the FIR is to be recorded
in the FIR Book or in General Diary, is no more res integra.
This issue has already been decided authoritatively by this
Court.
53) In Madhu Bala vs. Suresh Kumar (1997) 8 SCC 476,
this Court has held that FIR must be registered in the FIR
48
Register which shall be a book consisting of 200 pages. It is
true that the substance of the information is also to be
mentioned in the Daily diary (or the general diary). But, the
basic requirement is to register the FIR in the FIR Book or
Register. Even in Bhajan Lal (supra), this Court held that
FIR has to be entered in a book in a form which is
commonly called the First Information Report.
54) It is thus clear that registration of FIR is to be done in
a book called FIR book or FIR Register. Of course, in
addition, the gist of the FIR or the substance of the FIR may
also be mentioned simultaneously in the General Diary as
mandated in the respective Police Act or Rules, as the case
may be, under the relevant State provisions.
55) The General Diary is a record of all important
transactions/events taking place in a police station,
including departure and arrival of police staff, handing over
or taking over of charge, arrest of a person, details of law
and order duties, visit of senior officers etc. It is in this
context that gist or substance of each FIR being registered
in the police station is also mentioned in the General Diary
since registration of FIR also happens to be a very important
49
event in the police station. Since General Diary is a record
that is maintained chronologically on day-to-day basis (on
each day, starting with new number 1), the General Diary
entry reference is also mentioned simultaneously in the FIR
Book, while FIR number is mentioned in the General Diary
entry since both of these are prepared simultaneously.
56) It is relevant to point out that FIR Book is maintained
with its number given on an annual basis. This means that
each FIR has a unique annual number given to it. This is
on similar lines as the Case Numbers given in courts. Due
to this reason, it is possible to keep a strict control and
track over the registration of FIRs by the supervisory police
officers and by the courts, wherever necessary. Copy of
each FIR is sent to the superior officers and to the
concerned Judicial Magistrate.
57) On the other hand, General Diary contains a huge
number of other details of the proceedings of each day.
Copy of General Diary is not sent to the Judicial Magistrate
having jurisdiction over the police station, though its copy is
sent to a superior police officer. Thus, it is not possible to
keep strict control of each and every FIR recorded in the
50
General Diary by superior police officers and/or the court in
view of enormous amount of other details mentioned therein
and the numbers changing every day.
58) The signature of the complainant is obtained in the
FIR Book as and when the complaint is given to the police
station. On the other hand, there is no such requirement of
obtaining signature of the complainant in the general diary.
Moreover, at times, the complaint given may consist of
large number of pages, in which case it is only the gist of
the complaint which is to be recorded in the General Diary
and not the full complaint. This does not fit in with the
suggestion that what is recorded in General Diary should be
considered to be the fulfillment/compliance of the
requirement of Section 154 of registration of FIR. In fact,
the usual practice is to record the complete complaint in the
FIR book (or annex it with the FIR form) but record only
about one or two paragraphs (gist of the information) in the
General Diary.
59) In view of the above, it is useful to point out that the
Code was enacted under Entry 2 of the Concurrent List of
the Seventh Schedule to the Constitution which is
51
reproduced below:-
“2. Criminal procedure, including all matters included in
the Code of Criminal Procedure at the commencement of
this Constitution.”
On the other hand, Police Act, 1861 (or other similar Acts in
respective States) were enacted under Entry 2 of the State
List of the Seventh Schedule to the Constitution, which is
reproduced below:-
“2. Police (including railway and village police) subject to
the provisions of Entry 2A of List I.”
60) Now, at this juncture, it is pertinent to refer Article
254(1) of the Constitution, which lays down the provisions
relating to inconsistencies between the laws made by the
Parliament and the State Legislatures. Article 254(1) is
reproduced as under:-
“254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States
(1) If any provision of a law made by the Legislature of a
State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject
to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made
by the Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the
repugnancy, be void.”
52
Thus it is clear from the mandate of Article 254(1) of the
Constitution that if there is any inconsistency between the
provisions of the Code and the Police Act, 1861, the
provisions of the Code will prevail and the provisions of the
Police Act would be void to the extent of the repugnancy.
61) If at all, there is any inconsistency in the provisions of
Section 154 of the Code and Section 44 of the Police Act,
1861, with regard to the fact as to whether the FIR is to be
registered in the FIR book or in the General Diary, the
provisions of Section 154 of the Code will prevail and the
provisions of Section 44 of the Police Act, 1861 (or similar
provisions of the respective corresponding Police Act or
Rules in other respective States) shall be void to the extent
of the repugnancy. Thus, FIR is to be recorded in the FIR
Book, as mandated under Section 154 of the Code, and it is
not correct to state that information will be first recorded in
the General Diary and only after preliminary inquiry, if
required, the information will be registered as FIR.
62) However, this Court in Tapan Kumar Singh (supra),
held that a GD entry may be treated as First information in
an appropriate case, where it discloses the commission of a
53
cognizable offence. It was held as under:
“15. It is the correctness of this finding which is assailed
before us by the appellants. They contend that the
information recorded in the GD entry does disclose the
commission of a cognizable offence. They submitted that
even if their contention, that after recording the GD entry
only a preliminary inquiry was made, is not accepted,
they are still entitled to sustain the legality of the
investigation on the basis that the GD entry may be
treated as a first information report, since it disclosed the
commission of a cognizable offence.
16. The parties before us did not dispute the legal
position that a GD entry may be treated as a first
information report in an appropriate case, where it
discloses the commission of a cognizable offence. If the
contention of the appellants is upheld, the order of the
High Court must be set aside because if there was in law
a first information report disclosing the commission of a
cognizable offence, the police had the power and
jurisdiction to investigate, and in the process of
investigation to conduct search and seizure. It is,
therefore, not necessary for us to consider the authorities
cited at the Bar on the question of validity of the
preliminary inquiry and the validity of the search and
seizure.
