Supreme Court of India
LALITA KUMARIversusGOVERNMENT OF U.P. & OTHERS
- Citation
- 2012 INSC 108
- Decided
- 27 February 2012
- Disposal
- Matter referred to larger bench
- Bench
- DALVEER BHANDARI
Holding
The question of whether registration of an FIR under Section 154 CrPC is mandatory or discretionary is referred to a Constitution Bench for authoritative clarification.
Summary
The petition arose from the kidnapping of a six‑year‑old girl, Lalita Kumari, whose father reported the incident to the police but the FIR was registered only after a month and no investigative action was taken. The petitioner sought a writ of habeas corpus, contending that the police had a statutory duty under Section 154 of the Code of Criminal Procedure, 1973 (CrPC) to register an FIR when a cognizable offence is disclosed. The central issue was whether the police officer has a mandatory duty to register an FIR or may exercise discretion to conduct a preliminary enquiry before doing so. The Court examined a large body of precedent showing divergent views on the interpretation of the word "shall" in Section 154 and the impact of Article 21 of the Constitution on procedural fairness. While acknowledging arguments for both a mandatory approach and a limited discretion, the Court found the matter of great public importance and noted the lack of a uniform legal position. Consequently, the Court decided to refer the question to a Constitution Bench for an authoritative clarification. The petition was therefore not disposed on merits but sent for further consideration by a larger Bench.
Issues considered
- Whether a police officer is bound by Section 154 CrPC to register an FIR when a cognizable offence is made out, or may exercise discretion to conduct a preliminary enquiry before registration.
- Whether the mandatory language "shall" in Section 154 creates an absolute duty or allows for a directory interpretation in view of Article 21.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 156, s. 157, s. 190, s. 202
- Constitution of Indias. 21, s. 32
- Indian Penal Code, 1860s. 1208, s. 363, s. 366, s. 506
Subjects
FIRSection 154 CrPCCognizable offencePreliminary enquiryPolice discretionArticle 21Constitution BenchCriminal ProcedureWrit petitionHabeas corpus
Judgment
[2012] 1 S.C.R. 1066
A LALITA KUMAR!
v.
GOVERNMENT OF U.P. & OTHERS
(Writ Petition (Criminal) No. 68 of 2008)
FEBRUARY 27, 2012
B
[DALVEER BHANDARI, T.S. THAKUR AND
DIPAK MISRA, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
c
s. 154 - Information in cognizable cases - Officer in
charge of police station concerned - Obligation of, to register
the FIR - The issue: whether u/s 154 Cr.P.C., 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
0
of conducting some kind of preliminary enquiry before
registering the FIR - Referred to Constitution Bench.
Writ Petition (Crl.) No. 68 of 2008 was filed praying for
a writ in the nature of habeas corpus to produce a girl
E aged about six years who had been kidnapped from her
house and in spite of her father complaining of the
incident to the police station concerned, his FIR was
registered after one month from the date of the incident.
Even after registration of the FIR against the named
F persons, the police did not take any action to trace the
minor girl.
In the instant matters, the issue for consideration
before the Court was: "whether under Section 154
G Cr.P.C., 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 enquiry before registering the FIR?"
The Court passed a comprehensive order showing
H 1066
LALITA KUMAR I v. GOVERNMENT OF U.P. 1067
its concern in respect of the matter of non-registration of A
FIR in a case of cognizable offence and directed notice
to issue to Chief Secretaries of the States and
Administrators of the Union Territories. Consequently,
various State Governments and Union Territories filed
comprehensive affidavits and advanced divergent B
arguments as regards the interpretation of s.154 of the
Code of Criminal Procedure, 1973.
Referring the matters to a Constitution Bench, the
Court
c
HELD: 1.1 On a careful analysis of various
judgments delivered by this Court in the last several
decades, it is quite evident that different Benches of this
Court have taken divergent views in different cases. In
the instant case also, after this Court's notice, the Union D
· of India, the States and the Union Territories have taken
or expressed totally divergent views about the
interpretation of s.154 Cr.P.C. This Court also carved out
a special category in the case of medical doctors where
preliminary enquiry had been postulated before E
registering an FIR. It has been submitted that the CBI
Manual also envisages some kind of preliminary enquiry
before registering the FIR. The issue which has arisen
for consideration in these cases is of great public
importance. [Para 108-111] [1116-F-H; 1117-A-D] F
1.2 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 of law
and adjudication by a larger Bench of this Court for the
benefit of all concerned - the courts, the investigating G
agencies and the citizens. Consequently, these matters
be referred to a Constitution Bench of at least five Judges
of this Court for an authoritative judgment. [Para 112-
113] [1117 -D-F]
H
1068 SUPREME COURT REPORTS [2012] 1 S.C.R.
A State of M.P. v. Santosh Kumar 2006 (3) Suppl. SCR
548 = 2006 (6) SCC 1; Dr. Suresh Gupta v. Govt. of NCT of
Delhi and Another 2004 (3) Suppl. SCR 323 = 2004(6) SCC
422; Aleque Padamsee and Others v. Union of India and
Others 2007 (8) SCR 390 = (2007) 6 SCC 171; Ramesh
B Kumari v. State (NCT of Delhi) and Others 2006 (2) SCR 403
= (2006) 2 SCC 677; Hiralal Rattan/al etc.etc. v. State of U.P.
and Another etc.etc. 1973 (2) SCR 502 =1973(1) SCC 216;
B. Premanand and Others v. Mohan Koikal and Others 2011
(3) SCR 932 = (2011) 4 SCC 266; Govindlal Chhf)ganla/
c Patel v. Agricultural Produce Market Committee, Godhra and
Others 1976 (1) SCR 451 = 1975 (2) SCC 482; Mis Amar
Nath Om Prakash and others etc. v. State of Punjab and
Others 1985 (2) SCR 72 = (1985) 1 SCC 345; Hameed
Joharan (dead) and others v. Abdul Salam (dead) by Lrs. and
D Others 2001 (1) Suppl. SCR 469 = (2001) 7 SCC 573; The
State of Uttar Pradesh v. Bhagwant Kishore Joshi 1964 SCR
71 =AIR 1964 SC 221; H.N. Rishbud and Jnder Singh v. The
State of Delhi 1955 SCR (1) 1150; Damodar v. State of
Rajasthan 2003 (3) Suppl. SCR 904 = 2004(12) SCC 336;
E Ramsinh Bavaji Jadeja v. State of Gujarat 1994 (2) SCR
239 1994 (2) SCC 685; Binay Kumar Singh v. The State of
Bihar 1996 (8) Suppl. SCR 225 = 1997(1) sec 283;
Madhu Bala v. Suresh Kumar and Others 1997 (3) Suppl.
SCR 32 = 1997 (8) SCC 476; Hallu and others v. State of
Madhya Pradesh 1974 (3) SCR 652 = 1974 (4) SCC 300;
F Rajinder Singh Katoch v. Chandigarh Administration and
others 2001 (11) SCR 246 = 2001 (1 O) sec 69;
Superintendent of Police, CBI and Others v. Tapan Kumar
Singh 2003 (3) SCR 485 = AIR 2003 SC 4140; State of
Haryana and Others v. Bhajan Lal and Others 1990 (3)
G Suppl. SCR 259 = 1992 Suppl. (1) SCC 335; Tarachand
and Another v. State of Haryana 1971 (2) SCC 579; Sandeep
Rammilan Shukla v. State of Maharashtra and Others 2009
(1) Mh.L.J. 97; Sakiri Vasu v. State of Uttar Pradesh and
Others 2007 (12) SCR 1100 = 2008 (2) SCC 409; Nasar Ali
H v. State of Uttar Pradesh 1957 SCR 657; Union of India and
LALITA KUMARI v. GOVERNMENT OF U.P. 1069
Another v. WN. Chadha 1992 (3) Suppl. SCR 594 = 1993 A
(Suppl.) 4 SCC 260; State of West Bengal v. S.N. Basak 1963
(2) SCR 52; Rai Sahib Ram Jawaya Kapur and Others v.
State of Punjab 1955 (2) SCR 225; State (Anti-Corruption
Branch), Govt. of NCT of Delhi and Another v. Dr. R. C. Anand
and Another 2004 (1) Suppl. SCR 161 = 2004 (4) SCC 615; B
Maneka Gandhi v. Union of India and Another 1978 (2) SCR
621 = 1978 (1) SCC 248; S.M.D. Kiran Pasha v. Government
of Andhra Pradesh and Others 1989 (2) Suppl. SCR 105 =
1990 (1) SCC 328; P. T. Rajan v. T.P.M. Sahir and Others
2003 (4) Suppl. SCR 84 = 2003(8) SCC 498; Shivjee Singh c
v. Nagendra Tiwary and Others 2010 (7) SCR 667 = 2010 (7)
SCC 578; Sarbananda Sonowa/ (II) etc. v. Union of India 2006
(10) Suppl. SCR 167 = 2007 (1) SCC 174; Animireddy
Venkata Ramana and Others v. Public Prosecutor, High
Court of Andhra Pradesh 2008 (3) SCR 1078 = 2008 (5) SCC D
368; Uma Shankar Sitani v. Commissioner of Police, Delhi
and Ors. 1996 (11) SCC 714; Preeti Gupta and Another v.
State of Jharkhand and Another 2010 (9) SCR 1168 =
(2010) 7 SCC 667; Francis C. Mullin v. Administrator, Union
Territory of Delhi 1981 (2) SCR 516 =1981 (1) SCC 608;
Mona Panwar v. High Court of Judicature of Allahabad 2011 E
(2) SCR 413 = (2011) 3 SCC 496; Apren Joseph alias current
Kunjukunju and Others v. State of Kera/a 1973 (2) SCR 16
= 1973 (3) SCC 114; State of Maharashtra and Others v.
Sarangdharsingh Shivdassingh Cha van and Another (2011)
1 SCC 577; Sainik Motors, Jodhpur and Others v. State of F
Rajasthan 1962 SCR 517 = AIR 1961 SC 1480; State of
Uttar Pradesh and Others v. Babu Ram Upadhya 1961 SCR
679 = AIR 1961 SC 751; State of Madhya Pradesh v. Mis
Azad Bhorat Finance Co. and Another 1966 SCR 473 =AIR
1967 SC 276; Parkash Singh Badal and Another v. State of G
Punjab and Others 2006 (10) Suppl. SCR 197 = (2007) 1
SCC 1; P. Sirajuddin etc. v. State of Madras etc. 1970 (3)
SCR 931 = 1970 (1) SCC 595; Sevi and Another etc. v. State
of Tamil Nadu and Another 1981 (Suppl.) SCC 43 - referred
to. H
1070 SUPREME COURT REPORTS [2012] 1 S.C.R.
A Emperor v. Khwaza Nazim Ahmad AIR 1945 PC 18 -
referred to.
