This article has been written by Raslin Saluja pursuing B.B.A LLB (Hons) from KIIT School of Law, Bhubaneswar. This write-up outlines the status of the preliminary inquiry with respect to the above-mentioned case.
A preliminary inquiry or a pre-FIR stage refers to those cases in which the police receive a complaint whose content is indicative of commission of a cognizable offense. In such cases, the police can initiate a probe to confirm whether such cognizable offense is disclosed or not, and if found certain can proceed to register an FIR.
An analysis of the pre-FIR stage in light of the provisions of CrPC
There are mainly 3 stages of criminal proceedings in India namely: The Pre-Trial Stage, the Trial Stage, and the Post-Trial Stage. The Pre-FIR stage would be set in a similar motion once after the inquiry has been concluded and a cognizable offense is disclosed. Because then it would follow the registration of FIR and the stage of further investigation would begin for the collection of evidence, statement of witnesses, cross-examination/statement of accused, and logical analysis. The pre-FIR stage of inquiry only goes to the extent of determination of a cognizable offense so as to mandatorily register an FIR.
Section 154(1) of CrPC does not admit to conferring discretion on the officer-in-charge of the Police station of embarking upon a preliminary inquiry and even the term is alien to the CrPC. Section 2 refers to investigation, inquiry, and a trial but there is no reference to preliminary inquiry whatsoever. Thus in the presence of limited structure for it to take place, it becomes the duty of the police to duly follow the precedents in the exercise of the same.
Ways in which corruption can sneak in the pre-FIR stage
FIR is the first step to set the criminal law procedure and it upholds the Rule of Law by bringing forth the happening of a cognizable offense in the knowledge of the State. Registering an FIR would help in avoiding manipulation and ante-dates incidents. And not doing so would leave wide scope for fiddling with the transparency of the matter at police discretion.
Huge gaps lie in the implementation of the process of pre-FIR inquiry as there is difficulty in understanding on what basis and using what mechanism should the police identify whether a cognizable offense has been committed. There is also no clarity on what information is to be counted as relevant information for the registration of FIR. Despite the definition of the terms inquiry and investigation separately, there is no precise definition for the term preliminary inquiry as a result there is no mention of process or procedure that is to be followed.
And even though the arrest is not compulsory once FIR is registered, it can easily be followed or avoided at the discretion of police by way of illegal means like bribery. Even in cases where actual default has occurred, the police in its inquiry may just close the complaint stating blatant reasons and no substantial grounds without ever registering an FIR. There have been media reports before highlighting the police bribery cases and we cannot possibly rule out the chances completely in such positions of power.
We also cannot rule out the possibility that a preliminary inquiry in a case where FIR is not registered would give room for fabrication of the evidence and destroy the validity of the complaint as mentioned in the case of Sirajuddin v Govt. Madras (1968). That there would be a great temptation to incorporate details which would later be advantageous to the prosecution. It might also benefit the wrong-doer and give them the required time to adjust their narrative. The fact that police can easily introduce improvements and embellishments and set up distorted versions of the case cannot also be ignored. Thus, these loose ends leave scope for corruption to sneak in as any person could easily become subject to such arbitrary and unreasonable decisions.
The case of Charan Singh vs. State of Maharashtra
In this case, a complaint was received against the appellant (Charan Singh) in the Anti-Corruption Bureau of Mumbai in which various allegations were made against him and his brothers. The complaint was in regard to the accumulation of assets disproportionately to their known source of income. Pursuant to which the police inspector issued a notice to the appellant to provide certain documents and to remain personally present in an open inquiry before the investigating officer of the Anti-corruption office. The open inquiry was to collect the appellant’s statement in respect to the property owned by him besides some other information mentioned in the said notice.
Aggrieved with said notice, the appellant filed a writ petition and invoked the writ jurisdiction under Article 226 of the Indian Constitution of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur. The High Court dismissed the writ petition and refused to quash the said notice in reference to the case of Lalita Kumari v. Government of Uttar Pradesh. The High Court bench observed that an inquiry at the pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income.
The pre-FIR open inquiry assists the police in verifying the credibility of the allegations made and to gather relevant information to determine whether the offense is cognizable or not. And though the notice cannot compel anyone to make a personal appearance, it could attract some danger to the person avoiding to answer it. Thus aggrieved with the dismissal, the appellant further proceeded to file a criminal appeal before the Supreme Court.
The contention of parties in the case
By the appellant:
1. That the police inspector of the Anti-corruption Bureau had no power to issue the said notice and there is no statutory force behind it to compel the presence of anyone.
2. That the notice was issued in purported exercise of Section 160, CrPC going beyond the scope and ambit of the section since the appellant cannot be said to be a witness in the case.
3. That the High Court has materially erred in dismissing the writ petition while placing its reliance on the Lalita Kumari case and that it ought to appreciate that the content of notice shall be hit by Article 20(3) and 21 of the Indian Constitution.
