This article has been written by Jay Vyas, a BA.LLB student at Maharashtra National Law University, Mumbai.
On 13th November 2013, the Supreme Court of India consisting of a five Judge bench passed a Landmark Judgement which is cited even today in the midst of the Rafale case. However this Judgement is not free from criticism. The Five Judge bench held that once a cognizable offense is made out under Section 154 of CRPC the police have to mandatorily register the FIR.
In this article, I argue that this Judgement is against the jurisprudence of previous notable judgments of the Supreme Court like Abhinandan Jha v. Dinesh Mishra. This case has raised eyebrows regarding the power of the Police to conduct Preliminary Inquiry, Principles of Malicious Prosecution. In this article I also argue that Mandatory registration of FIR by the police without proper scrutiny is a dangerous and extreme position held by the Supreme Court which is contrary to Article 21 of the Indian Constitution. Furthermore the court failed to consider the consequences of an FIR registered against a citizen and the social stigma a person has to face. The article concludes that the judgment ends up showing intentions of giving dictatorial power to police and takes away many rights essential in seeking criminal remedy, thus, defeating the very purpose of people approaching the police for enforcement of their rights, and nullifying the purpose of the criminal justice system.
The three-Judge bench in Lalita Kumari v. Govt. of UP and Others opined that registration of First Information Report (hereinafter FIR) should be Non-Mandatory. They reasoned that an officer should be satisfied that an offense is made out in the FIR after a preliminary inquiry as an FIR leads to serious consequences for the accused and for this reason the need for a preliminary inquiry is implicit with the provisions of section 154 of Code of Criminal Procedure. These provisions should be read down in the light of Article 21 of the Indian Constitution.
Facts of the Case in Brief
The writ petition was filed under Article 32 of the constitution by Lalita Kumari(Minor) through her father Shri Bhola Kamat for the issuance of a writ of Habeas Corpus as the officer –in-charge of the police station who did not take any action. The petitioner stated that even after registration of FIR no concrete steps were taken to recover the minor girl or trace the accused. The court on 14.7.2008 passed a comprehensive order expressing its grave anguish on non-registration of the FIR even in a case of a cognizable offense.
Whether the police officer should compulsorily register an FIR under Section 154 of Code of Criminal Procedure, 1973 relating to Cognizable offence or the police officer to check the authenticity of the complaint can conduct a preliminary inquiry before registering an FIR?
Contentions of the Parties
The counsel for the petitioner stated to the court that when the officer-in-charge of the police station receives a complaint disclosing a cognizable, he has to mandatorily register an FIR under section 154 of the Code of Criminal Procedure. Reliance was placed on the Judgments of The Supreme Court like State of Haryana v. Bhajan Lal, Ramesh Kumari v. State (NCT of Delhi) and Parkash Singh Badal v. State of Punjab. The Counsel draws the attention of the court that under Section 154(1) of the Code the word “Shall” is used by the Legislation signifies the legislative intention and it is compulsory for the police officer to register the FIR.
He stated that under section 154 of the code there are no implicit provisions relating to Preliminary inquiry and there is no discretion left to the police officer.
In support of his arguments, he placed heavy reliance on the following judgments viz. B. Premanand v.MohanKoikal, Hiralal Rattanlal v. State of U.P. and Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra.
The counsel for the respondent submitted that the registration of an FIR cannot be subjected to a straitjacket formula as it is an administrative act requiring the application of mind, scrutiny, and verification of the facts. No administrative act can ever be a mechanical one. He placed reliance on Rajinder Singh Katoch, P. Sirajuddin v. State of Madras, State of U.P. v. Bhagwant Kishore Joshi, and Sevi v. State of T.N., which holds 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 offense or not. The learned counsel submitted that a statute should not be interpreted in such manner where it leads to a absence of any discretion to the police officer especially in Fake cases where registration of an FIR leads to an empty formality.