Case Law Reference:
2007 (8) SCR 390 referred to Para 10
B Para 10
2006 (2) SCR 403 referred to
1973 (2) SCR 502 referred to Para 13(d)
2011 (3) SCR 932 referred to Para 13(d)
C 1976 (1) SCR 451 referred to Para 13(e)
1985 (2) SCR 72 referred to Para 13(e)
2001 (1) Suppl. SCR 469 referred to Para 13(e)
AIR 1945 PC 18 referred to Para 14
D
1964 SCR 71 referred to Para 15
1955 SCR (1) 1150 referred to Para 16
2003 (3) Suppl. SCR 904 referred to . Para 19
E
1994 (2) SCR 239 referred to Para 19
1996 (8) Suppl. SCR 225 referred to Para 22
1997 (3) Suppl. SCR 32 referred to Para 24
F 1974 (3) SCR 652 referred to Para 27
2007 (11) SCR 246 referred to Para 28
2003 (3) SCR 485 referred to Para 31
G 1990 (3) Suppl. SCR 259 referred to Para 35
1971 (2) sec 579 referred to Para 46
2009 (1) Mh.L.J. 97 referred to Para 46
2007 (12) SCR 1100 referred to Para 46
H
LALITA KU MARI v. GOVERNMENT OF U.P. 1071
1957 SCR 657 referred to Para 46 A
1992 (3) Suppl. SCR 594 referred to Para 46
1963 (2) SCR 52 referred to Para 46
2006 (3) Suppl. SCR 548 referred to Para 47
B
2004 (3) Suppl. SCR 323 referred to Para 47
1955 (2) SCR 225 referred to Para 49
2004 (1) Suppl. SCR 161 referred to Para 49
c
1978 (2) SCR 621 referred to Para 50
1989 (2) Suppl. SCR 105 referred to Para 50
2003 (4) Suppl. SCR 84 referred to Para 52
D
2010 (7) SCR 667 referred to Para 52
2006 (10) Suppl. SCR 167 referred to Para 52
2008 (3) SCR 1078 referred to Para 54
E
1996 (11) sec 714 referred to Para 63
2010 (9) SCR 1168 referred to Para 64
1981 (2) SCR 516 referred to Para 65
F
2011 (2) SCR 413 referred to Para 71
1973 (2) SCR 16 referred to Para 75
(2011) 1 sec 577 referred to Para 78
G
1962 SCR 517 referred to Para 85
1961 SCR 679 referred to Para 86
1966 SCR 473 referred to Para 87
2006 (10) Suppl. SCR 197 referred to Para 96 H
1072 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 1970 (3) SCR 931 referred to Para 97
1981 (Suppl.) sec 43 referred to Para 97
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 68 of 2008.
B
Under Article 32 of the Constitution of India.
WITH
Crl. A. No. 1410 of 2011, SLP (Crl.) No. 5200 of 2009 & 5986
of 2010 & Contempt Petition (C) No. arising out of D. 26722
C of 2008 in W.P. (Crl.) No. 68 of 2008.
A. Mariarputham, A.G. H.P. Raval, ASG. S.B. Upadhyay,
Shekhar Naphade, T.S. Doabia, Ratnakar Dash, Dr. Manish
Singhvi, S. Gurukrishankumar AAG Mona K. Rajvanshi, B.K.
D Shahi, B.P. Gupta, Ashwani Kumar, P.K. Mittal, Ram Naresh,
Abhijat P. Medh (for Mahalakshmi Balaji & Co.), Debasis
Misra, Dr. Monika Gosain, Aman Vachher, Ashutosh Dubey,
P.N. Puri, Shreenivas Khalap, Anando Mukherjee, Harsh N.
Parekh, Reena Singh, Sadhana Sandhu, Anirudh Sharma, S.
E Dave, Varuna Bhandari Gugnani, B.V. Balaram Das, D.
Bharathi Reddy, Rituraj Biswas, Anil Shrivastav, Deepika
Ghotowar (for Corporate Law Group), Gopal Singh, Manish
Kumar, Atul Jha, Dharmendra Kumar Sinha, A. Subhashini,
HemantikaWahi, Rojalin Pradhan, Suveni Banerjee, Tarjit Singh,
F Kamal Mohan Gupta, Naresh Kumar Sharma, Sunil Fernandes,
Suhass Joshi, Anil Kumar Jha, Chhaya Kumari, S.K. Divakar,
Anitha Shenoy, M.T. George, Kavitha K.T., P.V. Dinesh, Vibha
Datta Makhija, Shubhangi Tuli, Sanjay V. Kharde, Sachin J.
Patil, Ajit Wagh, Asha G. Nair, Khwairkpam Nobin Singh,
G Sapan Biswajit Meitei, Ranjan Mukherjee, S. Bhowmick, S.C.
Ghosh, M.K. Mishael, Edward Belho, K. Enatoli Serna, Amit
Kumar Singh, Priya Hingorani, S. Wasim A. Qadri, B.V.
Balaram Das, Anil Katiyar, Rituraj Biswas, Zaid Ali, Manpreet
Singh, D.S. Mahra, Jana Kalyan Das, Kuldip Singh, R.K.
Pandey, H.S. Sandhu, K.K. Pandey, Mohit Mudgil, Abhinav
H Ramakrishna, lrshad Ahmed, Milind Kumar, Aruna Mathur,
LALITA KUMARI v. GOVERNMENT OF U.P. 1073
Yusuf Khan (for Arputham, Aruna & Co.), Akshat Hansaria, B. A
Balaji, Gopal Singh, Rituraj Biswas, S.S. Shamshery, Jatinder
Kumar Bhatia, Rajeev Dubey, Kamlendra Mishra, Abhijit
Sengupta, B.P. Yadav, Anima Kujur, Shantanu Bhardwaj, Salish
Vig, Rituraj Biswas, H.S. Sachdeva, V.G. Pragasam, S.J.
Aristotle, Prabu Ramasubramanian, Ramshwar Prasad Goyal, B
Kuldip Singh, B. Balaji, Subramonium Prasad for the appearing
parties.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. We propose to deal with the C
abovementioned writ petition, the criminal appeals and the
contempt petition by this judgment. The question of law
involved in these cases is identical, therefore, all these cases
are being dealt with by a common judgment. In order to avoid
repetition, only the facts of the writ petition of Lalita Kumari's D
case are recapitulated.
2. The petition has been filed before this Court under
Article 32 of the Constitution of India in the nature of habeas
corpus to produce Lalita Kumari, the minor daughter of Bhola
Kamat.
E
3. On 5.5.2008, Lalita Kumari, aged about six years, went
out of her house at 9 p.m. When she did not return for half an
hour and Bhola Kamat was not successful in tracing her, he filed
a missing report at the police station Loni, Ghaziabad, U.P. F
4. On 11.5.2008, respondent no.5 met Bhola Kamat and
informed him that his daughter has been kidnapped and kept
under unlawful confinement by the respondent nos.6. to 13. The
respondent-police did not take any action on his complaint. G
Aggrieved by the inaction of the local police, Bhola Kamat
made a representation on 3.6.2008 to the Senior
Superintendent of Police, Ghaziabad. On the directions of the
Superintendent of Police, Ghaziabad, the police station Loni,
H
1074 SUPREME COURT REPORTS [2012) 1 S.C.R.
A Ghaziabad registered a First Information Report (F.l.R.) No.484
dated 6.6.2008 under Sections 363/366/506/1208 IPC against
the private respondents.
5. Even after registration of the FIR against the private
respondents, the police did not take any action to trace Lalita
8 Kumari. According to the allegation of Bhola Kamat, he was
asked to pay money for initiating investigation and to arrest the
accused persons. Ultimately, the petitioner filed this petition
under Article 32 of the Constitution before this Court.
c 6. This Court on 14.7.2008 passed a comprehensive order
expressing its grave anguish on non-registration of the FIR even
in a case of cognizable offence. The Court also issued notices
to all Chief Secretaries of the States and Administrators of the
Union Territories. In response to the directions of the Court,
o various States and the Union Territories have filed
comprehensive affidavits.
7. The short, but extremely important issue which arises
in this petition is whether under Section 154 of the Code of
Criminal Procedure Code, a police officer is bound to register
E an FIR when a cognizable offence is made out or he has some
latitude of conducting some kind of preliminary enquiry before
registering the FIR.
8. Mr. S.S. Upadhyay, learned senior advocate appearing
F for the petitioner has tried to explain the scheme of Section 154
Cr.P.C. with the help of other provisions of the Act. According
to him, whenever information regarding cognizable offence is
brought to the notice of the SHO, he has no option but to register
the First Information Report.
G
9. This Court also issued notice to the learned Attorney
General for India to assist the Court in this matter of general
public importance. Mr. Harish P Raval, the learned Additional
Solicitor General appeared before the Court and made
comprehensive submissions. He also filed written submissions
H
LALITA KU MARI v. GOVERNMENT OF U.P. 1075
[DALVEER BHANDARI, J.]
which were settled by him and re-settled by the learned A
Attorney General for India.
10. Learned Additional Solicitor General submitted that the
issue which has been referred to this Court has been decided
by a three-Judge Bench of this Court in the case of Aleque B
Padamsee and Others v. Union of India and Others (2007) 6
SCC 171. In this case, this Court while referring to the judgment
in the case of Ramesh Kumari v. State (NCT of Delhi) and
Others (2006) 2 SCC 677 in paragraph 2 of the judgment has
observed as under:-
c
"Whenever cognizable offence is disclosed the police
officials are bound to register the same and in case it is
not done, directions to register the same can be given."