Xxx xxxx
19. The High Court fell into an error in thinking that the
information received by the police could not be treated as
a first information report since the allegation was vague
inasmuch as it was not stated from whom the sum of
rupees one lakh was demanded and accepted. Nor was it
stated that such demand or acceptance was made as
motive or reward for doing or forbearing to do any official
act, or for showing or forbearing to show in exercise of his
official function, favour or disfavour to any person or for
rendering, attempting to render any service or disservice
to any person. Thus there was no basis for a police officer
to suspect the commission of an offence which he was
empowered under Section 156 of the Code to investigate.”
63) It is thus unequivocally clear that registration of FIR is
54
mandatory and also that it is to be recorded in the FIR Book
by giving a unique annual number to each FIR to enable
strict tracking of each and every registered FIR by the
superior police officers as well as by the competent court to
which copies of each FIR are required to be sent.
‘Information’
64) The legislature has consciously used the expression
“information” in Section 154(1) of the Code as against the
expression used in Section 41(1)(a) and (g) where the
expression used for arresting a person without warrant is
“reasonable complaint” or “credible information”. The
expression under Section 154(1) of the Code is not qualified
by the prefix “reasonable” or “credible”. The non
qualification of the word “information” in Section 154(1)
unlike in Section 41(1)(a) and (g) of the Code is for the
reason that the police officer should not refuse to record any
information relating to the commission of a cognizable
offence on the ground that he is not satisfied with the
reasonableness or credibility of the information. In other
words, reasonableness or credibility of the said information
is not a condition precedent for the registration of a case.
55
65) The above view has been expressed by this Court in
Bhajan Lal (supra) which is as under:-
“32. … in Section 154(1) of the Code, the legislature in
its collective wisdom has carefully and cautiously used
the expression “information” without qualifying the same
as in Section 41(1)(a) or (g) of the Code wherein the
expressions, “reasonable complaint” and “credible
information” are used. Evidently, the non-qualification of
the word “information” in Section 154(1) unlike in Section
41(1)(a) and (g) of the Code may be for the reason that the
police officer should not refuse to record an information
relating to the commission of a cognizable offence and to
register a case thereon on the ground that he is not
satisfied with the reasonableness or credibility of the
information. In other words, ‘reasonableness’ or
‘credibility’ of the said information is not a condition
precedent for registration of a case. A comparison of the
present Section 154 with those of the earlier Codes will
indicate that the legislature had purposely thought it fit to
employ only the word “information” without qualifying the
said word.”
66) In Parkash Singh Badal (supra), this Court held as
under:-
“65. The legal mandate enshrined in Section 154(1) is
that every information relating to the commission of a
“cognizable offence” [as defined under Section 2(c) of the
Code] if given orally (in which case it is to be reduced into
writing) or in writing to “an officer in charge of a police
station” [within the meaning of Section 2(o) of the Code] and
signed by the informant should be entered in a book to be
kept by such officer in such form as the State Government
may prescribe which form is commonly called as “first
information report” and which act of entering the information
in the said form is known as registration of a crime or a case.
66. At the stage of registration of a crime or a case on the
basis of the information disclosing a cognizable offence in
compliance with the mandate of Section 154(1) of the Code,
the police officer concerned cannot embark upon an inquiry
as to whether the information laid by the informant is
reliable and genuine or otherwise and refuse to register a
56
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 nonqualification
of the word “information” in Section 154(1)
unlike in Sections 41(1)(a) and (g) of the Code may be for the
reason that the police officer should not refuse to record an
information relating to the commission of a cognizable
offence and to register a case thereon on the ground that he
is not satisfied with the reasonableness or credibility of the
information. In other words, “reasonableness” or “credibility”
of the said information is not a condition precedent for
registration of a case. A comparison of the present Section
154 with those of the earlier Codes will indicate that the
legislature had purposely thought it fit to employ only the
word “information” without qualifying the said word. Section
139 of the Code of Criminal Procedure of 1861 (Act 25 of
1861) passed by the Legislative Council of India read that
“every complaint or information” preferred to an officer in
charge of a police station should be reduced into writing
which provision was subsequently modified by Section 112 of
the Code of 1872 (Act 10 of 1872) which thereafter read that
“every complaint” preferred to an officer in charge of a police
station shall be reduced in writing. The word “complaint”
which occurred in previous two Codes of 1861 and 1872 was
deleted and in that place the word “information” was used in
the Codes of 1882 and 1898 which word is now used in
Sections 154, 155, 157 and 190(c) of the Code. An overall
57
reading of all the Codes makes it clear that the condition
which is sine qua non for recording a first information report
is that there must be an information and that information
must disclose a cognizable offence.
68. It is, therefore, manifestly clear that if any
information disclosing a cognizable offence is laid before an
officer in charge of a police station satisfying the
requirements of Section 154(1) of the Code, the said police
officer has no other option except to enter the substance
thereof in the prescribed form, that is to say, to register a
case on the basis of such information.”
67) In Ramesh Kumari (supra), this Court held as
under:-
4. That a police officer mandatorily registers a case on a
complaint of a cognizable offence by the citizen under
Section 154 of the Code is no more res integra. The point of
law has been set at rest by this Court in State of Haryana v.