Also, for the receipt and recording of information, the report is not a condition precedent to the setting in motion of a criminal investigation. The counsel explained that a provision for preliminary inquiry already exists in cases like Corruption, Medical Negligence and Matrimonial Offences.
The counsel submitted to the court that every statute should be interpreted while keeping in mind the provisions of Article 14, 19 and 21 of the Constitution which provides protection to an innocent person from baseless charges. In situations like these, a police officer needs to be equipped with the power of conducting a Preliminary inquiry.
Critique of the Judgement
In this article, I argue that the Hon’ble Court has gone against the jurisprudence of previous notable judgments of the Supreme Court like Abhinandan Jha v. Dinesh Mishra.
In the judgment of Abhinandan Jha v. Dinesh Mishra the Supreme Court took great pains in demarking the powers of the police and the judiciary. They explained the duties of the police, in the matter of investigation of offenses, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Code. Sections beginning from Section 154, and ending with Section 176. Section 154 deals with information relating to the commission of a cognizable offense, and the procedure to be adopted in respect of the same. In each of these sections, there is no role of Judiciary, the sections provide guidelines to the police on how to proceed with the Investigation but there is always a discretion to the police officer to conduct a preliminary inquiry in case a complaint does not clearly disclose a Cognizable offense or has doubts over the veracity of the complaint.
In Nazir Ahmed case, H.N. Rishbud and Inder Singh v. State of Delhi:
The court held that the Judiciary should not interfere with the police in matters such as Investigation especially of cognizable offence which is the statutory right of the police. The court observed that the police needs no authorisation of the judiciary. The court opined that the functions of the police and judiciary are complimentary and not overlapping keeping in mind individual liberty and law and order situation in the Country. The judiciary role comes into play when a charge is established and not before that.
In Binay Kumar Singh v. State of Bihar, the Supreme Court categorically stated that an officer in charge of the police station cannot be expected to register an FIR on receiving information which does not disclose the commission of a cognizable offence. The court observed that it should be open to the officer-in-charge to check the veracity of the complaint and further inquiry whether a cognizable offence has been committed.
In Sevi v. State of Tamil Nadu also the court had expressly ruled that before registering the FIR under section 154 of CrPC it is open to the station house officer (SHO) to hold a preliminary inquiry to ascertain whether there is a prima facie case of commission of a cognizable offense or not.
Lastly the Bombay High Court has laid general principles governing preliminary inquiry which can be followed by the courts. Such guides give discretion to the police to keep a check in frivolous complaints and also does not cause undue harassment to the accused. Therefore in the case of Kalpana Kutty v. State of Maharashtra the guidelines laid down by the court relating to preliminary inquiry:
“(a) When information relating to the commission of a cognizable offense is received by an officer in charge of a police station, he would normally register a FIR as required by section 154(1) of the code.
(b) If the information received indicates the necessity for further inquiry, preliminary inquiry may be conducted.
(c) Where the source of information is of doubtful reliability i.e. an anonymous complaint, the officer in charge of the police station may conduct a preliminary inquiry to ascertain the correctness of the information.
(d) Preliminary inquiry must be expeditious and as far as possible it must be discreet.
(e) Preliminary inquiry is not restarted only to cases where the accused are public servants or doctors or professionals holding top positions. In which case preliminary inquiry is necessary will depend on facts and circumstances of each case.”
In the second part of this paper, I argue that this Judgement is against the mandate of Article 21. I argue that a mandatory duty of registering FIR should not be cast upon a Police officer. I argue that such an interpretation of the statute would harmonize two extreme positions viz. the proposition that the moment the complaint disclosing ingredients of a cognizable offense 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. Guidelines laid down by Kalpana Kutty v. State of Maharashtra should be followed.
In the case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi the Supreme Court held that Article 21 as interpreted in Maneka Gandhi’s case provides that a procedure while depriving a person his life or personal liberty should be fair, reasonable, just and should not be arbitrary. The court has the constitutional power of judicial review whenever there is a deprivation of life or personal liberty by an unjust procedure.
