REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.68 OF 2008
Lalita Kumari ...Petitioner
Versus
Government of U.P. & Others ...Respondents
WITH
CRIMINAL APPEAL NO.1410 OF 2011
Samshudheen ...Appellant
Versus
State, Represented by Dy. Superintendent of Police
Tamil Nadu ...Respondent
WITH
SLP (CRIMINAL) NO.5200 OF 2009
Baldev Singh Cheema ...Petitioner
Versus
State of Punjab & Others ...Respondents
WITH
SLP (CRIMINAL) NO.5986 OF 2010
Surjit Singh & Another ...Petitioner
Versus
State of Punjab & Others ...Respondents
AND
CONTEMPT PETITION NO. ARISING OUT OF D.26722 of 2008
IN
WRIT PETITION (CRIMINAL) NO.68 OF 2008
Daljit Singh Grewal ...Petitioner
Versus
Ramesh Inder Singh ...Respondent
J U D G M E N T
Dalveer Bhandari, J.
1. We propose to deal with the 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
2
repetition, only the facts of the writ petition of Lalita
Kumari's 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.
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.
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. Aggrieved by the inaction of the
local police, Bhola Kamat made a representation on
3.6.2008 to the Senior Superintendent of Police,
3
Ghaziabad. On the directions of the Superintendent of
Police, Ghaziabad, the police station Loni, Ghaziabad
registered a First Information Report (F.I.R.) No.484
dated 6.6.2008 under Sections 363/366/506/120B 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 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.
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, various States and the
Union Territories have filed comprehensive affidavits.
4
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 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.B. Upadhyay, learned senior advocate
appearing 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.
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
5
the Court and made comprehensive submissions. He
also filed written submissions which were settled by him
and re-settled by the learned 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 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:-
"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, 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
6
be registered. This Court after considering Chapter XII
and more particularly Sections 154 and 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 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 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 intent. In
7
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 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.
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 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
8
disclosed, he has no discretion save and except to
reduce the said 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
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 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 Hiralal Rattanlal etc.etc. v. State
of U.P. and Another etc.etc. 1973(1) SCC 216].
This judgment is referred to and followed in a
recent decision of this Court in B. Premanand
and Others v. Mohan Koikal and Others (2011)
9
4 SCC 266 paras 8 and 9. It is submitted that
the language employed in Section 154 is the
determinative factor of the 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
intention of the legislature which has used a
language of compulsive force. There is nothing
indicative of the contrary in the context
indicating a permissive interpretation of Section
154. It is submitted that the said Section ought
to be 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 to be
construed as statutes [para 11 of three-Judge
1
Bench decision of this court in the case of M/s
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 this Court in the case of Hameed Joharan
(dead) and others v. Abdul Salam (dead) by
Lrs. and Others (2001) 7 SCC 573.
f) The provision of Section 154(1) read in light of
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 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 Chapter IX of the CBI (Crime) Manual, first
published in 1991 and thereafter updated on
1
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.
h) The interpretation of Section 154 cannot be
depended upon a Manual regulating the conduct
of officers of an organization, i.e., CBI.
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 available 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 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 provisions
cannot be imported into the statutory scheme of
Section 154 so as to provide any discretion to a
1
police officer in the matter of registration of an
FIR.
j) 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
ii) if given in writing to have it signed by the
complainant
iii) to maintain record of receipt of information
as regards commission of cognizable
offences
iv) to initiate investigation on receipt of
information as regards commission of
cognizable offence
v) to inform Magistrate forthwith of the factum
of the information received.
14. Reference has also been made to the celebrated
judgment of the Privy Council in the case of Emperor v.
1
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 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 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 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
1
the said judgment that, in truth the provisions as to an
information report (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 the
informant is examined, if it is desired to do so. 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.
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 orally or in writing by an officer
incharge of a police station in respect of commission of a
1
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 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 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 Inder 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 an
investigation under Section 157 thereof. The said case
1
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 bring home the
offence to the offender. The essential part of 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 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 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
1
previous permission of a Magistrate, is
not 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 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."
18. In case of H.N. Rishbud (supra), in the case under
the Prevention of Corruption Act, 1947, it is observed as
under:-
"Investigation 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 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 case and if
necessary to take measures for the
discovery and arrest of the
offender."
1
It is further held :-
"Thus investigation primarily consists
in the 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".
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, (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 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 section 173."
1
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 rendered in case of Ramsinh Bavaji Jadeja v.
State of Gujarat 1994 (2) SCC 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 telephone.
The said case deals with information received on
telephone by an unknown person. In paragraph 10 it is
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, that any telephonic information about
commission of a cognizable offence, if any, irrespective of
the nature and details of such information cannot be
2
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 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 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 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
2
course 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 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 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
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 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."