Bhajan Lal. This Court after examining the whole gamut and
intricacies of the mandatory nature of Section 154 of the
Code has arrived at the finding in paras 31 and 32 of the
judgment as under:
“31. At the stage of registration of a crime or a case on
the basis of the information disclosing a cognizable
offence in compliance with the mandate of Section 154(1)
of the Code, the police officer concerned cannot embark
upon an inquiry as to whether the information, laid by the
informant is reliable and genuine or otherwise and refuse
to register a case on the ground that the information is
not reliable or credible. On the other hand, the officer in
charge of a police station is statutorily obliged to register
a case and then to proceed with the investigation if he has
reason to suspect the commission of an offence which he
is empowered under Section 156 of the Code to
investigate, subject to the proviso to Section 157. (As we
have proposed to make a detailed discussion about the
power of a police officer in the field of investigation of a
cognizable offence within the ambit of Sections 156 and
157 of the Code in the ensuing part of this judgment, we
do not propose to deal with those sections in extenso in
the present context.) In case, an officer in charge of a
police station refuses to exercise the jurisdiction vested in
him and to register a case on the information of a
cognizable offence reported and thereby violates the
58
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 nonqualification
of the word ‘information’ in Section 154(1)
unlike in Section 41(1)(a) and (g) of the Code may be for
the reason that the police officer should not refuse to
record an information relating to the commission of a
cognizable offence and to register a case thereon on the
ground that he is not satisfied with the reasonableness or
credibility of the information. In other words,
‘reasonableness’ or ‘credibility’ of the said information is
not a condition precedent for registration of a case. A
comparison of the present Section 154 with those of the
earlier Codes will indicate that the legislature had
purposely thought it fit to employ only the word
‘information’ without qualifying the said word. Section
139 of the Code of Criminal Procedure of 1861 (Act 25 of
1861) passed by the Legislative Council of India read that
‘every complaint or information’ preferred to an officer in
charge of a police station should be reduced into writing
which provision was subsequently modified by Section
112 of the Code of 1872 (Act 10 of 1872) which thereafter
read that ‘every complaint’ preferred to an officer in
charge of a police station shall be reduced in writing. The
word ‘complaint’ which occurred in previous two Codes of
1861 and 1872 was deleted and in that place the word
‘information’ was used in the Codes of 1882 and 1898
which word is now used in Sections 154, 155, 157 and
190(c) of the present Code of 1973 (Act 2 of 1974). An
overall reading of all the Codes makes it clear that the
condition which is sine qua non for recording a first
information report is that there must be information and
that information must disclose a cognizable offence.”
(emphasis in original)
59
Finally, this Court in para 33 said:
“33. It is, therefore, manifestly clear that if any
information disclosing a cognizable offence is laid before
an officer in charge of a police station satisfying the
requirements of Section 154(1) of the Code, the said police
officer has no other option except to enter the substance
thereof in the prescribed form, that is to say, to register a
case on the basis of such information.”
5. The views expressed by this Court in paras 31, 32 and
33 as quoted above leave no manner of doubt that the
provision of Section 154 of the Code is mandatory and the
officer concerned is duty-bound to register the case on the
basis of such information disclosing cognizable offence.”
68) In Ram Lal Narang (supra), this Court held as
under:-
“14. Under the CrPC, 1898, whenever an officer in charge
of the police station received information relating to the
commission of a cognizable offence, he was required to enter
the substance thereof in a book kept by him, for that
purpose, in the prescribed form (Section 154 CrPC). Section
156 of the CrPC invested the Police with the power to
investigate into cognizable offences without the order of a
Court. If, from the information received or otherwise, the
officer in charge of a police station suspected the commission
of a cognizable offence, he was required to send forthwith a
report of the same to a Magistrate empowered to take
cognizance of such offence upon a police report and then to
proceed in person or depute one of his subordinate officers to
proceed to the spot, to investigate the facts and
circumstances of the case and to take measures for the
discovery and arrest of the offender (Section 157 CrPC). He
was required to complete the investigation without
unnecessary delay, and, as soon as it was completed, to
forward to a Magistrate empowered to take cognizance of the
offence upon a police report, a report in the prescribed form,
setting forth the names of the parties, the nature of the
information and the names of the persons who appeared to
be acquainted with the circumstances of the case [Section
173(1) CrPC]. He was also required to state whether the
accused had been forwarded in custody or had been released
on bail. Upon receipt of the report submitted under Section
173(1) CrPC by the officer in charge of the police station, the
Magistrate empowered to take cognizance of an offence upon
60
a police report might take cognizance of the offence [Section
190(1)(b) CrPC]. Thereafter, if, in the opinion of the
Magistrate taking cognizance of the offence, there was
sufficient ground for proceeding, the Magistrate was required
to issue the necessary process to secure the attendance of
the accused (Section 204 CrPC). The scheme of the Code
thus was that the FIR was followed by investigation, the
investigation led to the submission of a report to the
Magistrate, the Magistrate took cognizance of the offence on
receipt of the police report and, finally, the Magistrate taking
cognizance issued process to the accused.
15. The police thus had the statutory right and duty to
“register” every information relating to the commission of a
cognizable offence. The police also had the statutory right
and duty to investigate the facts and circumstances of the
case where the commission of a cognizable offence was
suspected and to submit the report of such investigation to
the Magistrate having jurisdiction to take cognizance of the
offence upon a police report. These statutory rights and
duties of the police were not circumscribed by any power of
superintendence or interference in the Magistrate; nor was
any sanction required from a Magistrate to empower the
Police to investigate into a cognizable offence. This position
in law was well-established. In King Emperor v. Khwaja Nazir
Ahmad the Privy Council observed as follows:
“Just as it is essential that everyone accused of a
crime should have free access to a Court of justice, so
that he may be duly acquitted if found not guilty of the
offence with which he is charged, so it is of the utmost
importance that the judiciary should not interfere with
the police in matters which are within their province and
into which the law imposes on them the duty of inquiry.
In India, as has been shown, there is a statutory right on
the part of the police to investigate the circumstances of
an alleged cognizable crime without requiring any
authority from the judicial authorities, and it would, as
Their Lordships think, be an unfortunate result if it
should be held possible to interfere with those statutory
rules by an exercise of the inherent jurisdiction of the
Court. The functions of the judiciary and the police are
complementary, not overlapping, and the combination of
individual liberty with a due observance of law and order
is only to be obtained by leaving each to exercise its own
function, always of course, subject to the right of the
Courts to intervene in an appropriate case when moved
under Section 491 of the Criminal Procedure Code to give
directions in the nature of Habeas Corpus. In such a case
61
as the present, however, the Court’s functions begin when
a charge is preferred before it and not until then … In the
present case, the police have under Sections 154 and 156
of the Criminal Procedure Code, a statutory right to
investigate a cognizable offence without requiring the
sanction of the Court ….”
