Lalita Kumari V/s.Government of U.P. & Others CRIMINAL APPEAL NO.1410 OF 2011 (27-02-12)

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





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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,





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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.




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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





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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




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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





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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





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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