2
23. It is submitted that in the said judgment what fell
for 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 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 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, Section 2(d) 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
2
committed an offence, but does not
include a police report. Under Section 2(c)
"cognizable offence" means an offence for
which, and "cognizable case" means a
case in which a police officer may in
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 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 offence given to him orally
and every such 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 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 over the local area
within the limits of such station would have
power to inquire into or try under the
provisions of Chapter XIII.
2
(2) No proceeding of a police officer in any
such 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 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 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 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 "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 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) :-
2
"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 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) 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 view of the definition of
"complaint" referred to earlier and 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 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
Madhu Bala' s case:-
2
"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
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. 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-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
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".
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
2
must be given by a person who has personal knowledge
of the incident reported. It is further 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.
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
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 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
the High Court, investigated into the
matter and visited the spot in order to
2
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."
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:-
"11. 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 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."
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).
31. In the context of the statutory provisions, the
learned counsel for the Union of India drew the attention
2
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:-
"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
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 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, 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 this stage it
is also not necessary for him to satisfy
himself about the truthfulness of the
3
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 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 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
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
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 to investigate the case and discover
the true facts, if he can."
3
32. This Court in its decision in the case of Ramesh
Kumari (supra) has observed as under in paragraphs 3,
4 and 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 complaint/representation has been
subsequently examined by the respondent
and found that no genuine case was
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 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 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.
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
3
law has been set at rest by this Court in
State of Haryana v. Bhajan Lal. This
Court after examining the 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 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 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 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 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 offence reported and thereby
violates the statutory duty cast upon him,
3
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 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 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
complaint' and `credible information' are
used. Evidently, the non-qualification of the
word `information' in Section 154(1) unlike
in Section 41(1)(a) and (g) of the Code may
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
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 earlier
Codes will indicate that the legislature had
purposely thought it fit to employ only the
word `information' 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'
3
preferred to an officer in charge of a police
station should be reduced into writing
which 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 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 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 :-
"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 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."
3
34. The views expressed by this Court in paras 31, 32
and 33 as quoted above leave no manner of doubt that
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.
35. In the case of Ramesh Kumari (supra), this Court
has 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) SCC 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 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
3
Union of India, the 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 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 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 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
3
incorporate the details and circumstances advantageous
to the prosecution which may be lacking in the earlier
information. Similarly, if the police is given 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.
39. Mr. Das gave an example that in a bride burning
case, when a person makes a complaint that the
husband and the 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 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
3
make seizure in course of investigation and not during
the enquiry. 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 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 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.
41. It was submitted on behalf of the Union of India and
the State of U.P. that in the Code the Legislature never
3
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 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 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 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
4
Report in 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.
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 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 case is
nothing but a passing observation.
4
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 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 Cr.P.C. it is open to the SHO to hold a
preliminary enquiry to ascertain whether there is prime
facie case of commission of 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,
190 and 202 are an integral part of the statutory scheme
relating to investigation of crimes. These provisions
clearly contemplate that the police officer can exercise
4
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.
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. 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 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
4
of Uttar Pradesh and Others 2008 (2) SCC 409, Nasar
Ali v. State of Uttar Pradesh 1957 SCR 657, Union of
India and Another v. W.N. 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 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 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 made applicable to the people of different categories.
4
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 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
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 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
4
act can ever be a mechanical one. This is the
requirement of rule of law. Reference was made to 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) SCC 615.
50. According to Mr. Naphade, these judgments have
not considered the impact of Article 21 on Section 154 of
Cr.P.C. 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 a
statutory provision irrespective of its reasonableness or
otherwise. In the light of Article 21, provisions of Section
154 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
4
serious consequences for the person named as accused
and for this purpose, the 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.
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.
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 rights under Article
21. This Court has recognized the concept of pre-
violation protection implicit in Article 21. The said
4
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 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 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
of India 2007 (1) SCC 174. The said judgments have
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.
4
53. The non-registration of an FIR does not result in
crime going unnoticed or unpunished. The registration of
an FIR is 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. 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 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 of the responsible police officer to
reach the place of occurrence in his implicit duty and
4
responsibility. This has been held in the case of
Animireddy Venkata Ramana and Others v. Public
Prosecutor, High Court of Andhra Pradesh 2008 (5)
SCC 368.
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.
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 Maneka Gandhi (supra) rested
principally on the words used in the Section de-hors the
other provisions of the Act and also de-hors the impact of
Article 21 of the Constitution on the criminal
5
jurisprudence. In other words, the courts have followed
the test of literal interpretation without considering the
impact of Article 21.
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 proposition that the law which
deprives a person of his personal 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 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.
5
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 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 be left open to
the discretion of the police officer.
59. A proposition that the moment the complaint
discloses 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 is also an
argument of the other extreme. Both must be rejected
and a middle path must be chosen.
5
60. Mr.Naphade mentioned about Maneka Gandhi's
case and observed that the attempt of the Court should
be to expand 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 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 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
5
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 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 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 need of the police officer's discretion of holding a
preliminary inquiry is well illustrated by the judgment of
this Court in the case of Uma Shankar Sitani v.