Ordinarily, the right and duty of the police would end with
the submission of a report under Section 173(1) CrPC upon
receipt of which it was up to the Magistrate to take or not to
take cognizance of the offence. There was no provision in the
1898 Code prescribing the procedure to be followed by the
police, where, after the submission of a report under Section
173(1) CrPC and after the Magistrate had taken cognizance
of the offence, fresh facts came to light which required
further investigation. There was, of course, no express
provision prohibiting the police from launching upon an
investigation into the fresh facts coming to light after the
submission of the report under Section 173(1) or after the
Magistrate had taken cognizance of the offence. As we shall
presently point out, it was generally thought by many High
Courts, though doubted by a few, that the police were not
barred from further investigation by the circumstance that a
report under Section 173(1) had already been submitted and
a Magistrate had already taken cognizance of the offence.
The Law Commission in its 41st report recognized the
position and recommended that the right of the police to
make further investigation should be statutorily affirmed.
The Law Commission said:
“14.23. A report under Section 173 is normally the
end of the investigation. Sometimes, however, the police
officer after submitting the report under Section 173
comes upon evidence bearing on the guilt or innocence of
the accused. We should have thought that the police
officer can collect that evidence and send it to the
Magistrate concerned. It appears, however, that Courts
have sometimes taken the narrow view that once a final
report under Section 173 has been sent, the police cannot
touch the case again and cannot re-open the
investigation. This view places a hindrance in the way of
the investigating agency, which can be very unfair to the
prosecution and, for that matter, even to the accused. It
should be made clear in Section 173 that the competent
police officer can examine such evidence and send a
report to the Magistrate. Copies concerning the fresh
material must of course be furnished to the accused.”
Accordingly, in the CrPC, 1973, a new provision, Section
62
173(8), was introduced and it says:
“Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the
Magistrate and, where upon such investigation, the officer
in charge of the police station obtains further evidence,
oral or documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in the
form prescribed; and the provisions of sub-sections (2) to
(6) shall, as far as may be, apply in relation to such report
or reports as they apply in relation to a report forwarded
under sub-section (2).”
69) In Lallan Chaudhary (supra), this Court held as
under:
“8. Section 154 of the Code thus casts a statutory duty
upon the police officer to register the case, as disclosed in
the complaint, and then to proceed with the investigation.
The mandate of Section 154 is manifestly clear that if any
information disclosing a cognizable offence is laid before an
officer in charge of a police station, such police officer has no
other option except to register the case on the basis of such
information.
9. In Ramesh Kumari v. State (NCT of Delhi) this Court has
held that the provision of Section 154 is mandatory. Hence,
the police officer concerned is duty-bound to register the
case on receiving information disclosing cognizable offence.
Genuineness or credibility of the information is not a
condition precedent for registration of a case. That can only
be considered after registration of the case.
10. The mandate of Section 154 of the Code is that at the
stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence, the police officer
concerned cannot embark upon an inquiry as to whether the
information, laid by the informant is reliable and genuine or
otherwise and refuse to register a case on the ground that
the information is not relevant or credible. In other words,
reliability, genuineness and credibility of the information are
not the conditions precedent for registering a case under
Section 154 of the Code.”
A perusal of the above-referred judgments clarify that the
63
reasonableness or creditability of the information is not a
condition precedent for the registration of a case.
Preliminary Inquiry
70) Mr. Naphade relied on the following decisions in
support of his arguments that if the police officer has a
doubt about the veracity of the accusation, he has to
conduct preliminary inquiry, viz., E.P. Royappa vs. State
of Tamil Nadu (1974) 4 SCC 3, Maneka Gandhi (supra),
S.M.D. Kiran Pasha vs. Government of Andhra Pradesh
(1990) 1 SCC 328, D.K. Basu vs. State of W.B. (1997) 1
SCC 416, Uma Shankar Sitani vs. Commissioner of
Police, Delhi & Ors. (1996) 11 SCC 714, Preeti Gupta
(supra), Francis Coralie Mullin vs. Administrator, Union
Territory of Delhi (1981) 1 SCC 608, Common Cause, A
Registered Society vs. Union of India (1999) 6 SCC 667,
District Registrar and Collector, Hyderabad vs. Canara
Bank (2005) 1 SCC 496 and Ranjitsing Brahmajeetsing
Sharma vs. State of Maharashtra (2005) 5 SCC 294.
71) Learned senior counsel for the State further
vehemently contended that in appropriate cases, it would be
64
proper for a police officer, on receipt of a complaint of a
cognizable offence, to satisfy himself that prima facie the
allegations levelled against the accused in the complaint are
credible. In this regard, Mr. Naphade cited the following
decisions, viz. Tapan Kumar Singh (supra), Bhagwant
Kishore Joshi (supra), P. Sirajuddin (supra), Sevi
(supra), Shashikant (supra), Rajinder Singh Katoch
(supra), Vineet Narain vs. Union of India (1998) 1 SCC
226, Elumalai vs. State of Tamil Nadu 1983 LW (CRL)
121, A. Lakshmanarao vs. Judicial Magistrate,
Parvatipuram AIR 1971 SC 186, State of Uttar Pradesh
vs. Ram Sagar Yadav & Ors. (1985) 1 SCC 552, Mona
Panwar vs. High Court of Judicature of Allahabad
(2011) 3 SCC 496, Apren Joseph vs. State of Kerala
(1973) 3 SCC 114, King Emperor vs. Khwaja Nazir
Ahmad AIR 1945 PC 18 and Sarangdharsingh
Shivdassingh Chavan (supra).
72) He further pointed out that the provisions have to be
read in the light of the principle of malicious prosecution and
the fundamental rights guaranteed under Articles 14, 19
and 21. It is the stand of learned senior counsel that every
65
citizen has a right not to be subjected to malicious
prosecution and every police officer has an in-built duty
under Section 154 to ensure that an innocent person is not
falsely implicated in a criminal case. If despite the fact that
the police officer is not prima facie satisfied, as regards
commission of a cognizable offence and proceeds to register
an FIR and carries out an investigation, it would result in
putting the liberty of a citizen in jeopardy. Therefore,
learned senior counsel vehemently pleaded for a preliminary
inquiry before registration of FIR.
