SUPREME COURT GUIDELINES ON MANDATORY REGISTRATION OF FIR

LALITA KUMARI V. STATE OF U.P. AND OTHERS,

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. – November 12, 2013

In this case, the order was delivered by the five bench of the Supreme Court comprising of Justice S.A.BOBDE, Justice P. SATHASIVAM, Justice DR. B.S. CHAUHAN, Justice RANJANA PRAKASH DESAI, and Justice RANJAN GOGOI .

The Supreme Court held that the FIR is mandatory under Section 154 of the Code of Criminal Procedure in the appeal made by the appellant. She has filed a Writ Petition under Article 32 of the Constitution.

The Writ of Habeas Corpus was filed by the appellant’s father against the respondent for the protection of her daughter who was kidnapped. He summited the written report to the police in charge of the concerned police station but no action was taken. When they moved to the Superintendent of Police the written report was registered but no further actions were taken by the police authorities to find the accused or to make progress to recover the kidnapped person.

The question of law is whether the police officer is in power to record an FIR for the cognizable offence under Section 154 of the Code of Criminal Procedure based upon the information given by the petitioner and whether the police officer has the power to check whether the information given by the petitioner are true before registering the same as a written report?

When an FIR is not registered immediately and if it leads the police to manipulate the incident whether it is against the right of the victim and if an FIR is registered on the basis of the information given by the petitioner and if it is false whether it is against the right of the accused?

Mr. S.B. Upadhyay learned senior counsel, appearing on the behalf of the petitioner contended Section 154 of the Code contains the word “shall”, this indicates that the police officer has not left to any options other than recording an FIR. He relied on the following decisions, namely B.Preamanand and other v. Mohan kolikal and others,

M/s Hiralal Rattanlal. vs. State of U.P.

He also contended that section 154 does not contain any words such as ‘reasonable’ or ‘credible’ information so he said that it is not necessary for the police to conduct the investigation before registering an FIR.

The learned Additional Solicitor General appearing on the behalf of the Union of India Mr.K.V.Vihwanathan contended that the said police officer has no other option than registering an FIR on the basis of the information which is enclosed before him in a prescribed form satisfying the necessities of Section 154 of the Code. Further, he emphasized various safeguards provided under the Code against filing a false case. He also said that under Section 156 and 157 the police who goes to the spot by gathering the information he can report it to the police station if the information were rumor or imaginary or etc.,

The learned counsel appearing on the behalf of the different states has conveyed completely altered opinions in the SC. “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.”

It is sine quo non in registering an FIR under Section 154 of the Code of Criminal Procedure. In that Section, it is said that there must be information and that information must be about the 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.”

As contended by the counsel the word “shall” may not be used in the way that was interpreted. Then Section 154 should be more constructive where it does not leads to any absurdity.

It would be incongruous to suggest that though it is the duty of every citizen to inform about the commission of an offence, but it is not obligatory on the officer-in-charge 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 ‘shall’ occurring in Section 154(1) of the Code.

The learned ASG appearing on the behalf of the State of Chhattisgarh contended that the entry of an FIR must be in the General Diary/Station Diary/Daily Diary, which is maintained in the police station. The court held that the above contention was baseless as an FIR is based on the first evidence provided by the petitioner it is not the substance that can be recorded in the above-mentioned dairy. Those diaries are maintainable under Section 44 of the Police Act and not under Section 154 of the Code.

After the registration of an FIR if the police conduct their investigation process as per the procedure of the law the right of the accused is safeguarded under Article 21.

The person accused in an FIR cannot be arrested as the registration of an FIR IS mandatory, both are different concepts. There are many laws that safeguard the accused as the registration of an FIR is compulsory.

There are some exceptions made to the mandatory registration of an FIR such as in the medical negligence cases, offences relating to the corruption.

The Supreme Court held that,“i) Registration of FIR is mandatory under Section 154  of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:a) Matrimonial disputes/ family disputesb) Commercial offencesc) Medical negligence casesd) Corruption casese) 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 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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–  Manusri Ramakrishna

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