11. The State of Gujarat, the respondent in the above case, o
on the facts thereof, contended that on a bare reading of a
complaint lodged, it appears that no offence was made and that
whenever a complaint is lodged, automatically and in a routine
manner an FIR is not to be registered. This Court after
considering Chapter XII and more particularly Sections 154 and
E
156 held (paragraphs 6 and 7) that "whenever any information
is received by the police about the alleged commission of
offence which is a cognizable one, there is a duty to register
the FIR." There could be no dispute on that score as observed
by this Court. The issue referred to in the reference has already
F
been answered by the Bench of three Judges. The judgment
in Aleque Padamsee and Others (supra) is not referred in the
reference order. It is therefore prayed that the present reference
be answered accordingly.
12. It was submitted on behalf of the Union of India that G
Section 154 (1) provides that every information relating to the
commission of a cognizable offence if given orally, to an officer
incharge of a police station shall be reduced in writing by him
or under his directions. The provision is mandatory. The use
of the word "shall" by the legislation is indicative of the statutory H
1076 SUPREME COURT REPORTS [2012] 1 S.C.R.
A intent. In case such information is given in writing or is reduced
in writing on being given orally, it is required to be signed by
the persons giving it. It is further provided that the substance
of commission of a cognizable offence as given in writing or
reduced to writing "shall" be entered in a book to be kept by
B such officer in such form as the State Government may
prescribe in this behalf. Sub-section (2) provides that a copy
of such information as recorded in sub-section (1) shall be
given forthwith free of cost to the informant.
C 13. In light of the provisions contained in Section 154 (1)
and the law laid by this Court on the subject, the following
submissions were placed by the Union of India for consideration
of this Court.
(a) The statutory intention is manifest on a bare reading
D of provisions of Section 154(1) to the effect that
when an officer incharge of a police station to
whom information relating to commission of
cognizable·offence has been disclosed, he has no
discretion save and except to reduce the said
E information in writing by him or under his direction.
(b) Section 154(1) does not have ambiguity and is in
clear terms.
(c) The use of expression "shall" clearly manifest the
F mandatory statutory intention.
(d) In construing a statutory provision, the first and the
foremost rule of construction is the literal
construction. · It is submitted that all that the Court
G has 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,
the Court need not call into it the other rules on
construction of statutes. [Para 22 of Hirata!
Rattan/a/ etc.etc. v. State of U.P. and Another
H
LALITA KUMARI v. GOVERNMENT OF U.P. 1077
[DALVEER BHANDARI, J.]
etc.etc. 1973(1) SCC 216]. This judgment is A
referred to and followed in a recent decision of this
Court in B. Premanand and Others v. Mohan
Koikal and Others (2011) 4 SCC 266 paras 8 and
9. It is submitted that the language employed in
Section 154 is the determinative factor of the B
legislative intent There is neither any defect nor
any omission in words used by the legislature. The
legislative intent is clear. The language of Section
154(1 ), therefore, admits of no other construction.
(e) The use of expression "shall" is indicative of the C
intention of the legislature which has used a
language of compulsive force. There is nothing
indicative of the contrary in the context indicating a
permi::;sive interpretation of Section 154. It is
submitted that the said Section ought to be D
construed as preemptory. The words are precise
and unambiguous (Govindlal Chhaganlal Patel v.
Agricultural Produce Market Committee, Godhra
and Others 1975 (2) SCC 482). It is submitted that
it is settled law that judgments of the courts are not E
to be construed as statutes [para 11 of three-Judge
Bench decision of this court in the case of Mis
Amar Nath Om Prakash and others etc. v. State
of Punjab and Others (1985) 1 SCC 345]. The
abovesaid decision is followed by a judgment of F
this Court in the case of Hameed Joharan (dead)
and others v. Abdul Salam (dead) by Lrs. and
Others (2001) 7 sec 573.
(f) The provision of Section 154(1) read in light of G
statutory scheme do not admit of conferring any
discretion on the officer in charge of the police
station of embarking upon an preliminary enquiry
prior to registration of an FIR A preliminary enquiry
is a term which is alien to the Code of Criminal
H
1078 SUPREME COURT REPORTS [2012) 1 S.C.R.
A Procedure, 1973 which talks of (i) investigation (ii)
inquiry and (iii) trial. These terms are definite
connotations having been defined under Section 2
of the Act.
(g) The concept of preliminary enquiry as contained in
B
Chapter IX of the CBI (Crime) Manual, first
published in 1991 and thereafter updated on
15.7.2005 cannot be relied upon to import the
concept of holding of preliminary enquiry in the
scheme of the Code of Criminal Procedure.
c
(h) The interpretation of Section 154 cannot be
depended upon a Manual regulating the conduct of
officers of an organization, i.e., CBI.
D (i) A reference to para 9.1. of the said Manual would
show that preliminary enquiry is contemplated only
when a complaint is received or information is
availa:Jle which may after verification as enjoined
in the said Manual indicates serious misconduct on
the part of the public servant but is not adequate to
E
justify registration of a regular case under provisions
of Section 154 Cr.P.C. Such preliminary inquiry as
referred to in para 9.1 of the CBI Manual as also
to be registered after obtaining approval of the
competent authority. It is submitted that these
F provisions cannot be imported into the statutory
scheme of Section 154 so as to provide any
discretion to a police officer in the matter cf
registration of an FIR.
G 0) The purpose of registration of an FIR are manifold
-that is to say
(i) To reduce the substance of information disclosing
commission of a cognizable offence, if given orally,
into writing
H
LALITA KUMAR! v. GOVERNMENT OF U.P. 1079
[DALVEER BHANDARI, J.]
(ii) if given in writing to have it signed by the A
complainant
(iii) to maintain record of receipt of information as
regards commission of cognizable offences
(iv) to initiate investigation on receipt of information as B
regards commission of cognizable offence
(v) to inform Magistrate forthwith of the factum of the
information received.
c
14. Reference has also been made to the celebrated
judgment of the Privy Council in the case of Emperorv. Khwaza
Nazim Ahmad AIR 1945 PC 18 in which it is held that for the
receipt and recording of an information, report is not a
condition precedent to the setting in motion of a criminal
0
investigation. It is further held, that no doubt, in the great majority
of cases criminal prosecution are undertaken as a result of the
information received and recorded in this way. (As provided
in Sections 154 to 156 of the earlier Code). It is further held
that there is no reason why the police, if in possession through
their own knowledge or by means of credible though informal E
intelligence which genuinely leads them to the belief that a
cognizable offence has been committed, should not of their own
motion undertake an investigation into the truth of the matters
alleged. It is further held that Section 157 of the Code when
directing that a police officer, who has a reason to suspect from F
information or otherwise, that an offence which he is
empowered to investigate under Section 156 has been
· committed, he shall proceed to investigate the facts and
circumstances of the case. It is further held in the said judgment
that, in truth the provisions as to an information report G
(commonly called a First Information Report) are enacted for
other reasons. Its object is to obtain early information of
alleged criminal activity, to record the circumstances before
there is time for them to be forgotten or embellished, and it has
to be remembered that the report can be put in evidence when H
1080 SUPREME COURT REPORTS [2012] 1 S.C.R.
A the informant is examined, if it is desired to do ~o. It is further
held in the said judgment that there is a statutory right on part
of the police to investigate the circumstances of an alleged
cognizable crime without requiring any authority from the judicial
authorities.
B
15. On behalf of the Union of India reference was made
to the judgment of this Court delivered in The State of Uttar
Pradesh v. Bhagwant Kishore Joshi AIR 1964 SC 221 wherein
it has been held vide para 8 that Section 154 of the Code
prescribed the mode of recording the information received
C orally or in writing by an officer incharge of a police station in
respect of commission of a cognizable offence. Section 156
thereof authorizes such an officer to investigate any cognizable
offence prescribed therein. Though, ordinarily investigation is
undertaken on information received by a police officer, the
D receipt of information is not a condition precedent for
investigation.
16. It is further held that Section 157 prescribes the
procedure in the matter of such an investigation which can be
E initiated either on information or otherwise. It is also held that
it is clear from the said provision that an officer in charge of a
police station can start investigation either on information or
otherwise. The judges in the said judgment referred to a
decision of this Court in the case .of H.N. Rishbud and lnder
F Singh v. The State of Delhi 1955 SCR (1) 1150 at pp.1157-
58 that the graphic description of the stages is only a
restatement of the principle that a vague information or an
irresponsible rumour would not by itself constitute information
within the meaning of Section 154 of the Code or the basis of
G an investigation under Section 157 thereof. The said case was
in respect of an offence alleged under Prevention of Corruption
Act, 1947. The said case was under the old Code which did
not define the term 'investigation' (paragraph 18 of the
concurring judgment of Justice Mudholkar at page 226). It is
also observed that the main object of investigation mean to
H
. LALITA KUMARI v. GOVERNMENT OF U.P. 1081
[DALVEER BHANDARI, J.]
bring home the offence to the offender. The essential part of A
the duty of an investigating officer in this connection is, apart
from arresting the offender, to collect all material necessary for
establishing the accusation "against" the offender.
17. The following observations in the concurring judgment
8
of Bhagwant Kishore Joshi (supra) were found in paragraph
18:
"In the absence of any prohibition in the Code, express or
implied, I am of opinion that it is open to a Police Officer
to make preliminary enquiries before registering an C
offence and making a full scale investigation into it. No
doubt, s. 5A of the Prevention of Corruption Act was
enacted for preventing harassment to a Government
servant and with this object in view investigation, except
with the previous permission of a Magistrate, is not D
permitted to be made by an officer below the rank of a
Deputy Superintendent of Police. Where however, a Police
Officer makes some preliminary enquiries, does not arrest
or.even question an accused or question any witnesses
but merely makes a few discreet enquiries or looks at E
some documents without making any notes, it is difficult
to visualise how any possible harassment or even
embarrassment would result therefrom to the suspect or
the accused person."
F
18. In case of H.N. Rishbud (supra}, in the case under the
Prevention of Corruption Act, 1947, it is observed as under:-
"lnvestigation usually starts on information relating to the
commission of an offence given to an officer in charge of
a police station and recorded under section 154 of the G
Code. If from information so received or otherwise, the
officer in charge of the police station has reason to
suspect the commission of an offence, he or some other
subordinate officer deputed by him, has to proceed to
the spot to investigate the facts and circumstances of the H
1082 SUPREME COURT REPORTS [2012] 1 S.C.R.
A case and if necessary to take measures for the discovery
and arrest of the offender."
