Factual Background:
The Petitioner was a minor who had been kidnapped. The father of the Petitioner had approached the Police regarding registration of the FIR however the officer-in-charge of the Police Station had refused to register the FIR. The father thus approached the Superintendent of Police who registered the FIR but still no action had been taken to apprehend the arrest of the accused or for recovery of the minor girl.
Thus, the Petitioner had approached the hon’ble Supreme Court under Article 32 wherein a two-judge bench expressed that it was disheartening that the Police officials had not been registering FIRs despite clear indications under Section 154 of the Code of Criminal Procedure (hereinafter referred to as the “CrPC”) and further issued certain directions to various governmental departments and police officials to state their reasons as to why such directions should be recalled.
Thereafter the same coordinate bench had been posed with several contrary contentions as to whether the officer-in-charge should mandatorily register the FIR when information pertaining to the commission of a cognizable offence has been received or should the officer conduct a preliminary inquiry before registering the FIR in order to check as to whether the information so given is credible and no innocent be arrested pursuant to such frivolous information. Thus, the two-judge bench referred the matter to a full bench of the Court.
The full bench was again posed with contrary decisions of the hon’ble apex Court as well as the High Courts on the interpretation of Section 154 and thus observed that the issue being res integra needed to be disposed by a constitution bench for a full and final decision. Thus, the present petition.
Issue before the Court:
The issue that the constitution bench had been posed with was whether a police officer is bound to register an FIR upon receiving any information pertaining to the commission of a cognizable offence under Section 154 of the CrPC 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.
Contentions:
The Court heard various Senior Counsels, Additional Solicitor Generals as well as State, CBI and other Advocates as to what should be the correct interpretation of Section 154.
Some of the Senior Counsels and Advocates adverted that provisions of Section 154 had been interpreted in light of the literal rule as the text of Section 154(1) per se, unambiguously, clarifies by the use of the expression “shall” that it is mandatory to register an FIR whenever any information pertaining to the commission of a cognizable offence is given to the police. The provision casts a mandatory duty and not a discretionary duty on the police officials. Supporting the arguments, various judgments were also referred.
On the other hand, some of the Senior Counsels, ASGs and Advocates of the State and CBI contended that merely because the expression “shall” was contained in the text of Section 154(1), the same should not mean that it is mandatory for the officer to register an FIR. The rule of purposive interpretation must also be kept in mind because if Section 154(1) casted a mandatory duty on the police officer to register an FIR, an alternative of the like nature i.e., registering the matter via Complaint to the Magistrate under Section 200 of the CrPC, would not have been provided. It was also contended that even though registering of an FIR can be considered a mandatory duty of the Police and is considered to be the procedure established by law, Article 21 as interpreted in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] has held that such procedure should be a “just, fair and reasonable procedure”. Thus, it was contended that the provisions must also be interpreted in the light of the accused’s right under Article 21 of the Constitution. Further, it was also contended that allowing preliminary inquiry before registration of an FIR would be a beneficial step to prevent the misuse of the process of law and to prevent the arrest of innocent persons and investigations of bogus cases.
Analysis of Section 154 with other relevant provisions:
Section 154 of the CrPC states that:
(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:
Prima facie, the language of the Section unequivocally clarifies that by the use of the expression “shall” it becomes mandatory for the officer-in-charge to register an FIR on any information which discloses the commission of a cognizable offence, however, the information so received has to be entered in a “book” as prescribed in that behalf.
Thus, it is important to understand as to what is meant by the legislature in the expression “book”
Every Police Station has a diary commonly known as the General Diary/ Daily Diary/ Day Diary (hereinafter referred to as the “Diary”) wherein information pertaining to the day-to-day activities of the police is noted with a number to every such activity. The Police Act, 1861 under Section 44 also talks about the maintaining of a Diary pertaining to various activities of the Police. Thus, even if an FIR is not registered, the information so received is required to be entered in this Diary as the same constitutes to be an ‘activity’.
Then, does the legislature indicate that registration of FIR is not mandatory as the information can be entered into the Diary before registering the FIR?
To answer the same, it is important to understand the provisions of information to the police in the earlier Codes of Criminal Procedure.
The Code of Criminal Procedure, 1861: Section 139 - Complaint, etc., to be in writing: The following Section used the term “complaint or information” that was required to be entered mandatorily as the expression “shall” was used to enter such complaint/information in a “Diary”.
The Code of Criminal Procedure, 1872: Section 112 – Complaint to police to be in writing: The following Section used the expression “complaint” only and the term information was removed. Further, the Section used the term “shall” as well as “book” thus laying down that the complaint was mandatorily required to be entered in a book.