73) In terms of the language used in Section 154 of the
Code, the police is duty bound to proceed to conduct
investigation into a cognizable offence even without
receiving information (i.e. FIR) about commission of such an
offence, if the officer in charge of the police station otherwise
suspects the commission of such an offence. The legislative
intent is therefore quite clear, i.e., to ensure that every
cognizable offence is promptly investigated in accordance
with law. This being the legal position, there is no reason
that there should be any discretion or option left with the
police to register or not to register an FIR when information
66
is given about the commission of a cognizable offence.
Every cognizable offence must be investigated promptly in
accordance with law and all information provided under
Section 154 of the Code about the commission of a
cognizable offence must be registered as an FIR so as to
initiate an offence. The requirement of Section 154 of the
Code is only that the report must disclose the commission
of a cognizable offence and that is sufficient to set the
investigating machinery into action.
74) The insertion of sub-section (3) of Section 154, by way
of an amendment, reveals the intention of the legislature to
ensure that no information of commission of a cognizable
offence must be ignored or not acted upon which would
result in unjustified protection of the alleged
offender/accused.
75) The maxim expression unius est exclusion alterius
(expression of one thing is the exclusion of another) applies
in the interpretation of Section 154 of the Code, where the
mandate of recording the information in writing excludes
the possibility of not recording an information of
commission of a cognizable crime in the special register.
67
76) Therefore, conducting an investigation into an offence
after registration of FIR under Section 154 of the Code is the
“procedure established by law” and, thus, is in conformity
with Article 21 of the Constitution. Accordingly, the right of
the accused under Article 21 of the Constitution is protected
if the FIR is registered first and then the investigation is
conducted in accordance with the provisions of law.
77) The term inquiry as per Section 2(g) of the Code reads
as under:
‘2(g) – “inquiry” means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court.”
Hence, it is clear that inquiry under the Code is relatable to
a judicial act and not to the steps taken by the Police which
are either investigation after the stage of Section 154 of the
Code or termed as ‘Preliminary Inquiry’ and which are prior
to the registration of FIR, even though, no entry in the
General Diary/Station Diary/Daily Diary has been made.
78) Though there is reference to the term ‘preliminary
inquiry’ and ‘inquiry’ under Sections 159 and Sections 202
and 340 of the Code, that is a judicial exercise undertaken
by the Court and not by the Police and is not relevant for
68
the purpose of the present reference.
79) Besides, learned senior counsel relied on the special
procedures prescribed under the CBI manual to be read into
Section 154. It is true that the concept of “preliminary
inquiry” is contained in Chapter IX of the Crime Manual of
the CBI. However, this Crime Manual is not a statute and
has not been enacted by the legislature. It is a set of
administrative orders issued for internal guidance of the
CBI officers. It cannot supersede the Code. Moreover, in the
absence of any indication to the contrary in the Code itself,
the provisions of the CBI Crime Manual cannot be relied
upon to import the concept of holding of preliminary inquiry
in the scheme of the Code of Criminal Procedure. At this
juncture, it is also pertinent to submit that the CBI is
constituted under a Special Act, namely, the Delhi Special
Police Establishment Act, 1946 and it derive its power to
investigate from this Act.
80) It may be submitted that Sections 4(2) and 5 of the
Code permit special procedures to be followed for special
Acts. Section 4 of the Code lays down as under:
69
“Section 4. Trial of offences under the Indian Penal Code
and other laws. (1) All offences under the Indian Penal Code (45
of 1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the
same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.”
It is thus clear that for offences under laws other than IPC,
different provisions can be laid down under a special Act to
regulate the investigation, inquiry, trial etc., of those
offences. Section 4(2) of the Code protects such special
provisions.
81) Moreover, Section 5 of the Code lays down as under:
“Section 5. Saving – Nothing contained in this Code shall, in
the absence of a specific provision to the contrary, affect any
special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of procedure
prescribed, by any other law for the time being in force.”
Thus, special provisions contained in the DSPE Act relating
to the powers of the CBI are protected also by Section 5 of
the Code.
82) In view of the above specific provisions in the Code, the
powers of the CBI under the DSPE Act, cannot be equated
with the powers of the regular State Police under the Code.
70
Significance and Compelling reasons for registration of
FIR at the earliest
83) The object sought to be achieved by registering the
earliest information as FIR is inter alia two fold: one, that
the criminal process is set into motion and is well
documented from the very start; and second, that the
earliest information received in relation to the commission
of a cognizable offence is recorded so that there cannot be
any embellishment etc., later.
84) Principles of democracy and liberty demand a regular
and efficient check on police powers. One way of keeping
check on authorities with such powers is by documenting
every action of theirs. Accordingly, under the Code, actions
of the police etc., are provided to be written and
documented. For example, in case of arrest under Section
41(1)(b) of the Code, arrest memo along with the grounds
has to be in writing mandatorily; under Section 55 of the
Code, if an officer is deputed to make an arrest, then the
superior officer has to write down and record the offence
etc., for which the person is to be arrested; under Section
91 of the Code, a written order has to be passed by the
concerned officer to seek documents; under Section 160 of
71
the Code, a written notice has to be issued to the witness so
that he can be called for recording of his/her statement,
seizure memo/panchnama has to be drawn for every article
seized etc.
85) The police is required to maintain several records
including Case Diary as provided under Section 172 of the
Code, General Diary as provided under Section 44 of the
Police Act etc., which helps in documenting every
information collected, spot visited and all the actions of the
police officers so that their activities can be documented.
Moreover, every information received relating to commission
of a non-cognizable offence also has to be registered under
Section 155 of the Code.
86) The underpinnings of compulsory registration of FIR is
not only to ensure transparency in the criminal justice
delivery system but also to ensure ‘judicial oversight’.
Section 157(1) deploys the word ‘forthwith’. Thus, any
information received under Section 154(1) or otherwise has
to be duly informed in the form of a report to the Magistrate.
Thus, the commission of a cognizable offence is not only
brought to the knowledge of the investigating agency but
72
also to the subordinate judiciary.
87) The Code contemplates two kinds of FIRs. The duly
signed FIR under Section 154(1) is by the informant to the
concerned officer at the police station. The second kind of
FIR could be which is registered by the police itself on any
information received or other than by way of an informant
[Section 157(1)] and even this information has to be duly
recorded and the copy should be sent to the Magistrate
forthwith.