It is further held :-
"Thus investigation primarily consists in the
B ascertainment of the facts and circumstances of the case.
By definition, it includes "all the proceedings under the
Code for the collection of evidence conducted by a police
officer".
c It is further held in the said judgment that :
'Thus, under the Code investigation consists generally
of the following steps:(1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender,
D (4) Collection of evidence relating to the commission of
the offence which may consist of (a) the examination of
various persons (including the accused) and the reduction
of their statements into writing, if the officer thinks fit, (b)
the search of places of seizure of things considered
E necessary for the investigation and to be produced at the
trial, and (5) Formation of the opinion as to whether on the
material collected there is a case to place the accused
before a Magistrate for trial and if so taking the necessary
steps for the same by the filing of a charge-sheet under
F section 173."
19. It was further submitted that this Court in the case of
Damodar v. State of Rajasthan reported in 2004(12) SCC 336
referred to the observations of the judgment of this Court
G rendered in case of Ramsinh Bavaji Jadeja v. State of Gujarat
1994 (2) sec 685 and observed that the question as to at what
stage the investigation commence has to be considered and
examined on the facts of each case especially when the
information of alleged cognizable offence has been given on
H telephone. The said case deals with information received on
LALITA KUMAR I v. GOVERNMENT OF U.P. 1083
[DALVEER BHANDARI, J.]
telephone by an unknown persor.. In paragraph 10 it is A
observed thus "in order to constitute the FIR, the information
must reveal commission of act which is a cognizable offence."
20. It is further observed in paragraph 11 in the case of
Damodar (supra) that in the context of the facts of the said case,
B
that any telephonic information about commission of a
cognizable offence, if any, irrespective of the nature and details
of such information cannot be treated as an FIR. It is further
held that if the telephonic message is cryptic in nature and the
officer incharge proceeds to the place of occurrence on the
basis of that information to find out the details of the nature of C
the offence, if any, then it cannot be said that the information
which had been received by him on telephone shall be deemed
to be an FIR.
21. It is also observed that the object and purpose of giving D
such telephonic message is not to lodge an FIR, but to make
the officer incharge of the police station reach the place of
occurrence. It is further held that if the information given on
telephone is not cryptic and on the basis of that information the
officer incharge is prima facie satisfied about commission of E
a cognizable offence and he proceeds from the police station
after recording such information, to investigate such offence,
then any statement made by any person in respect of the said
offence including the participants shall be deemed to be
statement made by a person to the police officer in the course F
of investigation covered by Section 162 of the Code.
22. This Court in the case of Binay Kumar Singh v. The
State of Bihar 1997(1) SCC 283 observed as under:-
,, ..... It is evidently a cryptic information and is hardly G
sufficient for discerning the commission of any cognizable
offence therefrom. Under Section 154 of the Code the
information must unmistakably relate to the commission of
a cognizable offence and it shall be reduced to writing (if
given orally) and shall be signed by its maker. The next H
1084 SUPREME COURT REPORTS (2012] 1 S.C.R.
A requirement is that the substance thereof shall be entered
in a book kept in the police station in such form as the
State Government has prescribed. First information report
(FIR) has to be prepared and it shall be forwarded to the
magistrate who is empowered to take cognizance of such
s offence upon such report. The officer in charge of a police
station is not obliged to prepare FIR on any nebulous
information received from somebody who does not
disclose any authentic knowledge about commission of
the cognizable offence. It is open to the officer-in-charge
c to collect more information containing details about the
occurrence, if available, so that he can consider whether
a cognizable offence has been committed warranting
investigation thereto."
23. It is submitted that in the said judgment what fell for
D consideration of the Court was the conviction and sentence in
respect of the offence under Sections 302/149 of the IPC in
respect of a murder which took place in a Bihar village wherein
lives of 13 people were lost and 17 other were badly injured
along with burning alive of large number of mute cattle and many
E dwelling houses. It is also submitted that the interpretation of
Section 154 was not directly in issue in the said judgment.
24. Reliance is placed on a decision of this Court in the
case of Madhu Bala v. Suresh Kumar and Others reported
F as 1997 (8) SCC 476 in the context of Sections 156(3) 173(2),
154 and 190(1) (a) and (b) and more particularly upon the
following paragraphs of the said judgment. The same read as
under:-
"Coming first to the relevant provisions of the Code,
G Section 2(c/) 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
H offence" means an offence for which, and "cognizable
LALITA KUMARI v. GOVERNMENT OF U.P. 1085
[DALVEER BHANDARI, J.]
case" means a case in which a police officer may in A
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 B
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 c
offence given to him orally and every sucll 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 D
which we are primarily concerned in these appeals reads
as under:
"(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 E
over the local area within the limits of such station
would have power to inquire into or try under the
provisions of Chapter XII I.
(2) No proceeding of a police officer in any such F
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 G
may order such an investigation as above
mentioned."
On completion of investigation undertaken under Section
156(1) the officer in charge of the police station is required H
1086 SUPREME COURT REPORTS [2012] 1 S.C.R.
A under·Section 173(2) to forward to a Magistrate
empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State
Government containing all the particulars mentioned
therein. Chapter XIV of the Code lays down the conditions
B requisite for initiation of proceedings by the Magistrate.
Under sub-section (1) of Section 190 appearing in that
Chapter any Magistrate of the First Class and any
Magistrate of the Second Class specially empowered may
take cognizance of any offence (a) upon receiving a
c "complaint" of facts which constitutes such offence; (b)
upon a "police report" of such facts; or (c) upon information
received from any person other than a police officer, or
upon his own knowledge that such offence has been
committed. Chapter XV prescribes the procedure the
Magistrate has to initially follow if it takes cognizance of
D
an offence on a complaint under Section 190(1)(a).
25. Learned counsel for the Union of India relied on the
following passage from Madhu Bala (supra) :-
E "From a combined reading of the above provisions it is
abundantly clear that when a written complaint disclosing
a cognizable offence is made before a Magistrate, he may
take cognizance upon the same under Section 190(1)(a)
of the Code and proceed with the same in accordance
F with the provisions of Chapter XV. The other option
available to the Magistrate in such a case. is to send the
complaint to the appropriate police station under Section
156(3) for investigation. Once such a direction is given
under sub-section (3) of Section 156 the police is required
to investigate into that complaint under sub-section (1)
G
thereof and on completion of investigation to submit a
"police report" in accordance with Section 173(2) on which
a Magistrate may take cognizance under Section
190(1)(b) - but not under 190(1)(a). Since a complaint
filed before a Magistrate cannot be a "police report" in
H
LALITA KUMAR! v. GOVERNMENT OF U.P. 1087
[DALVEER BHANDARI, J.]
view of the definition of "complaint" referred to earlier and A
since the investigation of a "cognizable case" by the police
under Section 156(1) has to culminate in a "police report"
the "complaint" - as soon as an order under Section
156(3) is passed thereon - transforms itself to a report
given in writing within the meaning of Section 154 of the B
Code, which is known as the first information report (FIR).
As under Section 156(1), the police can only investigate
a cognizable "case", it has to formally register a case on
that report."
26. Mr. Raval also relied on the following passage from
c
Madhu Bala' s case:-
"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 that complaint D
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. E
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- F
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 G
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".
H
1088 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 27. This Court in the case of Hallu and others v. State of
Madhya Pradesh 1974 (4) SCC 300 in the context of Section
154 of the Code held (para 7) that Section 154 of the Code
does not require that the Report must be given by a person who
has personal knowledge of the incident reported. It is further
B held that the said Section· speaks of an information relating to
the commission of a cognizable offence given to an officer
incharge of a police station.
28. Mr. Raval placed reliance on para 8 of the judgment
of this Court in the case of Rajinder Singh Katoch v.
C Chandigarh Administration and others 2007 (10) SCC 69,
wherein this Court observed as under:-
"8.Although the officer in charge of a police station is legally
bound to register a first information report ·in terms of
D Section 154 of the Code of Criminal Procedure, if the
allegations made by them give rise to an offence which can
be investigated without obtaining any permission from the
Magistrate concerned, the same by itself, however, does
not take away the right of the competent officer to make a
E preliminary enquiry, in a given case, in order to find out as
to whether the first information sought to be lodged had
any substance or not. In this case, the authorities had made
investigations into the matter. In fact, the Superintendent
of Police himself has, pursuant to the directions issued by
F the High Court, investigated into the matter and visited the
spot in order to find out the truth in the complaint of the
petitioner from the neighbours. It was found that the
complaint made by the appellant was false and the same
had been filed with an ulterior motive to take illegal
possession of the first floor of the house."
G
29. While referring to the decision of this Court in Ramesh
Kumari (supra) in para 11 of the judgment in Rajinder Singh's
case, it is observed as under:-
H "11. We are not oblivious to the decision of this Court in
LALITA KUMARI v. GOVERNMENT OF U.P. 1089
[DALVEER BHANDARI, J.]
Ramesh Kumari v. State (NCT of Delhi) wherein such a A
statutory duty has been found in the police officer. But, as
indicated hereinbefore, in an appropriate case, the police
officers also have a duty to make a preliminary enquiry so
as to find out as to whether allegations made had any
substance or not." B
30. It is further submitted that the above observations run
concurrently to the settled principles of law and more particularly
the three judge Bench decision of this Court in Aleque
Padamsee and Others (supra).
c
31. In the context of the statutory provisions, the learned
counsel for the Union of India drew the attention of this Court
to the decision of this Court in the case of Superintendent of
Police, CBI and Others v. Tapan Kumar Singh AIR 2003 SC
4140, paragraph 20 at page 4145 as under:- D
"It is well settled that a First Information Report is not an
encyclopedia, 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 he may E
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 eye witness so as
to be able to disclose in great details all aspects of the
offence committed. What is of significance is that the
F
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, G
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 H
1090 SUPREME COURT REPORTS [2012) 1 S.C.R.
A 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 •
B 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
c 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 concerned police
officer 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
D
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
E 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
F to investigate the case and discover the true facts, if he
can."