The Code of Criminal Procedure of 1882 and of 1898 under Section 154 respectively used the expression “information” pertaining to the commission of a cognizable offence only and further used the term “shall” and “book” wherein the information was mandatorily required to be entered. Similarly, Section 154 under the Code of Criminal Procedure, 1973 uses the same expression “information” pertaining to the commission of a cognizable offence which is to be entered in a “book” as prescribed by the State government. Thus, making it clear that the legislative intent has since the inception of the enactment of the Code of Criminal Procedure has been to mandatorily register the information or complaint (as the case maybe) in a Diary or Book (as the case maybe).
However, the expression “book” is still required to be understood.
The Police Act, 1861 and the Code of Criminal Procedure, 1861 were passed in the same year. Section 44 of the Police Act as well as Section 139 of the CrPC, 1861 used the expression “Diary” wherein the information was required to be entered. However, with the introduction of the Code of Criminal Procedure, 1872, the expression “Diary” was substituted by “Book”. Thus, pertaining to the question as to whether the expression “Book” referred in Section 112 of the CrPC, 1872 suggested the entering of information in the FIR or otherwise, the hon’ble Supreme Court in Madhu Bala v. Suresh Kumar [(1997) 8 SCC 476] held that the expression “book” meant the FIR book separate from the Diary maintained by the officer-in-charge of the Police Station.
Thus, the judgment of the apex Court makes its unequivocally clear that the expression “book” referred in Section 154 of the CrPC, 1973 means the FIR book or the FIR register wherein information pertaining to the commission of a cognizable offence is required to be entered in the form of an FIR. The gist of the FIR is further required to be entered in the General Diary/Daily Diary/Day Diary.
However, if the Magistrate receives a Complaint under Section 200 of the Code and thereby orders for investigation on the Complaint under Section 156 (3) of the Code, will provision of Section 154(1) pertaining to the registration of FIR also be complied with?
Thus, the Court in its judgment held that:
“100…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”
Further, to clarify the question of preliminary inquiry, the Court also analyzed Section 154(1) in light of Section 41 (1) (b) and (g) of the Code. Section 41 (1) (b) and (g) of the Code use the terms “reasonable complaint” and “credible information” as a sine qua non in the process of arrest of a person. Thus, if the intent of the legislature was to allow a preliminary inquiry before the registration of an FIR, expressions of the like nature would have also been used in the text of Section 154(1). It has been the intention of the legislature that the police arrests individuals only when it is satisfied that a “reasonable complaint” or some “credible information” is existing to initiate the arrest. Thus, in this case, the police have the liberty to conduct a preliminary inquiry, as can be understood by the text of the provision.
Further, the Court also held that by discarding the option of preliminary inquiry, the provision did not infringe the rights of the accused. The Court stated that registration of an FIR was one thing and the investigation and arrest of the person a separate thing. The registration of FIR did not cast an obligatory duty on the Police to investigate and arrest the said accused. The police have the authority to investigate and thereby on the basis of “reasonable complaint” or “credible information” has the power to either arrest the accused or issue notice under Section 41A. Further, the police is also empowered to close the investigation by submitting a Closure Report if no substantial material is found against a person so accused. Further, the accused who has the apprehension of being arrested can avail the remedy of Anticipatory bail under Section 438 of the Code. Thus, the procedure established by law discarding preliminary inquiry cannot be held to be oppressive and against the rights of the accused under Article 21 of the Constitution.
Instances wherein Preliminary Inquiry can be conducted before registration of FIR:
Though Section 154(1) of the Code clearly indicates that no preliminary inquiry is required to be conducted before the registration of an FIR when information pertaining to the commission of a cognizable offence is received, there can be instances wherein preliminary inquiry can be conducted before registration of an FIR.
The judgment outlines the following instances:
(a) When the information received by the Police discloses the commission of a non-cognizable offence (see Section 155 of the Code),
(b) When on information received by the Police, there is doubt as to whether a cognizable offence is committed or not. In such a case, the Police can conduct a preliminary inquiry in order to find whether the information so disclosed forms a cognizable offence,
(c) When some special law under its Statute or the Rules made therein allow the conduction of preliminary inquiry (for instance, see Chapter IX of the CBI Crime Manual. Also see, Section 4(2) and 5 of the Code),
(d) Cases pertaining to Medical negligence, Matrimonial disputes, Commercial offences, Corruption, and
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution (for instance, over 3 month’s delay in reporting the matter without a satisfactory explanation pertaining to the reasons for such a delay).
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