ABOUT THE AUTHOR
Author of this case is Hridhya Pradeep VP, a triple major graduate in literature, Communication and Journalism. Currently doing 4th semester Three year unitary LLB student at Govt Law College Trivandrum. Prior to joining as a law student , she is worked as a journalist.
INTRODUCTION
The criminal justice system is an essential part of any country because it prevents the occurrence of crimes, punishes the criminals, rehabilitates them and provides compensation to the aggrieved and to maintain law and order in society.The process for administering the criminal justice system in India has been divided into 3 stages, i.e., investigation, inquiry and trial. First Information Report (FIR) is a very important document in the first stage as it sets the process of criminal justice in motion. The term FIR exactly is not defined in any code, but it refers to the oral information on the conduct of a cognizable offence that is provided to the police at the earliest possible moment. An FIR is an essential document for both the parties and it serves as the case’s initial foundation.
There are three important elements of an FIR:
o The information must relate to the commission of a cognizable offence,
o It should be given in writing or orally to the head of the police station,
o It must be written down and signed by the informant, and its key points should be
recorded in a daily diary.
What is a cognizable offence?
Section 2 of CrPC defines a cognizable offence and is one in which a police officer can make an arrest without the need for warrant or the consent or order of the magistrate in line with the first schedule or any other statute currently in effect. According to section 154 of CrPC, in order to initiate an investigation into a cognizable offence, a police officer must first receive the FIR pertaining to the cognizable offences which can be acquired without magistrate’s authorization and enter it in the general diary. In the landmark case in the history of criminal justice system, Lalita Kumari vs. Govt. of U.P. & Ors.(2013 SCC), the Apex Court has given certain guidelines in lodging FIR.
FACTS OF THE CASE
In 2008, the petitioner Bhola Kamat’s daughter Lalita Kumari, a minor was kidnapped by some local goons. Petitioner filed a written missing report to the officer in charge of the concerned police station. But, he did not register the FIR and later, he moved to the superintendent of police. FIR was lodged against some private respondents who were the chief suspects but still there wasn’t an attempt to neither to rescue the girl nor to apprehend the accused. According to the allegation of Bhola Kamat, he was asked to pay money for initiating investigation and to 3 arrest the accused persons. Hence, the petitioner filed a writ petition of Habeus Corpus under Article 32 of the Constitution before this Court. The 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.
ISSUES RAISED
Whether a police officer is bound to register a 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 inorder to test the veracity of such information before registering the same?
PETIOTIONER’S ARGUMENTS
The counsel for petitioner submitted that it is imperative from the side of officer in charge that whenever an occurrence of cognizable offence is informed, the police officials are bound to register the same and in case it is not done, directions to register the same is to be given. Section 156(3) of the Code contemplates the registration before investigation into the case. The use of the word “shall” in section 154 is indicative of the mandatory nature of the registration of FIR. Also, the word information in section 154(1) is not qualified as ‘reasonable complaint’ and ‘credible information’ as it is in section 41(1)(a) or (g) of the Code i.e., ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. The concept of preliminary investigation is alien to the criminal law regime except in Prevention of Corruption Act and in respect of the offence under which was to be investigated by the Central Bureau of Investigation (CBI).
RESPONDENT’S ARGUMENTS
The argument from the side of counsel for the respondent in response to petitioner’s contentions were that the registration of an FIR being an administrative act requires the application of mind, scrutiny and verification of the facts. An administrative act is to be authentic. Further, the word “shall” used in the statute does not always mean absence of any discretion in the matter. For the receipt and recording of information, the report is not a condition precedent to the setting in motion of a criminal investigation. An illustration was given of preliminary investigation in case of medical negligence. Non-registration of an FIR does not result in crime going unnoticed or unpunished. In fake cases, the FIR would become futile and the act would become arbitrary and unreasonable in case of the accused. The provisions of Article 14 which are an anti-thesis of arbitrariness and the Articles 19 and 21 which offer right to life and liberty require the police officer to see that an innocent person is not exposed to baseless allegations ,but, in appropriate cases he can hold preliminary enquiry. 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.
JUDGMENT
On hearing both the contentions, the Supreme Court issued the following Guidelines regarding the registration of FIR:
(i) 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.
(ii) If the information received does not disclose a cognizable offence, but indicates the necessity of 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:
a. Matrimonial disputes/ family disputes
b. Commercial offences
c. Medical negligence cases
d. Corruption cases
e. 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 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. But, this was modified in March 2014, increasing the time limit to 15 days in normal cases and 6 weeks in exceptional cases.
(viii) 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.
CONCLUSION
Thus, Lalita Kumari case judgement is considered as a precedent in the criminal law as it makes lodging FIR mandatory in cognizable offences stating that reasonableness or credibility of the received information is not a condition precedent for the registration of case. FIR is an integral part of investigation procedure in criminal justice system. Our criminal justice system relies on the principle of presumption of innocence, a legal principle that every person accused of any crime is considered innocent until proven guilty. A person when accused and entered into an FIR not only suffers from loss of reputation but also mental tension and his personal liberty is seriously impaired. But, from the side of victim, a speedy and apt justice is to be served on a reasonable basis. There is a potential abuse in lodging of FIR through framing fake and false cases to tarnish a person’s reputation owing to personal rivalry. So, the non-mandatory nature of registration of FIR creates legal uncertainty and in the absence of appropriate guidelines; it is against the constitutional norm and creates procedural hardship for the needy people. Making registration non mandatory, in effect, creates an arbitrariness which is against the rule of law, purpose of criminal justice system and violates the right to fair trial. So, what is to brought in is an efficient, accountable and reasonably transparent system that recognises and balance between the rights of the accused and the victim.
