Judges: P. Sathasivam, C.J.I., B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi and S.A. Bobde, JJ.

Facts:

This matter was referred to a Constitution Bench of the Supreme Court by a Bench of three-Judges in Lalita Kumari v. Government of Uttar Pradesh and Ors. MANU/SC/0157/2012.

A writ petition was filed by one Lalita Kumari (minor) through her father, for the issuance of a writ of Habeas Corpus against the Respondents for the protection of his minor daughter who was kidnapped. The grievance in the said writ petition is that, a written report was submitted by the Petitioner before the officer in-charge of the police station concerned who did not take any action on the same. Thereafter, when the Superintendent of Police was moved, an FIR was registered, but even thereafter, steps were not taken either for apprehending the accused or for the recovery of the minor girl child.

A two-Judge Bench of Supreme Court in that writ petition, after noticing the disparity in registration of FIRs by police officers on case to case basis across the country, directed Central Government to take immediate steps.

When the matter was heard again, several conflicting decisions were brought on record and hence the matter was referred to a Constitution Bench to decide the nature and scope of Section 154 of CrPC.

Issues:

(i) Whether "a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of CrPC or the police officer has the power to conduct a "preliminary inquiry" in order to test the veracity of such information before registering the same?

Laws:

Code of Criminal Procedure, 1973 (CrPC) - Section 154 - Police is duty bound to register a cognizable offence when reported by any person.

Code of Criminal Procedure, 1973 (CrPC) - Section 156 - Deals with police officer's power to investigate cognizable case

Code of Criminal Procedure, 1973 (CrPC) - Section 157 - Contemplates procedure for investigation

Contentions:

Petitioners

(i) Section 154(1) is mandatory as the use of the word 'shall' is indicative of the statutory intent of the legislature. He also contended that there is no discretion left to the police officer except to register an FIR.

(ii) In all the cases where information is received under Section 154 of the Code, it is mandatory for the police to forthwith enter the same into the register maintained for the said purpose, if the same relates to commission of a cognizable offence.

(iii) Police authorities have no discretion or authority, whatsoever, to ascertain the veracity of such information before deciding to register it.

Respondents

(i) An investigating officer, on receiving information of commission of a cognizable offence under Section 154 of CrPC, has power to conduct preliminary inquiry before registration of FIR.

(ii) Throughout the country, in matrimonial, commercial, medical negligence and corruption related offences, there exist provisions for conducting an inquiry or preliminary inquiry by the police, without/before registering an FIR under Section 154 of CrPC.

(iii) Various police rules prevailing in the States of Punjab, Rajasthan, U.P., Madhya Pradesh, Kolkata, Bombay, etc., provides for conducting an inquiry before registering an FIR.

Analysis:

Section 154 of CrPC - What was the legislative intent

(i) Language employed in Section 154 of CrPC is the determinative factor of the legislative intent. A plain reading of Section 154(1) provides that any information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station shall be reduced into writing by him or under his direction. There is no ambiguity in the language of Section 154(1) of the CrPC.

(ii) The condition that is sine qua non for recording an FIR under Section 154 is that there must be information and that information must disclose a cognizable offence.

(iii) If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.

(iv) Provision of Section 154 of CrPC is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing a cognizable offence.

Section 154 of CrPC - Implications of the word 'shall'

(i) The use of the word "shall" in Section 154(1) of the CrPC clearly shows the legislative intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence.

(ii) Object of using the word "shall" in the context of Section 154(1) is to ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in accordance with the provisions of law.

(iii) For "cognizable offences", a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of CrPC.

(iv) If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality.

(v) The word "shall" used in Section 154(1) needs to be given its ordinary meaning of being of "mandatory" character.

Entry in 'Book'/'Diary' - Whether has effect of registration of FIR

(i) General Diary is a record of all important transactions/events taking place in a police station, including departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order duties, visit of senior officers etc.

(ii) It is in this context that gist or substance of each FIR being registered in the police station is also mentioned in the General Diary since registration of FIR also happens to be a very important event in the police station.

(iii) Since General Diary is a record that is maintained chronologically on day-today basis (on each day, starting with new number 1), the General Diary entry reference is also mentioned simultaneously in the FIR Book, while FIR number is mentioned in the General Diary entry since both of these are prepared simultaneously.