32. This Court in its decision in the case of Ramesh
Kumari (supra) has observed as under in paragraphs 3, 4 and
G 5 :-
"3. Mr Vikas Singh, the learned Additional Solicitor
General, at the outset, invites our attention to the counter-
affidavit filed by the respondent and submits that pursuant
to the aforesaid observation of the High Court the
H complaint/representation has been subsequently examined
LALITA KUMAR! v. GOVERNMENT OF U.P. 1091
[DALVEER BHANDARI, J.]
by the respondent and found that no genuine case was A
established. We are not convinced by this submission
because the sole grievance of the appellant is that no case
has been registered in terms of the mandatory provisions
of Section 154(1) of the Criminal Procedure Code.
Genuineness or otherwise of the information can only be B
considered after registration of the case. Genuineness or
credibility of the information is not a condition precedent
for registration of a case. We are also clearly of the view
that the High Court erred in law in dismissing the petition
solely on the ground that the contempt petition was pending c
and the appellant had an alternative remedy. The ground
of alternative remedy nor pending of the contempt petition
would be no substitute in law not to register a case when
a citizen makes a complaint of a cognizable offence
against a police officer. o
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 E
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: (SCC pp. 354-55)
31. At the stage of registration of a crime or a case on F
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 enquiry as to whether the information, laid by the
informant is reliable and genuine or otherwise and refuse G
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 H
1092 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 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
B 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
c 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
D
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
E 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 complainf
and 'credible information' are used. Evidently, the non-
F qualification of the word 'information' in Section 154(1)
unlike in Section 41(1)(a) a.nd (g) of the Code :;iay 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
G 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
H earlier Codes will indicate that the legislature had
LALITA KUMARI v. GOVERNMENT OF U.P. 1093
[DALVEER BHANDARI, J.]
purposely thought it fit to employ only the word 'information' A
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 B
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 c
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
0
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."
33. Finally, this Court in Ramesh Kumari (supra) in para
33 said :- E
"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 F
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."
34. The views expressed by this Court in paras 31, 32 and
33 as quoted above leave no manner of doubt that the provision G
. of Section 154 of the Code is mandatory and the officer
concerned is duty-bound to register the case on the basis of
such an information disclosing cognizable offence.
35. In the case of Ramesh Kumari (supra), this Court has H
1094 SUPREME COURT REPORTS [2012] 1 S.C.R.
A held that the views expressed by this Court in the case of State
of Haryana and Others v. Bhajan Lal and Others 1992 Suppl.
(1) sec 335 leave no matter of doubt that the provisions of
Section 154 of the Code is mandatory and the officer
concerned is duty bound to register the case on the basis of
B such information disclosing a cognizable offence.
36. Mr. Raval while concluding his arguments reiterated
that Section 154 of the Code it is mandatory for the officer
concerned to register the case on the basis of such information
including cognizable offence. According to Union of India, the
C police officer has no discretion in the matter and this is
according to the legislative intention behind enacting Section
154 of the Code of Criminal Procedure.
37. Mr. Ratnakar Das, learned senior advocate appearing
D for the State of U.P. adopted the arguments addressed by Mr.
Raval on behalf of the Union of India and submitted that the word
'shall' appearing in Section 154 mandates the police to enter
the information about commission of a cognizable offence in a
book in such form commonly known as "First Information
E Report'. At that stage, the police cannot go into the question
about the truth or otherwise of the information and make a roving
·enquiry.
38. It was also submitted by Mr. Das that the word
'information' is not qualified by credible information. It has to
F be recorded with utmost dispatch and if its recording is
dependent upon any type of preliminary enquiry, then there
would be a great temptation to incorporate the details and
circumstances advantageous to the prosecution which may be
lacking in the earlier information. Similarly, if the police is given
G the power to hold a preliminary inquiry before registration of an
FIR it may benefit the wrongdoer because by afflux of time, the
evidence would be obliterated or destroyed and thereby justice
would be denied to the victim of crime.
H 39. Mr. Das gave an example that in a bride burning case,
LALITA KU MARI v. GOVERNMENT OF U.P. 1095
[DALVEER BHANDARI, J.]
when a person makes a complaint that the husband and the A
in-laws of his daughter have doused her with kerosene and set
her ablaze and arrangements were being made to cremate the
dead body, in that case, if the police instead of taking
immediate steps to register an FIR proceeds to the spot to
seize the dead body and the burnt clothes etc. on the plea that B
he is required to make preliminary enquiry to ascertain the
truth, then during the interregnum, no evidence would be
available to bring the offenders to book. It needs to mention
that power is conferred upon the police under the Code to make
seizure in course of investigation and not during the enquiry. c
So, the police being in connivance with the accused may permit
them to cremate the dead body in order to cause
disappearance of the evidence.
40. It is further submitted by Mr. Das that now-a-days
custodial violence is on the rise. Horror of Bhagalpur blinding D
case and the Maya Tyagi case in Uttar Pradesh are still in the
minds of the people. It is complained that the police do not
take action against their own brethren who commit crimes.
Most of the times the Court intervenes and it is only then that
the person wronged gets justice. In such cases if the police is E
given handle to hold a preliminary enquiry the offender will get
a scope to fabricate evidence and ultimately the police will deny
registration of an FIR on the ground that the preliminary enquiry
does not reveal any such offence having been committed at all.
F
41. It was submitted on behalf of the Union of India and
the State of U.P. that in the Code the Legislature never intended
to incorporate any provision for conducting any 'preliminary
enquiry' before registering an FIR when a report regarding
commission of a cognizable offence is made. The specific G
question on this issue was never raised or agitated earlier
before this Court at any point of time whether as a general rule
the police should hold a preliminary enquiry before registering
an FIR and take further steps in the investigation. Only in two
cases in respect of the offence under Prevention of Corruption
H
1096 SUPREME COURT REPORTS [2012] 1 S.C.R.
A Act which was to be investigated by the Central Bureau of
Investigation (CBI) this Court taking note of the peculiar facts
and circumstances of those cases, made an observation that
where public servant is charged with acts of dishonesty
amounting to serious misdemeanor, registering an FIR should
B be preceded by some suitable preliminary enquiry. In another
case in which dispute regarding property between the brothers
was involved, this Court in the peculiar facts of that case made
an observation that though the officer in charge of a police
station is legally bound to register a First Information Report in
c terms of Section 154 of the Code, if the allegations give rise
to an offence which can be investigated without obtaining
permission from the Magistrate, the same however, does not
take away the right of the competent officer to make a
preliminary enquiry in a given case in order to find whether the
FIR sought to be lodged has any substance or not.
0
42. According to him, the grievance of the appellant in the
said case was that his report which revealed commission of a
cognizable case was not treated as an FIR by the concerned
police. It was not the issue nor was any argument advanced
E as to whether registering of an FIR as provided under Section
154 of the Code should be preceded by some sort of
preliminary enquiry or not. In such view of the matter, the
observation of this Court that it does not take away the right of
the competent officer to make a preliminary enquiry in a given
F case is nothing but a passing observation.
43. According to Mr. Das, the provision of law about
registration of an FIR is very clear and whenever information
relating to cognizable offence is received by the police, in that
G event the police had no option but to register the FIR.
44. Mr. Shekhar Naphade, learned Senior counsel
appearing for the State of Maharashtra on the other hand has
taken a different view as taken by the Union of India and
submitted that before registering an FIR under Section 154
H Cr.P.C. it is open to the SHO to hold a preliminary enquiry to
LALITA KUMARI v. GOVERNMENT OF U.P. 1097
[DALVEER BHANDARI, J.]
ascertain whether there is prime facie case of commission of A
cognizable offence or not.
45. Mr. Naphade has comprehensively explained the
statutory scheme of Section 154 Cr.P.C .. According to him,
Sections 41, 57 154(3) 156(1) and 156(3), 157, 167, i90 and
8
202 are an integral part of the statutory scheme relating to
investigation of crimes. These provisions clearly contemplate
that the police officer can exercise powers under the aforesaid
provisions provided he is prima-facie satisfied that there are
reasonable grounds to believe that the accused is guilty of
commission of the cognizable offence. C
46. Section 154 of Cr.P.C. forms a part of a chain of
statutory provisions relating to investigation, and therefore, it
must follow that the provisions of Sections 41, 157, 167 etc.
have a bearing on the interpretation of Section 154 of Cr.P.C. D
The said judgments have interpreted Section 154 of Cr.P.C.
purely on the literal interpretation test and while doing so, the
other important tests of statutory interpretation, like a statute
must be read as a whole and no provision of a statute should
be considered and interpreted de-hors the other provisions, the E
rule of purposive construction etc. are lost sight of. He referred
to the following cases - Tarachand and Another v. State of
Haryana 1971 (2) SCC 579, Sandeep Rammilan Shukla v.
State of Maharashtra and Others 2009 (1) Mh.L.J. 97, Sakiri
Vasu v. State of Uttar Pradesh and Others 2008 (2) SCC 409, F
Nasar Ali v. State of Uttar Pradesh 1957 SCR 657, Union of
India and Another v. WN. Chadha 1993 (Suppl.) 4 SCC 260,
State of West Bengal v. S.N. Basak 1963 (2) SCR 52.
47. Mr.Naphade submitted that in the case of allegations
relating to medical negligence on the part of doctors, this Court G
has clearly held that no medical professional should be
prosecuted merely on the basis of the allegations in the
complaint. There should be an in-depth enquiry into the
allegations relating to negligence and this necessarily postulates
a preliminary enquiry before registering an FIR or before H
1098 SUPREME COURT REPORTS [2012] 1 S.C.R.
A entering on investigation. He reported to State of M.P. v.
Santosh Kumar - 2006 (6) SCC 1 and Dr. Suresh Gupta v.
Govt. of NCT of Delhi and Another 2004(6) SCC 422.
48. He also submitted that the same principle can also be
B made applicable to the people of different categories. The
literal interpretation of Section would mean the registration of
an FIR to a mechanical act. The registration of an FIR results
into serious consequences for the person named as accused
therein. It immediately results in loss of reputation, impairment
of his liberty, mental anguish, stigma, etc. It is reasonable to
C assume that the legislature could not have contemplated that
a mere mechanical act on the part of SHO should give rise to
such consequences.
49. He submitted that the registration of an FIR under
D Section 154 of Cr.P.C. is an administrative act of a police
officer. In the case of Rai Sahib Ram Jawaya Kapur and
Others v. State of Punjab 1955 (2) SCR 225, this Court has
explained what is administrative function and has said that
ordinarily the executive power connotes the residue of
E Government functions that .remain after legislative/judicial
functions are taken away. Every administrative act must be
based on application of mind, scrutiny and verification of the
facts. No administrative act can ever be a mechanical one.