88) The registration of FIR either on the basis of the
information furnished by the informant under Section
154(1) of the Code or otherwise under Section 157(1) of the
Code is obligatory. The obligation to register FIR has
inherent advantages:
a) It is the first step to ‘access to justice’ for a victim.
b) It upholds the ‘Rule of Law’ inasmuch as the
ordinary person brings forth the commission of a
cognizable crime in the knowledge of the State.
c) It also facilitates swift investigation and sometimes
73
even prevention of the crime. In both cases, it only
effectuates the regime of law.
d) It leads to less manipulation in criminal cases and
lessens incidents of ‘ante-dates’ FIR or deliberately
delayed FIR.
89) In Thulia Kali vs. State of Tamil Nadu (1972) 3 SCC
393, this Court held as under:-
“12…First information report in a criminal case is an
extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence adduced at the
trial. The importance of the above report can hardly be
overestimated from the standpoint of the accused. The
object of insisting upon prompt lodging of the report to
the police in respect of commission of an offence is to
obtain early information regarding the circumstances in
which the crime was committed, the names of the actual
culprits and the part played by them as well as the names
of eyewitnesses present at the scene of occurrence. Delay
in lodging the first information report quite often results
in embellishment which is a creature of afterthought. On
account of delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or
concocted story as a result of deliberation and
consultation. It is, therefore, essential that the delay in
the lodging of the first information report should be
satisfactorily explained…”
90) In Tapan Kumar Singh (supra), it was held as
under:-
“20. It is well settled that a first information report is
not an encyclopaedia, which must disclose all facts and
details relating to the offence reported. An informant may
lodge a report about the commission of an offence though
74
he may not know the name of the victim or his assailant.
He may not even know how the occurrence took place. A
first informant need not necessarily be an eyewitness so
as to be able to disclose in great detail all aspects of the
offence committed. What is of significance is that the
information given must disclose the commission of a
cognizable offence and the information so lodged must
provide a basis for the police officer to suspect the
commission of a cognizable offence. At this stage it is
enough if the police officer on the basis of the information
given suspects the commission of a cognizable offence,
and not that he must be convinced or satisfied that a
cognizable offence has been committed. If he has reasons
to suspect, on the basis of information received, that a
cognizable offence may have been committed, he is bound
to record the information and conduct an investigation. At
this stage it is also not necessary for him to satisfy
himself about the truthfulness of the information. It is
only after a complete investigation that he may be able to
report on the truthfulness or otherwise of the information.
Similarly, even if the information does not furnish all the
details he must find out those details in the course of
investigation and collect all the necessary evidence. The
information given disclosing the commission of a
cognizable offence only sets in motion the investigative
machinery, with a view to collect all necessary evidence,
and thereafter to take action in accordance with law. The
true test is whether the information furnished provides a
reason to suspect the commission of an offence, which the
police officer concerned is empowered under Section 156
of the Code to investigate. If it does, he has no option but
to record the information and proceed to investigate the
case either himself or depute any other competent officer
to conduct the investigation. The question as to whether
the report is true, whether it discloses full details
regarding the manner of occurrence, whether the accused
is named, and whether there is sufficient evidence to
support the allegations are all matters which are alien to
the consideration of the question whether the report
discloses the commission of a cognizable offence. Even if
the information does not give full details regarding these
matters, the investigating officer is not absolved of his
duty to investigate the case and discover the true facts, if
he can.”
91) In Madhu Bala (supra), this Court held:
“6. Coming first to the relevant provisions of the Code,
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Section 2(d) defines “complaint” to mean any allegation made
orally or in writing to a Magistrate, with a view to his taking
action under the Code, that some person, whether known or
unknown has committed an offence, but does not include a
police report. Under Section 2(c) “cognizable offence” means
an offence for which, and “cognizable case” means a case in
which a police officer may in accordance with the First
Schedule (of the Code) or under any other law for the time
being in force, arrest without a warrant. Under Section 2(r)
“police report” means a report forwarded by a police officer to
a Magistrate under sub-section (2) of Section 173 of the
Code. Chapter XII of the Code comprising Sections 154 to
176 relates to information to the police and their powers to
investigate. Section 154 provides, inter alia, that the officer
in charge of a police station shall reduce into writing every
information relating to the commission of a cognizable
offence given to him orally and every such information if
given in writing shall be signed by the person giving it and
the substance thereof shall be entered in a book to be kept
by such officer in such form as the State Government may
prescribe in this behalf. Section 156 of the Code with which
we are primarily concerned in these appeals reads as
under:….
9. The mode and manner of registration of such cases are
laid down in the Rules framed by the different State
Governments under the Indian Police Act, 1861. As in the
instant case we are concerned with Punjab Police Rules,
1934 (which are applicable to Punjab, Haryana, Himachal
Pradesh and Delhi) framed under the said Act we may now
refer to the relevant provisions of those Rules. Chapter XXIV
of the said Rules lays down the procedure an officer in
charge of a police station has to follow on receipt of
information of commission of crime. Under Rule 24.1
appearing in the Chapter every information covered by
Section 154 of the Code must be entered in the First
Information Report Register and the substance thereof in the
daily diary. Rule 24.5 says that the First Information Report
Register shall be a printed book in Form 24.5(1) consisting of
200 pages and shall be completely filled before a new one is
commenced. It further requires that the cases shall bear an
annual serial number in each police station for each
calendar year. The other requirements of the said Rules need
not be detailed as they have no relevance to the point at
issue.
10. From the foregoing discussion it is evident that
whenever a Magistrate directs an investigation on a
“complaint” the police has to register a cognizable case on
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that complaint treating the same as the FIR and comply with
the requirements of the above Rules. It, therefore, passes our
comprehension as to how the direction of a Magistrate
asking the police to “register a case” makes an order of
investigation under Section 156(3) legally unsustainable.
Indeed, even if a Magistrate does not pass a direction to
register a case, still in view of the provisions of Section
156(1) of the Code which empowers the police to investigate
into a cognizable “case” and the Rules framed under the
Indian Police Act, 1861 it (the police) is duty-bound to
formally register a case and then investigate into the same.