(iv) FIR Book is maintained with its number given on an annual basis. This means that each FIR has a unique annual number given to it. Due to this reason, it is possible to keep a strict control and track over the registration of FIRs by the supervisory police officers and by the courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the concerned Judicial Magistrate.

(v) On the other hand, General Diary contains a huge number of other details of the proceedings of each day. Copy of General Diary is not sent to the Judicial Magistrate having jurisdiction over the police station, though its copy is sent to a superior police officer. Thus, it is not possible to keep strict control of each and every FIR recorded in the General Diary by superior police officers and/or the court in view of enormous amount of other details mentioned therein and the numbers changing every day.

(vi) The signature of the complainant is obtained in the FIR Book as and when the complaint is given to the police station. On the other hand, there is no such requirement of obtaining signature of the complainant in the general diary.

(vii) This does not fit in with the suggestion that what is recorded in General Diary should be considered to be the fulfillment/compliance of the requirement of Section 154 of registration of FIR.

(viii) Thus, FIR is to be recorded in the FIR Book, as mandated under Section 154 of CrPC. It is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as FIR.

Word 'Information' in Section 154 of CrPC - Whether its reasonableness or creditability is a condition precedent for the registration of FIR

(i) Police officer concerned is duty-bound to register the case on receiving 'information' disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case.

(ii) Mandate of Section 154 of CrPC is that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence, the police officer concerned cannot embark upon an inquiry 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 relevant or credible.

Preliminary Inquiry - Whether can be done by police officer before registering FIR

(i) Conducting an investigation into an offence after registration of FIR under Section 154 of CrPC is the "procedure established by law" and, thus, is in conformity with Article 21 of the Constitution.

(ii) Even the right of the accused under Article 21 of the Constitution is protected if the FIR is registered first and then the investigation is conducted in accordance with the provisions of law.

Significance and Compelling reasons for registration of FIR at the earliest

(i) Object sought to be achieved by registering the earliest information as FIR is inter alia twofold -

(ii) One, that the criminal process is set into motion and is well documented from the very start; and,

(iii) Second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment etc., later.

Mandate of compulsory registration of FIR - Whether in contravention of Article 21 of the Constitution

(i) Registration of FIR under Section 154 of CrPC and arrest of an accused person under Section 41 are two entirely different things. It is the imaginary fear that "merely because FIR has been registered, it would require arrest of the accused and thereby leading to loss of his reputation".

(ii) The remedy lies in strictly enforcing the safeguards available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of FIR when the information discloses commission of a cognizable offence.

(iii) There are already sufficient safeguards provided in the Code which duly protect the liberty of an individual in case of registration of false FIR.

(iv) At the same time, Section 154 was drafted keeping in mind the interest of the victim and the society. Therefore, mandatory registration of FIRs under Section 154 of CrPC will not be in contravention of Article 21 of the Constitution.

Compulsory registration of FIR - Whether there is likelihood of misuse of provision

(i) While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory.

(ii) In fact, registration of FIR and arrest of an accused person are two entirely different concepts under the law. There are several safeguards available against arrest. An accused person also has a right to apply for 'anticipatory bail' under Section 438 of CrPC if the conditions mentioned therein are satisfied.

(iii) So also, arrest cannot be made by police in a routine manner. There must be some reasonable justification in the opinion of the officer affecting the arrest that such arrest is necessary and justified. On the other hand, if a police officer misuses his power of arrest, he can be tried and punished under Section 166 of CrPC.

(iv) Mandatory registration of FIRs under Section 154 of CrPC will not be in contravention of Article 21 of the Constitution.

Section 154 of CrPC - Whether there exists any exception

(i) Under Section 154 of CrPC, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory.

(ii) However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed.

(iii) Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc.

Conclusions:

(i) Registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

1. Matrimonial disputes/family disputes
2. Commercial offences
3. Medical negligence cases
4. Corruption cases
5. Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 15 days generally and in exceptional cases, by giving adequate reasons, six weeks time is provided. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Important Precedents:

(i) Lalita Kumari v. Government of Uttar Pradesh and Ors. MANU/SC/0157/2012

(ii) State of Haryana v. Bhajan Lal MANU/SC/0115/1992

(iii) Parkash Singh Badal v. State of Punjab MANU/SC/5415/2006