This is the requirement of rule of law. Reference was made to
F paras 12 and 13 of State (Anti-Corruption Branch), Govt. of
NCT of Delhi and Another v. Dr. R. C. Anand and Another
2004 (4) sec 615.
50. According to Mr. Naphade, these judgments have not
considered the impact of Article 21 on Section 154 of Cr.P.C.
G After and beginning with Maneka Gandhi v. Union of India and
Another 1978 (1) SCC 248, this Court has applied Article 21
to several provisions relating to criminal law. This Court has
also said that the expression "law" contained in Article 21
necessarily postulates law which is reasonable and not merely
H a statutory provision irrespective of its reasonableness or
LALITA KUMAR! v. GOVERNMENT OF U.P. 1099
[DALVEER BHANDARI, J.]
otherwise. In the light of Article 21, provisions of Section 154 A
of Cr.P.C. must be read down to mean that before registering
an FIR, the Station House Officer must have a prima-facie
satisfaction that there is commission of cognizable offence as
registration of an FIR leads to serious consequences for the
person named as accused and for this purpose, the B
requirement of preliminary enquiry can be spelt out in Section
154 and can be said to be implicit within the provisions of
Section 154 of Cr.P.C. Reliance was placed on Maneka
Gandhi (supra) and S.M.D. Kiran Pasha v. Government of
Andhra Pradesh and Others 1990 (1) SCC 328. c
51. The fact that Sections 154 (3), 156(3), 190, 202 etc.
clearly provide for remedies to a person aggrieved by refusal
on the part of the SHO to register an FIR, clearly show that the
statute contemplates that in certain circumstances the SHO can
decline to register an FIR. D
52. To require SHO to register an FIR irrespective of his
opinion that the allegations are absurd or highly improbable,
motivated etc. would cause a serious prejudice to the person
named as accused in the complaint and this would violate his E
rights under Article 21. This Court has recognized the concept
of pre-violation protection implicit in Article 21. The said
judgments while relying upon the literal interpretation test have
not considered the rule of statutory interpretation that in certain
situations the expression "shall" does not convey mandatory F
character of the provisions. For example, proviso to Section
202 (2) has been held using the expression "shall" not to be
mandatory but directory. After all, Section 154 of Cr.P.C. is a
part of the procedural law and in respect of procedural law, the
expression "shall" may not always necessarily convey that the G
provision is mandatory. Mr. Naphade placed reliance on the
following cases - P. T. Rajan v. T.P.M. Sahir and Others
2003(8) SCC 498, Shivjee Singh v. Nagendra Tiwary and
Others 2010 (7) SCC 578 and Sarbananda Sonowal (II) etc.
v. Union offndia 2007 (1) SCC 174. The said judgments have H
1100 SUPREME COURT REPORTS [2012] 1 S .C.R.
A also not considered the rule of purposive interpretation and also
that the statute must be considered as a whole and no provision
can be interpreted in isolation.
53. The non-registration of an FIR does not result in crime
going unnoticed or unpunished. The registration of an FIR is
8
only for the purpose of making the information about the
cognizable offence available to the police and to the judicial
authorities at earliest possible opportunity. The delay in lodging
an FIR does not necessarily result in acquittal of the accused.
C The delay can always be explained.
54. Mr. Naphade also submitted that this Court has also
held that registration of an FIR is not a condition precedent for
initiating investigation into the commission of a cognizable
offence. Section 154 Cr.P.C. clearly imposed a duty on the
D police officer. When an information is received, the officer in
charge of the police station is expected to reach the place of
occurrence as early as possible. It is not necessary for him to
take steps only on the basis of an FIR. It is the duty of the State
to protect the life of an injured as also an endeavour on the part
E of the responsible police officer to reach the place of
occurrence in his implicit duty and responsibility. This has been
held in the case of Animireddy Venkata Ramana and Others
v. Public Prosecutor, High Court of Andhra Pradesh 2008 (5)
sec 368.
F 55. Mr. Naphade further submitted that ordinarily the SHO
should record an FIR upon receiving a complaint disclosing the
ingredients of a cognizable offence, but in certain situations he
should have the discretion of holding a preliminary enquiry and
thereafter if he is satisfied, register an FIR.
G
56. The provisions contained in Section 154 Cr.P.C. of
1973 were also there in the 1898 Cr.P.C. and even the earlier
one of 1877. The interpretation that was placed by the High
Courts and the Privy Council on these provisions prior to
H Maneka Gandhi (supra) rested principally on the words used
LAL/TA KUMARI v. GOVERNMENT OF U.P. 1101
[DALVEER BHANDARI, J.]
in the Section de-hors the other provisions of the Act and also A
de-hors the impact of Article 21 of the Constitution on the
criminal jurisprudence. In other words, the courts have followed
the test of literal interpretation without considering the impact
of Article 21.
B
57. It is a trite proposition that a person who is named in
an FIR as an accused, suffers social stigma. If an innocent
person is falsely implicated, he not only suffers from loss of
reputation but also mental tension and his personal liberty is
seriously impaired. After Maneka Gandhi's case, the
preposition that the law which deprives a person of his personal C
liberty must be reasonable, both from the stand point of
substantive aspect as well as procedural aspect is now firmly
established in our constitutional law. This warrants a fresh look
at Section 154 of Cr.P.C. Section 154 Cr.P.C. must be read
in conformity with the mandate of Article 21. If it is so D
interpreted, the only conclusion is that if a Police Officer has
doubts about the veracity of the complaint, he can hold
preliminary enquiry before deciding to record or not to record
an FIR.
E
58. It is the mandate of Article 21 which requires a Police
Officer to protect a citizen from baseless allegations. This,
however, does not mean that before registering an FIR the
police officer must fully investigate the case. A delicate balance
has to be maintained between the interest of the society and F
protecting the liberty of an individual. Therefore, what should
be the precise parameters of a preliminary enquiry cannot be
laid down in abstract. The matter must b-e left open to the
discretion of the police o(ficer.
59. A proposition that the moment the complaint discloses G
ingredients a 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. Similarly, the extreme point of view is that the police officer
must investigate the case substantially before registering an FIR H
1102 SUPREME COURT REPORTS [2012] 1 S. C.R.
A is also an argument of the other extreme. Both must be
rejected and a middle path must be chosen.
60. Mr.Naphade mentioned about Maneka Gandhi's case
and observed that the attempt of the Court should be to expand
B the reach and ambit of the fundamental rights, rather than to
attenuate their meaning and contents by a process of judicial
construction. The immediate impact of registration of an FIR
on an innocent person is loss of reputation, impairment of
personal liberty resulting in mental anguish and, therefore, the
act of the police officer in registering an FIR must be informed
C by reason and it can be so only when there is a prima facie
case against the named accused.
61. According to Mr. Naphade, the provisions of Article 14 ·
which are an anti-thesis of arbitrariness and the provisions of
D Articles 19 and 21 which offer even a pre-violation protection
require the police officer to see that an innocent person is not
exposed to baseless allegations and, therefore, in appropriate
cases he can hold preliminary enquiry. In Maneka Gandhi's
case this Court has specifically laid down that in R.C. Cooper's
E case it has been held that all fundamental rights must be read
together and that Articles 14, 19 and 21 overlap in their content
and scope and that the expression 'personal liberty' is of the
widest amplitude and covers a variety of rights which go to
constitute personal liberty of a citizen. (Reliance was
F particularly placed on paras 5,6 and 7 on pages 278-284).
62. Mr. Naphade further argued that this Court has held
that in order to give concrete shape to a right under Article 21,
this Court can issue necessary directions in the matter. If
directions as regards arrest can be given, there is no reason
G why guidelines cannot be framed by this Court as regards
registration or non-registration of an FIR under Section 154
Cr.P.C.
63. Mr. Naphade also submitted that the importance of the
H need of the police officer's discretion of holding a preliminary
LALITA KUMARI v. GOVERNMENT OF U.P. 1103
[DALVEER BHANDARI, J.]
inquiry is well illustrated by the judgment of this Court in the A
case of Uma Shankar Sitani v. Commissioner of Police, Delhi
and Ors. 1996 (11) SCC 714. In that case the complaint was
lodged by one Sarvjeet Chauhan against one Uma Shankar
relating to alleged cognizable offence. Uma Shankar was
arrested and upon investigation it was found that the B
complainant was a fictitious person. Somebody else had filed
the false complaint. The residential address of the fictitious
complainant was also fictitious. In the whole process Uma
Shankar went through serious mental turmoil as not only the
allegation was found to be false, but he was arrested by the c
police and had to undergo humiliation and loss of reputation.
Such incidents can happen and must have happened in scores
of cases as filing of false cases due to personal, political,
business rivalry, break-down of matrimonial relationship etc. are
rampant. D
64. Mr. Naphade submitted that Section 498-A of l.P.C.
which was meant to be a measure of protection, turned out to
be an instrument of oppression. Judicial notice of this has been
taken by this Court in the case of Preeti Gupta and Another v.
State of Jharkhand and Another (2010) 7 SCC 667. In the E
said case, this Court has referred to rapid increase in filing of
complaints which are not bona fide and are filed with oblique
motives. Such false complaints lead to insurmountable
harassment, agony and pain to the accused. This Court has
observed that the allegations of the complainant in such cases F
should be scrutinized with great care and circumspection. Is it,
therefore, not advisable that before registering an FIR, a
preliminary inquiry at least to verify the identity of the
complainant and his residential address should be carried out.
This case illustrates how on a false complaint, a person's right G
to life and liberty under Article 21 of the Constitution can be put
to serious jeopardy.
65. This Court in its judgment in Francis C. Mullin v.
Administrator, Union Territory of Delhi 1981 (1) SCC 608 H
1104 SUPREME COURT REPORTS (2012] 1 S.C.R.
A [paras 4 and 5) has held that Article 21 requires that no one
shall be deprived of his life and personal liberty except by
procedure established by law and this procedure must be
reasonable, fair and just. If the procedure is not reasonable,
fair and just, the Court will immediately spring into action and
B run to the rescue of the citizen. From this it can be easily
deduced that where the police officer has a reasonable doubt
about the veracity of the complaint and the motives that prompt
the complainant to make the complaint, he can hold a
preliminary inquiry. Holding of preliminary inquiry is the
c mandate of Article 21 in such cases. If the police officer
mechanically registers the complaint involving serious
allegations, even though he has doubts in the matter, Article 21
would be violated. Therefore, Section 154 must be read in the
light of Article 21 and so read preliminary inquiry is implicit in
Section 154. In paras 7 and 8 of the said judgment, this Court
0
has made an unequivocal declaration of the law that any act
which damages or injures or interferes with use of any limb or
faculty of a person, either permanently or even temporarily,
would be within the ambit of Article 21.