The provisions of the Code, therefore, do not in any way
stand in the way of a Magistrate to direct the police to
register a case at the police station and then investigate into
the same. In our opinion when an order for investigation
under Section 156(3) of the Code is to be made the proper
direction to the police would be “to register a case at the
police station treating the complaint as the first information
report and investigate into the same”.
92) According to the Statement of Objects and Reasons,
protection of the interests of the poor is clearly one of the
main objects of the Code. Making registration of
information relating to commission of a cognizable offence
mandatory would help the society, especially, the poor in
rural and remote areas of the country.
93) The Committee on Reforms of Criminal Justice System
headed by Dr. Justice V.S. Malimath also noticed the plight
faced by several people due to non-registration of FIRs and
recommended that action should be taken against police
officers who refuse to register such information. The
Committee observed:-
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“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. Nonregistration
of cases is a serious complaint against the
police. The National Police Commission in its 4th report
lamented that the police “evade registering cases for
taking up investigation where specific complaints are
lodged at the police stations”. It referred to a study
conducted by the Indian Institute of Public Opinion, New
Delhi regarding “Image of the Police in India” which
observed that over 50% of the respondents mention nonregistration
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
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police officer to register every complaint received by him.
Breach of this duty should become an offence punishable
in law to prevent misuse of the power by the police
officer.”
94) It means that the number of FIRs not registered is
approximately equivalent to the number of FIRs actually
registered. Keeping in view the NCRB figures that show that
about 60 lakh cognizable offences were registered in India
during the year 2012, the burking of crime may itself be in
the range of about 60 lakh every year. Thus, it is seen that
such a large number of FIRs are not registered every year,
which is a clear violation of the rights of the victims of such
a large number of crimes.
95) Burking of crime leads to dilution of the rule of law in
the short run; and also has a very negative impact on the
rule of law in the long run since people stop having respect
for rule of law. Thus, non-registration of such a large
number of FIRs leads to a definite lawlessness in the
society.
96) Therefore, reading Section 154 in any other form
would not only be detrimental to the Scheme of the Code
but also to the society as a whole. It is thus seen that this
79
Court has repeatedly held in various decided cases that
registration of FIR is mandatory if the information given to
the police under Section 154 of the Code discloses the
commission of a cognizable offence.
Is there a likelihood of misuse of the provision?
97) Another, stimulating argument raised in support of
preliminary inquiry is that mandatory registration of FIRs
will lead to arbitrary arrest, which will directly be in
contravention of Article 21 of the Constitution.
98) While registration of FIR is mandatory, arrest of the
accused immediately on registration of FIR is not at all
mandatory. In fact, registration of FIR and arrest of an
accused person are two entirely different concepts under the
law, and there are several safeguards available against
arrest. Moreover, it is also pertinent to mention that an
accused person also has a right to apply for “anticipatory
bail” under the provisions of Section 438 of the Code if the
conditions mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest under that
provision by obtaining an order from the Court.
80
99) It is also relevant to note that in Joginder Kumar vs.
State of U.P. & Ors. (1994) 4 SCC 260, this Court has held
that arrest cannot be made by police in a routine manner.
Some important observations are reproduced as under:-
“20…No arrest can be made in a routine manner on a
mere allegation of commission of an offence made against
a person. It would be prudent for a police officer in the
interest of protection of the constitutional rights of a
citizen and perhaps in his own interest that no arrest
should be made without a reasonable satisfaction reached
after some investigation as to the genuineness and bona
fides of a complaint and a reasonable belief both as to the
person’s complicity and even so as to the need to effect
arrest. Denying a person of his liberty is a serious matter.
The recommendations of the Police Commission merely
reflect the constitutional concomitants of the fundamental
right to personal liberty and freedom. A person is not
liable to arrest merely on the suspicion of complicity in an
offence. There must be some reasonable justification in
the opinion of the officer effecting the arrest that such
arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer
issues notice to person to attend the Station House and
not to leave the Station without permission would do.”
100) The registration of FIR under Section 154 of the Code
and arrest of an accused person under Section 41 are two
entirely different things. It is not correct to say that just
because FIR is registered, the accused person can be
arrested immediately. It is the imaginary fear that “merely
because FIR has been registered, it would require arrest of
the accused and thereby leading to loss of his reputation”
and it should not be allowed by this Court to hold that
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registration of FIR is not mandatory to avoid such
inconvenience to some persons. The remedy lies in strictly
enforcing the safeguards available against arbitrary arrests
made by the police and not in allowing the police to avoid
mandatory registration of FIR when the information
discloses commission of a cognizable offence.
101) This can also be seen from the fact that Section 151 of
the Code allows a police officer to arrest a person, even
before the commission of a cognizable offence, in order to
prevent the commission of that offence, if it cannot be
prevented otherwise. Such preventive arrests can be valid
for 24 hours. However, a Maharashtra State amendment to
Section 151 allows the custody of a person in that State
even for up to a period of 30 days (with the order of the
Judicial Magistrate) even before a cognizable offence is
committed in order to prevent commission of such offence.
Thus, the arrest of a person and registration of FIR are not
directly and/or irreversibly linked and they are entirely
different concepts operating under entirely different
parameters. On the other hand, if a police officer misuses
his power of arrest, he can be tried and punished under
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Section 166.
102) Besides, the Code gives power to the police to close a
matter both before and after investigation. A police officer
can foreclose an FIR before an investigation under Section
157 of the Code, if it appears to him that there is no
sufficient ground to investigate the same. The Section itself
states that a police officer can start investigation when he
has a ‘reason to suspect the commission of an offence’.
Therefore, the requirements of launching an investigation
under Section 157 of the Code are higher than the
requirement under Section 154 of the Code. The police
officer can also, in a given case, investigate the matter and
then file a final report under Section 173 of the Code
seeking closure of the matter. Therefore, the police is not
liable to launch an investigation in every FIR which is
mandatorily registered on receiving information relating to
commission of a cognizable offence.