5
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 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 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.
64. Mr. Naphade submitted that Section 498-A of I.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
5
Gupta and Another v. State of Jharkhand and
Another (2010) 7 SCC 667. In the 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 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 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 [paras 4 and 5) has held that Article 21 requires that
no one shall be deprived of his life and personal liberty
5
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 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
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 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.
5
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 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 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 of
Cr.P.C. must be read together. These provisions
constitute the statutory scheme relating to investigation
of offences and, therefore, no single provision can be read
in isolation. Both, Sections 41 and 154 deal with
cognizable offence. Section 41 empowers the police to
5
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 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 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 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
5
against the accused. If he does not form such an opinion
and still proceeds to record an FIR, he would be guilty 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.
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 powers of recording an
FIR 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 154 (3) and Section 36 are clear indication that
6
in an appropriate case a police officer can either decline
to register the FIR or defer its registration. 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 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
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 by Sessions
Court, then he will commit the case to Sessions under
Section 209.
6
71. The Magistrate can also on receipt of a complaint,
hold an enquiry or direct the police to investigate. In
addition to the 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 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
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 ends with the vital
6
report either under Section 169 or submission of a
charge-sheet under Section 173 of the Code. 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 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 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 investigation, recording of an FIR is a
condition precedent. Section 156 empowers the police to
6
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 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 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 current Kunjukunju and Others v. State of
Kerala 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 observation of
6
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 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 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.
77. The registration of an FIR should be effective and it
can be effective only if further investigation is to be
6
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 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
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 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
discloses the commission of a cognizable
6
offence, the police shall record the same
in accordance with the 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 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 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 it appears to the officer-
in-charge that there does not exist
sufficient ground, he shall not
investigate. This legal framework is a very
vital 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 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
6
officer would then submit a closure report to the
Magistrate. The Magistrate then would 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 that the statutory provisions clearly maintain a
balance between the rights of a complainant and of the
Society to have a wrongdoer being brought to book and
the rights of the accused against baseless allegations.
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 that an innocent
person is not falsely implicated in a criminal case. If
6
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 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.
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 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
6
consequences flowing from such 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 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 751, has observed that when the statute uses
the word "shall" prima facie it is mandatory, but the
Court may ascertain the real intention of the legislature
carefully attending to the whole scope of the statute.
87. In the case of State of Madhya Pradesh v. M/s
Azad Bharat Finance Co. and Another AIR 1967 SC
276 it has been held that the word "shall" does not
always mean that the provision is obligatory or
7
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 been
held 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 contained 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 nomenclature, 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 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".
7
89. In P.T. Rajan (supra), this Court has discussed the
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 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 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 put the provisions of Section 154
Cr.P.C. in any straight jacket formula. However, some
guidelines can be framed as regards registration or non-
7
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
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 FIR, and take a decision after
preliminary enquiry.
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.
3. The police officer may also defer recording of an
FIR if he feels that the complainant is acting
under a mistaken belief.
7
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.
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
registration of an FIR should be deferred. He suggested
the 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
decides to register an FIR, the entry in
Station/General Diary should be considered as the
FIR.
7
2. He should immediately report the matter to the
superior police officer and convey him his reasons
or apprehensions and take his permission for
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 FIR 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 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.
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
7
requirement of Article 21 is that the procedure should be
just and fair. If, therefore, the police 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.
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 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 totally divergent judicial opinions. We deem it
7
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 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.O. has no option but to register an F.I.R. under
Section 154 Cr.P.C..
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 Cr.P.C., it is
open to the SHO to hold a preliminary enquiry to
7
ascertain whether 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
cases.
99. In Bhajan Lal (supra), this Court observed as
under:-
"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 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 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.
7
101. In Parkash Singh Badal (supra), this Court
observed as under:-
"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 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 :-
"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."
103. There is another set of cases where this Court
has taken contrary view.
104. In Rajinder Singh Katoch (supra), this Court
observed as under:-
"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
7
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."
105. In Bhagwant Kishore Joshi (supra),
Mudholkar, J. in his concurring judgment has observed
as under:-
"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."
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"."
107. In Sevi and Another (supra), this Court
observed as under:-
"If he was not satisfied with the
information given by PW 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."
8
108. It is quite evident from the ratio laid down in
the 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.
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 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.
110. Learned counsel appearing for the Union of
India and different States have expressed totally
divergent views even before this Court. This Court also
8
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.
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.
112. 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
agencies and the citizens.
113. Consequently, we request Hon'ble the Chief
Justice to refer these matters to a Constitution Bench of
8
at least five Judges of this Court for an authoritative
judgment.
...................................J.
(Dalveer Bhandari)
..................................J.
(T.S. Thakur)
...................................J.
(Dipak Misra)
New Delhi;
February 27, 2012