E 66. Not only this, every act which offends against and
imperils human dignity, would constitute deprivation pro tanto
of this right to live and it would have to be in accordance with
the reasonable, just and fair procedure established by law which
stands the test of other fundamental rights. A baseless
F allegation is a violation of human dignity and despite the police
officer having doubts about the allegation, he being required
to register an FIR, would be a clear infringement of Article 21.
67. Mr. Naphade further submitted that it is settled principle
G of law that no single provision of a statute can be read and
interpreted in isolation. The statute must be read as a whole.
In the present case, the provisions of Sections 41,57, 156, 157,
159, 167, 190, 200 and 202 ofCr.P.C. must be read together.
These provisions constitute the statutory scheme relating to
investigation of offences and, therefore, no single provision can
H
LALITA KUMARI v. GOVERNMENT OF U.P. 1105
[DALVEER BHANDARI, J.]
be read in isolation. Both, Sections 41 and 154 deal with A
cognizable offence. Section 41 empowers the police to arrest
any person without warrant from the Magistrate if such person
is concerned in any cognizable offence or against whom a
reasonable complaint has been made or credible information
has been received or reasonable suspicion exits of such· B
person having been so concerned with the cognizable offence.
Section 41 also specifically refers to a cognizable complaint
about commission of a cognizable offence.
68. The scheme of the Act is that after the police officer
records an FIR under Section 154 Cr.P.C., he has to proceed C
to investigate under Section 156 Cr.P.C. and while
investigating the police officer has power to arrest. What is
required to be noted is that for the purpose of arresting the
accused, the police officer must have a reasonable ground to
believe that the accused is involved in the commission of a D
cognizable offence. If Sections 41 and 154 are so read
together, it is clear that before registering an FIR under Section
154 the police officer must form an opinion that there is a prima
facie case against the accused. If he does not form such an
opinion and still proceeds to record an FIR, he would be guilty E
of an arbitrary action. Every public authority exercising any
powers under any statute is under an obligation to exercise that
power in a reasonable manner. This principle is well settled
and it forms an integral part of the legal system in this country.
F
69. Mr. Naphade submitted that the provisions of Section
154(3) enable any complainant whose complaint is not
registered as an FIR by the SHO to approach the higher police
officer for the purpose of getting his complaint registered as
an FIR and in such case, the higher police officer has all the G
powers of recording an Fl R and directing investigation into the
matter. Apart from this power under Section 36 any·police
officer senior in rank to an officer in charge of the police station
can exercise the same powers as may be exercised by such
officer in charge of the police station. Provisions of Section
H
1106 SUPREME COURT REPORTS (2012] 1 S.C.R.
A 154 (3) and Section 36 are clear indication that in an
appropriate case a police officer can either decline to register
the FIR or defer its ;egistration. The provisions of Section
154(3) and Section 36 is a sufficient safeguard against an
arbitrary refusal on the part of a police officer to register the
B FIR The very fact that a provision has been made in the statute
for approaching the higher police officer, is an indication of
legislative intent that in appropriate cases, a police officer may
decline to register an FIR and/or defer its registration.
70. In addition to the remedy available to the aggrieved
C person of approaching higher police officer, he can also move
the concerned Magistrate either under Section 156(3) for
making a complaint under Section 190. If a complaint is lodged,
the Magistrate can examine the complainant and issue process
against the accused and try the case himself and in case triable
D by Sessions Court, then he will commit the case to Sessions
under Section 209.
71. The Magistrate can also on receipt of a complaint, hold
an enquiry or direct the police to investigate. In addition to the
E above, the Magistrate also has a power to direct investigation
under Section 159 Cr.P.C. In the case of Mona Panwar v. High
Court of Judicature of Allahabad (2011) 3 SCC 496 in paras
17 and 18 on page 503 this Court has, inter alia, held that if
the complaint relating to a cognizable officer is not registered
F by the police, then the complainant can go the Magistrate and
then the Magistrate has the option of either passing an order
under Section 156(3) or proceeding under Section 200/202 of
the Code.
72. It was also submitted by Mr. Naphade that an order
G under Section 156(3) of the Code is in the nature of a
preemptory reminder or intimation to the police to exercise its
plenary power of investigation under Section 156(1 ). Such an
investigation embraces the entire continuous process which
begins with the collection of evidence under Section 156 and
H ends with the vital report either under Section 169 or
LALITA KUMARI v. GOVERNMENT OF U.P. 1107
[DALVEER BHANDARI, J.]
submission of a charge-sheet under Section 173 of the Code. A
A Magistrate can under Section 190 of the Code before taking
cognizance, direct investigation by the police by order under
Section 156(3) of the Code.
73. Mr. Naphade also submitted that the very fact that the
8
Legislature has provided adequate remedies against refusal
to register an FIR and hold investigation in cognizable offences
is indicative of legislative intent that the police officer is not
bound to record an FIR merely because the ingredients of
cognizable offences are disclosed in the complaint if he has C
doubt about the veracity of the complaint.
74. In further support of the proposition that a police officer
is not bound to register an FIR on mere disclosure of existence
of ingredients of cognizable offence, it is submitted that the
statute does not contemplate that for the purpose of D
investigation, recording of an FIR is a condition precedent.
Section 156 empowers the police to do so. Similarly, Section
157 clearly lays down that if from information received or
otherwise an officer in charge of the police station has reason
to suspect the commission of an offence, he can investigate E
into the same. In Section 157(1) the expression "from
information received" obviously refers to complaint under
Section 154 Cr.P.C. registered as an FIR. The word "otherwise"
in Section 157 Cr.P.C. clearly indicates that recording of an FIR
is not a condition precedent to initiation of investigation. The F
very fact that the police have a power of investigation
independent of registration of an FIR is a clear pointer to the
legislative intent that a police officer is not bound to register
an FIR in each and every case.
75. Mr. Naphade relied on the case of Apren Joseph alias G
current Kunjukunju and Others v. State of Kera/a 1973 (3)
SCC 114 wherein in para 11 this Court has held that recording
of an FIR is not a condition precedent for setting in motion
criminal investigation. In doing so, this Court has approved the
H
1108 SUPREME COURT REPORTS [2012] 1 S.C.R.
A observation of Privy Council made in the case of Khwaja Nazim
Ahmad (supra).
76. Mere recording of an FIR under Section 154 Cr.P.C.
is of no consequence unless the alleged offence is investigated
into. For the purpose of investigation after registration of the
8
FIR, the police officer must have reason to suspect commission
of an offence. Despite registration of the FIR, the police officer
may not have a reasonable ground to suspect that an offence
has been committed and in that situation he may decline to carry
out investigation and may come to the conclusion that there is
C no sufficient ground for carrying out investigation. If under the
proviso (b) to Section 157 Cr.P.C. the police officer has such
discretion of not investigating, then it stands to reason that
registration of an FIR should not result into an empty formality.
D 77. The registration of an FIR should be effective and it can
be effective only if further investigation is to be carried out and
further investigation can be carried out only if the police officer
has reasonable ground to suspect that the offence is
committed. If, therefore, there is no reasonable ground to
E suspect the commission of cognizable offence, the police
officer will not investigate and if that is a situation, then on the
same footing he may decline to register the FIR. This is clearly
implicit in the provisions of Section 154(1 ). It is, submitted that
if the provisions of Section 154 are read with Sections
F 41,57,156,157,159,167,190,200 and 202 Cr.P.C., the only
possible conclusion is that a police officer is not bound to
register each and every case.
78. Mr. Naphade placed reliance on State of Maharashtra
and Others v. Sarangdharsingh Shivdassingh Chavan and
G Another (2011) 1 SCC 577 wherein in paragraphs 29 and 30,
this Court has observed as follows:-
"29. The legal position is well settled that on information
being lodged with the police and if the said information
H discloses the commission of a cognizable offence, the
LALITA KUMARI v. GOVERNMENT OF U.P. 1109
[DALVEER BHANDARI, J.]
police shall record the same in accordance with the A
provisions contained under Section 154 of the Criminal
Procedure Code. The police officer's power to investigate
in case of a cognizable offence without order of the
Magistrate is statutorily recognised under Section 156 of
the Code. Thus the police officer in charge of a police B
station, on the basis of information received or otherwise,
can start investigation if he has reasons to suspect the
commission of any cognizable offence.
30. This is subject to provisos (a) and (b) to Section 157
of the Code which leave discretion with the police officer C
in charge of police station to consider if the information is
not of a serious nature, he may depute a subordinate
officer to investigate and if ii appears to the officer-in-
charge that there does not exist sufficient ground, he shall
not investigate. This legal framework is a very vital D
component of the rule of law in order to ensure prompt
investigation in cognizable cases and to maintain law and
order."
79. He submitted that if the police officer is of the opinion E
that the complaint is not credible and yet he is required to ·
register the FIR, then he would be justified in not investigating
the case. In such a case the FIR would become a useless
lumber and a dead letter. The police officer would then submit
a closure report to the Magistrate. The Magistrate then would F
issue notice to the complainant and hear him. If the Magistrate
is of the opinion that there is a case, then he may direct police
to investigate.
80. Mr. Napahde submitted that the aforesaid analysis of
various provisions of Criminal Procedure Code clearly bring out G
that the statutory provisions clearly maintain a balance between
the rights of a complainant and of the ~ociety to have a
wrongdoer being brought to book and the rights of the accused
against baseless allegations.
H
1~10 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 81. The provisions have also to be read in the light of the
principle of malicious prosecution and the fundamental rights
guaranteed under Articles 14, 19 and 21. Every 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
B 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 carry out investigation and
thereby putting the liberty of a citizen in jeopardy, he would
c expose himself to the charge of malicious prosecution and
against the charge of malicious prosecution the doctrine of
sovereign immunity will not protect him. There is no law
protecting. a police officer who takes part in the malicious
prosecution.