103) Likewise, giving power to the police to close an
investigation, Section 157 of the Code also acts like a check
on the police to make sure that it is dispensing its function
of investigating cognizable offences. This has been recorded
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in the 41st Report of the Law Commission of India on the
Code of Criminal Procedure, 1898 as follows :
“14.1…….If the offence does not appear to be serious and
if the station-house officer thinks there is no sufficient
ground for starting an investigation, he need not
investigate but, here again, he has to send a report to the
Magistrate who can direct the police to investigate, or if
the Magistrate thinks fit, hold an inquiry himself.”
“14.2. A noticeable feature of the scheme as outlined
above is that a Magistrate is kept in the picture at all
stages of the police investigation, but he is not authorized
to interfere with the actual investigation or to direct the
police how that investigation is to be conducted.”
Therefore, the Scheme of the Code not only ensures that the
time of the police should not be wasted on false and
frivolous information but also that the police should not
intentionally refrain from doing their duty of investigating
cognizable offences. As a result, the apprehension of misuse
of the provision of mandatory registration of FIR is
unfounded and speculative in nature.
104) It is the stand of Mr. Naphade, learned senior counsel
for the State of Maharashtra that when an innocent person
is falsely implicated, he not only suffers from loss of
reputation but also from mental tension and his personal
liberty is seriously impaired. He relied on the Maneka
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Gandhi (supra), which held the proposition that the law
which deprives a person of his personal liberty must be
reasonable both from the stand point of substantive as well
as procedural aspect is now firmly established in our
Constitutional law. Therefore, he pleaded for a fresh look at
Section 154 of the Code, which interprets Section 154 of the
Code in conformity with the mandate of Article 21.
105) It is true that a delicate balance has to be maintained
between the interest of the society and protecting the liberty
of an individual. As already discussed above, there are
already sufficient safeguards provided in the Code which
duly protect the liberty of an individual in case of
registration of false FIR. At the same time, Section 154 was
drafted keeping in mind the interest of the victim and the
society. Therefore, we are of the cogent view that mandatory
registration of FIRs under Section 154 of the Code will not
be in contravention of Article 21 of the Constitution as
purported by various counsel.
Exceptions:
106) Although, we, in unequivocal terms, hold that Section
85
154 of the Code postulates the mandatory registration of
FIRs on receipt of all cognizable offence, yet, there may be
instances where preliminary inquiry may be required owing
to the change in genesis and novelty of crimes with the
passage of time. One such instance is in the case of
allegations relating to medical negligence on the part of
doctors. It will be unfair and inequitable to prosecute a
medical professional only on the basis of the allegations in
the complaint.
107) In the context of medical negligence cases, in Jacob
Mathew (supra), it was held by this Court as under:
“51. We may not be understood as holding that doctors
can never be prosecuted for an offence of which rashness
or negligence is an essential ingredient. All that we are
doing is to emphasise the need for care and caution in the
interest of society; for, the service which the medical
profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting
doctors from frivolous or unjust prosecutions. Many a
complainant prefer recourse to criminal process as a tool
for pressurising the medical professional for extracting
uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.
52. Statutory rules or executive instructions
incorporating certain guidelines need to be framed and
issued by the Government of India and/or the State
Governments in consultation with the Medical Council of
India. So long as it is not done, we propose to lay down
certain guidelines for the future which should govern the
prosecution of doctors for offences of which criminal
rashness or criminal negligence is an ingredient. A private
complaint may not be entertained unless the complainant
86
has produced prima facie evidence before the court in the
form of a credible opinion given by another competent
doctor to support the charge of rashness or negligence on
the part of the accused doctor. The investigating officer
should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent
and competent medical opinion preferably from a doctor
in government service, qualified in that branch of medical
practice who can normally be expected to give an
impartial and unbiased opinion applying the Bolam9 test
to the facts collected in the investigation. A doctor
accused of rashness or negligence, may not be arrested in
a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary for
furthering the investigation or for collecting evidence or
unless the investigating officer feels satisfied that the
doctor proceeded against would not make himself
available to face the prosecution unless arrested, the
arrest may be withheld.”
108) In the context of offences relating to corruption, this
Court in P. Sirajuddin (supra) expressed the need for a
preliminary inquiry before proceeding against public
servants.
109) Similarly, in Tapan Kumar Singh (supra), this Court
has validated a preliminary inquiry prior to registering an
FIR only on the ground that at the time the first information
is received, the same does not disclose a cognizable offence.
110) Therefore, in view of various counter claims regarding
registration or non-registration, what is necessary is only
that the information given to the police must disclose the
commission of a cognizable offence. In such a situation,
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registration of an FIR is mandatory. However, if no
cognizable offence is made out in the information given,
then the FIR need not be registered immediately and
perhaps the police can conduct a sort of preliminary
verification or inquiry for the limited purpose of ascertaining
as to whether a cognizable offence has been committed.
But, if the information given clearly mentions the
commission of a cognizable offence, there is no other option
but to register an FIR forthwith. Other considerations are
not relevant at the stage of registration of FIR, such as,
whether the information is falsely given, whether the
information is genuine, whether the information is credible
etc. These are the issues that have to be verified during the
investigation of the FIR. At the stage of registration of FIR,
what is to be seen is merely whether the information given
ex facie discloses the commission of a cognizable offence. If,
after investigation, the information given is found to be
false, there is always an option to prosecute the
complainant for filing a false FIR.
Conclusion/Directions:
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111) In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154
of the Code, if the information discloses commission
of a cognizable offence and no preliminary inquiry is
permissible in such a situation.
(ii) If the information received does not disclose a
cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted
only to ascertain whether cognizable offence is
disclosed or not.
(iii) If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In
cases where preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure must
be supplied to the first informant forthwith and not
later than one week. It must disclose reasons in
brief for closing the complaint and not proceeding
further.
(iv) The police officer cannot avoid his duty of
registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do
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not register the FIR if information received by him
discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but
only to ascertain whether the information reveals
any cognizable offence.
(vi) As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts
and circumstances of each case. The category of
cases in which preliminary inquiry may be made are
as under:
(a)Matrimonial disputes/ family disputes
(b)Commercial offences
(c) Medical negligence cases
(d)Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over
3 months delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
90
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.