The consequences of a criminal case on the accused have far-reaching consequences. Though the accused may be innocent, he is subjected to psychological anxiety, social stigma and probable economic impairment till proven innocent. Even, if he is guilty, delay shakes his confidence in the system of criminal justice and makes him cynical. The impact of this drama does not confine itself to the accused but extends to his dependants who may be subject to undue suffering. Worse is the effect-of delay on complaint or victim to whose traumatic suffering the system seems to be heartless. It is a greater paradox that injustice is being done to them in the process of justice.
In Moti Ram v. State of M.P. Krishna Iyer, J. opined that there are grave consequences of pre-trial detention. He observed that the psychological and physical deprivation of jail life a defendant has to go through even though he is presumed innocent is worse than that of a convicted defendant. He explains that jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.
In the case of State Of West Bengal & Ors. Vs. Nazrul Islam, the Supreme Court ruled that any person facing or convicted of a criminal offense cannot be considered suitable for a government appointment. To be considered eligible, a person should either have no charges pending against them or have been acquitted of these charges by the court. However, this acquittal must not be out of a compromise between the accused and the victim, or due to the witnesses in the case turning hostile.
Under Section 6(2) of the Passports Act, 1967, the passport authority can refuse a foreign visa to any applicant if-
- In the preceding 5 years, they have been convicted of an offense of moral turpitude and been sentenced to more than two years’ imprisonment.
- Criminal proceedings are pending against them in India.
- A summons to the court, warrant for arrest or order prohibiting departure from India has been issued against them.
It is a crying shame upon our adjudicatory system which keeps men in jails for years on end without a trial.In many cases trials do not commence for as long as a period as three to four years after the accused was remitted to judicial custody. In several cases the time spent by the accused in jail before the commencement of trial exceeds the maximum punishment which can be awarded to them even if they are found guilty of offenses charged against them. The mental torture and anxiety suffered by an accused for a long length of time is to be treated as sufficient punishment inflicted on him. Owing to the prolonged pendency of a case, individuals may suffer in many and different ways. In many cases, the accused is the head of a family and is the only breadwinner; his responsibility is also towards the large family left behind him. It is not only the accused but also other members of his family who suffer because of delays in the trial.If his family is affected in no other way, it will suffer at least from social stigma due to the arrest of the accused during the trial and also from the loss of income during this period. They are likely to be forced to borrow money to run the family and also to defend the defendant.
The National Crime Records Bureau (NCRB) had released a report called ‘Prison Statistics India 2015’ which had stated the overcrowding of prisons as the biggest problem the prisoners have to face. The occupancy rate of these prisons was at an all India level of 114.4 per cent. This results in grave problems to prisoners such as lack of sanitation and hygiene and lack of sleep. This is against the human rights of the prisoners.
Another disturbing fact the report states is that sixty-seven per cent of people in prisons are under trials i.e. people that are not convicted of any crime and are facing trial in a court of law. On an average, every day four people die in prison. Seventy per cent of the convicts are illiterate.
In an another report by the Delhi Government’s Central Jail, the occupancy in the year 2019 has increased to 174.89%. If we break down this figure, there are atleast 82.02 % people who are under-trials. Since it has been established that the consequences of an FIR has serious consequences on accused, the Mandatory registration of FIR will make things even worst for the prisons in our country. If we analyse the data above, we can understand that in Indian Prison system the under trials are more than the convicts. This is very worrisome and it should be touched upon by the legislature.
