[Case Brief] Lalita Kumari v/s Government of UP & others, 2013

Lalita Kumari v/s Govt. of UP & Others, 2013, was delivered by a five-judge bench of the Honourable Apex Court on 12th November 2013. In the present appeal, before the Supreme Court, the appellant Lalita Kumari has appealed against the Government of UP through a writ petition under Article 32 of Indian Constitution.

Brief Facts and Procedural History

The present writ petition has been filed by Lalita Kumari through her father for the issuance of a writ of Habeas Corpus or directions of like nature against the respondents herein for the protection of his daughter who has been kidnapped. The grievance of the petitioner is that on 11.05.2008, a written report was submitted by the petitioner before the officer-in-charge of the police station but the said officials did not take any action. Thereafter, when the Superintendent of Police was approached an FIR was registered. But no course has been taken by the police authorities to apprehend the accused or recover the kidnapped daughter.

Issue before the Court

Whether a police officer is bound to register an FIR upon receiving any information relating to the commission of a cognizable offence under section 154 of the Code of Criminal Procedure, 1973 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?

Ratio of the Court (As authored by Chief Justice P. Sathasivam)

The FIR is a pertinent document in the criminal law procedure of our country and its main object from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigation authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book the guilty.

Placing reliance on section 139 of Code of Criminal Procedure, 1861, and Section 154 of Code of Criminal Procedure, 1882, it is clear that the legislative intent behind both the provisions is to ensure compulsory registration of FIR in case of a cognizable offence without conducting a preliminary inquiry. Reading section 154 with section 156 of the Criminal Code of 1898, it becomes clear that the starting point of an investigation by the police officer is recording the first information regarding commission of cognizable offence into writing and into the book separately prescribed by the Provincial Government.

The condition which is a sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. The provision of section 154 of the code is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing a cognizable offence. This mandatory provision of section 154 can be noticed by the use of the word ‘shall’ in the section.

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 the Code. 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.

Further, the registration of FIR is to be done in a book called FIR book or FIR Register. In addition, the gist of FIR or the substance of the FIR may also be mentioned simultaneously in the General Diary as mandated in the respective Police Act or Rules, as the case may be, under the relevant State Provisions. If there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act 1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the provisions of section 154 of the code will prevail and the FIR will be recorded in the FIR book as mandated by section 154 of the code.

Further, according to the provisions of section 154(1) of the code, reasonableness or credibility of the said information is not a condition precedent for the registration of a case.

Every cognizable offence must be investigated promptly in accordance with the law and all information provided under section 154 of the code about the commission of cognizable offence must be registered as an FIR so as to initiate an offence. The requirement of section 154 of the Code is only that the report must disclose the commission of a cognizable offence and that is sufficient to set the investigation machinery into action. Therefore conducting an investigation into an offence after the registration of FIR under Section 154 of the Code is the procedure established by law and thus in conformity with Article 21 of the Constitution. Accordingly, 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 the law.

The advantage of compulsory registration of FIR is not only to ensure transparency in the criminal justice delivery system but also to ensure judicial oversight. Section 157(1) deploys the word forthwith. Thus, any information received under section 154(1) or otherwise has to be duly informed in the form of a report to the magistrate. Moreover, there are various other compelling reasons for the compulsory registration of FIR.

While registration of FIR is compulsory, the arrest of the accused immediately on registration of FIR is not at all mandatory. Registration of FIR and arrest of a person are different concepts under the law and there are several safeguards available against arrest.

Although, section 154 of the code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet there are few exceptions where preliminary inquiry may be required first before registering an FIR. Allegations relating to medical negligence on part of the doctor, corrupt practice on part of public servant, and others are considered as an exception to the general rule.

Decision Held

The following directions were issued by the Court-

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

(2) 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

(3) 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.

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

(5) 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.

(6) 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 categories 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 the delay.

(7) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

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

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