On the other hand by the state:
1. It contended that the notice was issued to obtain the appellant’s statement in a discreet open inquiry which was in the nature of preliminary inquiry and was done in consonance to Section 13(e) of the Prevention of Corruption Act. That the appellant has partially presented himself at the Anti-corruption Bureau with some details and so the argument of compelling the presence under the notice no longer survives.
2. That the notice was issued as per the principles of natural justice and that Section 160, CrPC was mentioned inadvertently.
3. That there was no violation of Article 20(3) as there was no registered FIR against the appellant and no accusation against him existed then.
Findings of the court
Issue: In the appeal, the bench considered the question of whether such an inquiry at the pre-FIR stage would be legal and to what extent such an inquiry is permissible?
It dealt with the issues in 2 parts:
1. Whether the said inquiry is permissible under the Maharastra State Anti-corruption Manual under the present case.
2. And whether an inquiry at the pre-FIR stage is permissible or not or to what extent based on a complaint against a public servant in reference to the Court’s decision in the case of Lalita Kumari.
For the first issue, heavy reliance was placed on Chapter IV of the Anti-Corruption Manual Rules, which provides for conducting the investigation including discrete inquiry and ‘open inquiry’. A very detailed procedure has been provided under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions, 1968 while conducting open inquiries. Discrete inquiry is permissible as per para 14 of the said Manual and the ‘open inquiry’ is permissible as per para 15 of the said Manual. Along with the instructions as mentioned that is to be followed by the officer while conducting open inquiries.
Thus, the Court opined that if the inquiry was held after following the due procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual then it cannot be said that the same is illegal and that the police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an inquiry at pre-registration of FIR stage.
As for the second issue, the Court observed that under the general rule in section 154 registration of FIR is mandatory by the police on receiving the information disclosing a cognizable offense and no preliminary inquiry then will be permissible. However, the court also enumerated certain exceptional situations wherein preliminary inquiry would be held desirable/permissible before lodging an FIR. It stated that if the information received does not disclose a cognizable offense but indicates a requirement for the inquiry then the police will be allowed to conduct so. Further, it is to depend on case to case basis as to what type and in which cases, such inquiry will be conducted.
The Court then went to mention the cases in a non-exhaustive list in which preliminary inquiry may be made:
(a) Matrimonial disputes/family disputes;
(b) Commercial offenses;
(c) Medical negligence cases;
(d) Corruption cases;
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution.
The Court also clarified that the purpose of the preliminary inquiry was only to ascertain whether the information reveals any cognizable offense or not and not to verify the correctness of the information received. That all the processes must be completed in a time-bound manner and not exceed 7 days. That all the information received is to be maintained in the General/Station/Daily diary to have transparency and avoid manipulation. And where the inquiry ends in the closing of the complaint, a copy of it should be provided to the first informant within a week stating the reasons for closure. And with all these considerations, the Court said that holding such an inquiry at pre-registration of FIR stage cannot be said to be illegal per se.
Further to the question of to what extent it will be permissible, the Court stated that such a statement cannot be said to be a statement under section 160 and/or the statement to be recorded during the course of investigation as per the CrPC. Such a statement can also not be used against the appellant during the course of the trial.
Statement of the appellant and the information so received during the course of discrete inquiry shall be only for the purpose to satisfy and find out whether an offense under Section 13(1)(e) of the Prevention of Corruption Act, 1988 is disclosed. Such a statement does not and cannot be said to hold confessional character except for situations in which it is considered to be confessional, in which case only, it can be said to be a statement that is self-incriminatory, which can be said to be impermissible in law.
Thus, the Court was of the opinion that the inquiry was done to safeguard the interest of the appellant from being further harassed in the future. And so the Court dismissed the appeal without interfering with the impugned judgment and order passed by the High Court.
Viewing the judgment as a good precedent
This is good law as the purpose of a preliminary inquiry is to screen frivolous and maliciously motivated complaints with the intent to cause harm to someone. It holds significance in acting fairly and in an objective manner and not unnecessarily setting the criminal law in motion.
Such a preliminary probe is essential to find the truth in the context of serious allegations made before mandatorily registering an FIR because it brings with itself the burden of societal stigma. The registration of an FIR can have serious consequences to the person accused such as restriction of liberty and mental anguish. An FIR acts as a substantive piece of evidence and can hold an immense amount of bearing on a person’s reputation and status in society. Even more so for a person holding a high position in society as it would cause incalculable loss to his integrity along with that of the department and the office they represent.
The judgment also mentioned that even if such inquiries are to take place, it should be restricted to people who have knowledge of such affairs of the person to find prima facie evidence which can later follow the ordinary law of the land. Thus it is a win-win approach as if the complaint is found to be false; the case can be shut without following the whole process of criminal procedure and with no harm to the societal personality of the person. And if a cognizable offense were found to be disclosed, then the police can go ahead with filing an FIR with less manipulation and swift investigation.
Thus so far the precedents are set, there have been mixed reviews about incorporating the preliminary inquiry. However, in the latest case, the apex court has continued with its stance in determining the extent to which it would be permissible. Further having a precise definition for its implementation and working would help in clearing out the ambiguities that currently arise.
- (2014) 2 SCC 1
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