D 82. Mr. Naphade also submitted that the word "shall" used
in the statute does not always mean absence of any discretion
in the matter.
83. The word "shall" does not necessarily lead to provision
E being imperative or mandatory.
84. The use of word "shall" raises a presumption that the
particular provision is imperative. But, this presumption may
be rebutted by other considerations such as, object and scope
of the enactment and other consequences flowing from such
F construction. There are numerous cases where the word "shall"
has, therefore, been construed as merely directory.
85. In the case of Sainik Motors, Jodhpur and Others v.
State of Rajasthan AIR 1961 SC 1480, Hidayatullah, J. has held
G that the word "shall" is ordinarily mandatory, but it is sometimes
not so interpreted if the context of intention otherwise demands.
86. Further, Subba Rao, J. in the case of State of Uttar
Pradesh and Others v. Babu Ram Upadhya AIR 1961 SC
H 751, has observed that when the statute uses the word "shall"
LALITA KUMAR! v. GOVERNMENT OF U.P. 1111
[DALVEER BHANDARI, J.]
prima facie it is mandato;y, but the Court may ascertain the real A
intention of the legislature carefully attending to the whole scope
of the statute.
87. In the case of State of Madhya Pradesh v. Mis Azad
Bharat Finance Co. and Another AIR 1967 SC 276 it has been
B
held that the word "shall" does not always mean that the
provision is obligatory or mandatory. It depends upon the
context in which the word "shall" occur and the other
circumstances.
88. In the case of Shivjee Singh (supra) it has ueen held C
that the use of word "shall" in proviso to Section 202 (2) of
Cr.P.C. prima facie is indicative of mandatory character of the
provision contairied therein. But, a close and critical analysis
thereof along with other provisions show that the same is not
mandatory. Further, it has been observed that by its very D
nomencletture, Cr.P.C. is a compendium of law relating to
criminal procedure. The provisions contained therein are
required to be interpreted keeping in view the well recognized
rule of construction that procedural prescriptions are meant for
doing substantial justice. If violation of procedural provisions E
does not result in denial of a fair hearing or causes prejudice
to the party, the same has to be treated as directly
notwithstanding the use of the word "shall".
89. In P. T. Rajan (supra), this Court has discussed the
F
principles as to whether a statute is mandatory or directory.
The Court has observed that a statute as is well known must
be read in the text and context thereof. Whether a statute is
directory or mandatory would not be dependent on the use of
the word "shall" or "may". Such a question must be posed and
answered having regard to the purpose and object it seeks to G
achieve. It has further been held that a provision in a statute
which is procedural in nature although employs the word "shall"
may not be held to be mandatory if thereby no prejudice is
caused. The analysis of various provisions of Cr.P.C. clearly
shows that no prejudice is caused if police officer does not H
1112 SUPREME COURT REPORTS [2012] 1 S.C.R.
A register an FIR. The complainant has effective remedies under
Sections 154(3), 156, 190 Cr.P.C. etc.
90. Mr. Naphade, the learned senior counsel submitted that
it is impossible to rut the provisions of Section 154 Cr.P.C. in
any straight jacket formula. However, some guidelines can be
8
framed as regards registration or non-registration of an FIR.
According to him, some such guidelines are as follows:-
1. Normally in the ordinary course a police officer
should record an FIR, if the complaint discloses a
C cognizable offence. However, in exceptional cases
where the police officer has reason to suspect that
the complaint is motivated on account of personal
or political rivalry, he may defer recording of the
Fl R, and take a decision after preliminary enquiry.
D
2. In case of complaints which are a result of vendetta
like complaints under Section 498A Cr.P.C. (IPC),
the police officer should be slow in recording an FIR
and he should record an FIR only if he finds a prima
facie case.
E
3. The police officer may also defer recording of an
FIR if he feels that the complainant is acting under
a mistaken belief.
F 4. The police officer may also defer registering an FIR
if he finds that the facts stated in the complaint are
complex and complicated, as would be in respect
of some offences having financial contents like
criminal breach of trust, cheating etc.
G 91. The aforesaid are only illustrations and not exhaustive
of all conditions which may warrant deferment of an FIR.
92. The second aspect of the matter is what test should
the police officer take in case he is of the opinion that
H
LALITA KUMAR! v. GOVERNMENT OF U.P. 1113
[DALVEER BHANDARI, J.]
registration of an FIR should be deferred. He suggested the A
following measures :-
1. The police officer must record the complaint in the
Station/General Diary. This will ensure that there
is no scope for manipulation and if subsequently he
8
decides to register an FIR, the entry in Station/
General Diary should be considered as the FIR.
2. He should immediately report the matter to the
superior police officer and convey him his reasons
or apprehensions and take his permission for C
deferring the registration. A brief note of this should
be recorded in the station diary.
3. The police officer should disclose to the
complainant that he is deferring registration of the D
Fl R and call upon him to comply with such
requisitions the police officer feels necessary to
satisfy himself about the prima facie credibility of
the complaint. The police officer should record this
in the station diary. All this is necessary to avoid
E
any charge as regard to the delay in recording the
FIR. It is a settled law that a mere delay in
registering an FIR is not harmful if there are
adequate reasons to explain the delay in filing an
FIR.
F
93. According to him, in the light of the above discussion
in respect of the impact of Article 21 on statutory provisions, it
must be held that Section 154 of Cr.P.C. must be interpreted
in the light of Article 21. The requirement of Article 21 is that
the procedure should be just and fair. If, therefore, the police G
officer himself has doubts in the matter, it is imperative that he
should have the discretion of holding a preliminary inquiry 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. H
1114 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 94. Learned counsel appearing for the State of Tamil Nadu
adopted the arguments submitted by Mr. Naphade, the learned
senior counsel for Maharashtra and submitted that ordinarily a
police officer has to register an FIR when a cognizable offence
is made out, but in exceptional cases he must have some
s discretion or latitude of conducting some kind of preliminary
inquiry before recording of the FIR.
95. Learned counsel for the parties have drawn our
attention to two sets of cases decided by this Court expressing
C totally divergent judicial opinions. We deem it appropriate to
briefly summarise them in the following paragraphs.
96. This Court in the case of Bhajan Lal and Others
(supra), Ramesh Kumari (supra), Parkash Singh Badal and
Another v. State of Punjab and Others (2007) 1 SCC 1 and
D Aleque Padamsee and Others (supra) held that if a complaint
alleging commission of cognizable offence is received in the
Police Station, then the S .H .0. has no orition but to register an
F.l.R. under Section 154 Cr.P.C ..
E 97. On the other hand, this Court in following cases,
namely, Rajinder Singh Katoch (supra), P. Sirajuddin etc. v.
State of Madras etc. 1970 (1) SCC 595, Bhagwant Kishore
Joshi (supra), Sevi and Another etc. v. State of Tamil Nadu
and Another 1981 (Suppl.) SCC 43 have taken contrary view
and held that before registering the FIR under Section 154 of
F Cr.P.C., it is open to the SHO to hold a preliminary enquiry to
ascertain whe:ther there is a prima facie case of commission
of cognizable offence or not.
98. We deem it appropriate to give a brief ratio of these
G cases.
99. In Bhajan Lal (supra), this Court observed as under:-
" It is, therefore, manifestly clear that if any information
disclosinp a cognizable offence is laid before an officer
H in charge of a police station satisfying the requirements
LALITA KUMAR! v. GOVERNMENT OF U.P 1115
[DALVEER BHANDARI, J.]
of Section 154(1) of the Code, the said police officer has A
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."
100. In Ramesh Kumari (supra). this Court observed that 8
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 an information disclosing cognizable offence.
101. In Parkash Singh Badal (supra), this Court observed
as under:- C
"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 D
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."
102. In Aleque Padamsee (supra), this Court observed as
under:- E
"The correct position in law, therefore, is that the police
officials ought to register the FIR whenever facts brought
to their notice show that cognizable offence has been made
out." F
103. There is another set of cases where this Court has
taken contrary view.
104. In Raji'nder Singh Katoch (supra), this Court observed
as under:- G
"We are not oblivious to the decision of this Court in
Ramesh Kumari v. State (NCT of Delhi) wherein such a
statutory duty has been found in the police officer. But. as
indicated hereinbefore. in an appropriate case, the police H
1116 SUPREME COURT REPORTS (2012] 1 S.C.R.
A officers also have a duty to make a preliminary enquiry so
as to find out as to whether allegations made had any
substance or not."
105. In Bhagwant Kishore Joshi (supra), Mudholkar, J. in
his concurring judgment has observed as under:-
8
"I am of opinion that it is open to a Police Officer to make
preliminary enquiries before registering an offence and
making a full scale investigation into it."
c 106. In P. Sirajuddin etc. (supra), this Court quoted the
observations of the High Court as under:-
"( a) "substantial information and evidence had been
gathered before the so-called first information report was
registered"."
D
107. In Sevi and Another (supra), this Court observed as
under:-
"If he was not satisfied with the information given by PW
E 10 that any cognizable offence had been committed he
was quite right in making an entry in the general diary and
proceeding to the village to verify the information without
registering any FIR."
108. II is quite evident from the ratio laid down in the
F aforementioned cases that different Benches of this Court have
taken divergent views in different cases. In this case also after
this Court's notice, the Union of India, the States and the Union
Territories have also taken or expressed divergent views about
the interpretation of Section 154 Cr.P.C.
G
109. 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 Cr.P.C., a police officer is
H bound to register an FIR when a cognizable offence is made
LALITA KUMARI v. GOVERNMENT OF U.P. 1117
[DALVEER BHANDARI, J.]
out or he (police officer) has an option, discretion or latitude of A
conducting some kind of preliminary enquiry before registering
the FIR.
110. Learned counsel appearing for the Union of India and
different States have expressed totally divergent views even B
before this Court. This Court also carved out a special
category in the case of medical doctors in the aforementioned
cases of Santosh Kumar (supra) and Dr. Suresh Gupta (supra)
where preliminary enquiry had been postulated before
registering an FIR.
c
111. Some counsel also submitted that the CBI Manual
also envisages some kind of preliminary enquiry before
registering the FIR. The issue which has arisen for
consideration in these cases is of great public importance.
D
112. Jn 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 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. E
113. Consequently, we request 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.
F
R.P. Matters referred to Constitution Bench.
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