Therefore I conclude that a delicate balance has to be maintained between the interest of the society and protecting the liberty of an individual. Criminal procedural law has to embody principles of natural justice and the constitutional guarantees must be safeguarded. A balance has to be struck between speedy trial and fair trial and the principles of natural justice cannot be compromised with in order to achieve speedy dispensation of justice. Liberty of an individual has to be zealously guarded by the law. Detention for even a single minute would amount to an invasion of liberty. Civil liberties cannot be jeopardized unless sufficient grounds exist for doing so. As I have highlighted the effects of a criminal case on the accused it is imperative to follow guidelines laid down by the Bombay High Court in Kalpana Kutty v. State of Maharashtra.
Also, the position held by the three judge bench of Lalita Kumari v. Govt of UP is a correct legal position and it should be revisited.
2.) AbhinandanJha v. DineshMishra 1968AIR117 https://indiankanoon.org/doc/49832/
3.) http://22.214.171.124/WriteReadData/userfiles/Report%20No.%20277%20Wrongful% 20Prosecution.pdf
4.) Lalita Kumari v. Govt. of UP and Others AIR 2012 SC 1515 https://indiankanoon.org/doc/117323641/
5.) State of Haryana vs. Bhajan Lal 1992 Supp. (1) SCC 335 https://indiankanoon.org/doc/1033637/
6.) Ramesh Kumari vs. State (NCT of Delhi) (2006) 2 SCC 677
7.) Parkash Singh Badal vs. State of Punjab (2007) 1 SCC 1
8.) B. Premanand and Ors. vs. Mohan Koikal and Others (2011) 4 SCC 266
9.) M/s Hiralal Rattanlal Etc. Etc. vs. State of U.P. and Anr. Etc. Etc. (1973) 1 SCC 216
10.) Govindlal Chhaganlal Patel vs. Agricultural Produce Market Committee, Godhra and Ors. (1975) 2 SCC 48.
11.) P. Sirajuddin vs. State of Madras (1970) 1 SCC 595
12.) Sevi vs. State of Tamil Nadu 1981 Supp SCC 43
13.) Shashikant vs. Central Bureau of Investigation (2007) 1 SCC 630
14.) Rajinder Singh Katoch v. Chandigarh Admn. (2007) 10 SCC 69
15.) P. Sirajuddin v. State of Madras 1970 SCC (Cri) 240
16.) State of U.P. v. Bhagwant Kishore Joshi AIR 1964 SC 221
17.) Sevi v. State of T.N 1981 SCC (Cri) 679
18.) Nazir Ahmed case LR 71 IA 203
19.) H. N. Rishbud and Inder Singh v. The State of Delhi(2) 1955 1 SCR 1150
20.) Binay Kumar Singh v. State of Bihar (1997) 1 SCC 283 https://indiankanoon.org/doc/1460988/
21.) Kalpana Kutty v. State of Maharashtra 2007 (109) Bom LR 2342
22.) Burking of Crimes by Refusal to Register FIR in Cognizable Offences, 55 JILI (2013) 361 at page 374
23.) Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608 https://indiankanoon.org/doc/78536/
24.) Maneka Gandhi v. Union of India,  1 SCC 248;
25.) S.K. Ghosh, “In search of Justice”, 25 (1976)
26.) Moti Ram.v.State of M.P 1978 4 SCC 47 https://indiankanoon.org/doc/1912056/
27.) State Of West Bengal & Ors. Vs. Nazrul Islam CIVIL APPEAL NO. 8638 OF 2011
28.) Upendra Baxi, “The Supreme Court Unter-trial: Under-trials and the Supreme Court” (1980) 1 SCC 35 at 45-46 (Journal).
30.) Arun Kumar’Ghosh.V.State of W.B. 1991 Cr. LR. (Call 365)
31.) V.N. Rajan and M.Z. Khan, Delay in. the Disposal of Criminal Cases in the sessions and lower Courts in Delhi (1982)
32.) Presidential Address by Hon’ble Justice K.G.Balakrjshna National Seminar on Delay in Administration of Criminal Justice System.
33.) Narasimhum.V.Public Prosecutor, -A.I.R. 1979 S.C. 429.
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