-By Saisha Singh
Earlier this year the Delhi High Court, in the process of hearing a case about registering FIRs against BJP Leaders, who have delivered alleged hate speeches, which are being said as being instrumental in inciting violence in NCR, was seen reminding the police to follow guidelines as established by the case of Lalita Kumari v. Government of UP and Ors.. The said judgment, as delivered in 2013, lays down certain guidelines which are to be followed mandatorily by the police when someone seeks to register a complaint.
The said case, sought to answer two questions, (i) Whether in case FIR is not registered immediately, then does it leave scope for manipulation by police, given that they can act on their discretion? and (ii) Whether in case complaint/information revealed does not clearly disclose commission of a cognizable offence, then whether FIR needs to be filed immediately and compulsorily? It is pertinent to note, that in case of the former, the rights of the complainant/victim stand endangered, and in case of the latter, the rights of the accused stand likewise.
With the two questions at hand, there came a series of deliberations and analyses of different judgments over the years. Some of the verdicts which were analyzed are State of Haryana v. Bhajan Lal, Ramesh Kumar v. State NCT of Delhi, Parkash Singh Badal v. State of Punjab, among various others. In light of the same, the following guidelines were formulated:
- Registering the FIR is mandatory if information disclosed indicates the commission of cognizable offence.
- If the said information revealed does not disclose commission of a cognizable offence, but indicates the need for an inquiry, preliminary inquiry may be conducted, for the sole purpose of ascertaining the commission of a cognizable offence.
- In case the preliminary inquiry discloses that a cognizable offence has been committed then an FIR must be registered. In case the preliminary inquiry ends up closing the complaint, a copy of the entry of this closure must be supplied to the first informant forthwith and not later than a week. The same must lay out reasons in brief for non-proceeding of the complaint.
- The police officer cannot avoid his duty of registering the offence if a cognizable offence is disclosed. With regard to the erring officers who do not register the FIR on the information for commission of cognizable offence as received, action must be taken against them.
- 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 commission of cognizable offence.
- With regard to the type of cases in which preliminary inquiry is to be conducted will depend upon facts and circumstances of each, but an illustrative category of cases where preliminary inquiry may be done include:
- Cases where abnormal delay/laches in initiating criminal prosecution exist.
- Commercial offences
- Corruption cases
- Matrimonial disputes/family disputes
- Medical negligence cases
- In this process, ensuring and protecting the rights of the accused and complainant, the preliminary inquiry needs to be time bound, and not exceed 15 days, and in exceptional matters, with adequate reasons, the period shall be six weeks. Reasons and cause of delay must be reflected in the General Diary entry.
- All information related to cognizable offences, regardless of the same resulting in registration of FIR or leading to inquiry, must be mandatorily reflected in the General Diary, in addition to the decision whether preliminary inquiry needs to be conducted or not.
In addition to the guidelines, another important facet of this judgement, is that the use of the word ‘shall’ in Section 154(1) of the Code of Criminal Procedure, leaves no room for discretion of the police in registration of the FIR. Further, the inclusion of the word ‘information’, that quietly leaves aside the words ‘reasonable’ and ‘credible’, seeks to create an obligation on the police, that mere information alleging commission of cognizable offence may be recorded in the first place, and its veracity may be investigated at a later stage.
The aforementioned guidelines and facets come into existence, as they help forge a middle ground for the two extreme positions, i.e. effect of immediate non-registration of FIR on the victim, and effect of immediate registration of FIR on the accused (even when it is not clear that a cognizable offence may have been committed). While they have been often used as a point of reference and cited at large, they can also be said to be marred by lapses, which has led to their use not being done in a proper manner.
Failure of the court to define preliminary inquiry
The Lalita Kumari judgment has become a significant point of citation across various cases over the years. But at the same time, there are some points which remain unclear. The first one being, that the said judgment as enunciated the guidelines, failed to explain the exact meaning or lay down a definition of a preliminary inquiry. Further, the Code of Criminal Procedure as well makes use of the terms, ‘inquiry’ and ‘investigation’, while very conveniently excluding preliminary inquiry from its purview. In case of the former, Sec. 2(g) defines inquiry as every inquiry, other than a trial, as conducted under CrPC by a Magistrate or the Court. In case of the latter, Sec. 2(h) of the Code defines investigation to include all the proceedings under this Code, conducted by a police officer or any person other than a Magistrate, for the collection of evidence. In light of the adversarial system of legal procedure in India, preliminary inquiry cannot be included in Sec. 2(g), given that the inquiry herein is done by the Court itself. Further, preliminary inquiry cannot also form a part of Sec. 2(h) given that investigation is the stage followed post the registration of FIR. Therefore, while preliminary inquiry could not have been included in either categories, the Court also failed to classify preliminary inquiry as a category in itself. The lack of acknowledgment of Preliminary Inquiry as a separate category has also led to there being no definition for the same.
The need for a separate definition for preliminary inquiry arises from the fact that in different matters, FIR may become a potent tool that may be used to wrong a person, or sometimes, an efficacious alternate remedy may be available to the complainant(s) under Civil Law, but the same had not been explored and they may directly seek to register an FIR. Under both the circumstances, it becomes necessary that a preliminary inquiry is conducted, given that registration of FIR brings with itself huge ramifications in the nature of social stigma, loss of livelihood, among other things that may significantly impact the person against whom FIR may be registered, and may also lead to non-exploration of a civil remedy.
While the process of initiating and conducting a preliminary inquiry against any offences conducted by the public servant does exist (as part of the Prevention of Corruption Act and CBI Crime Manual), no central act has sought to define this concept for its application to check on incomplete disclosure of information regarding commission of a cognizable offence, as may be revealed by the victim or complainant.
Failure of the court to lay down the process of preliminary inquiry
Secondly, the said judgment fails to lay down the process that is required to be followed whilst conducting the preliminary inquiry itself. While it has been recognized that different states’ police rules call for an inquiry before registration of FIR, they do not exactly lay down the process of conducting the preliminary inquiry, which allows the police officer to exercise his discretion. A basic example of how preliminary inquiry may be helpful, would be with reference to medical negligence cases. Given that such cases question the credibility of the doctors, preliminary inquiry may involve a basic set of questioning with both the parties to be done by the police, and aid them in exploring any efficacious alternative remedy, apart from penal provisions, given that criminal processes subject them to serious harassment and embarrassment. Not only this, but it may significantly aid in lesser cases of such nature to go on trial.
Further, it is also pertinent herein, that when the Court says, FIR may be registered when information of commission of cognizable offence is revealed, the said statement excludes the words ‘reasonable’ and ‘credible’ from being used as part of Sec. 156. This makes it difficult to understand, that on what basis and using what mechanisms, should the police identify whether a cognizable offence has been committed. Further, in the judgment of State of Telangana v. Sri. Managipet [Cr. App. 1662 of 2019] as decided by the Supreme Court in 2019, the Hon’ble Court makes use of the term ‘relevant information’ for registration of FIR. The aforesaid judgment does not specify the information that could be counted in as ‘relevant’ for the registration of FIR. This amplifies doubts regarding what kind of information may be collected as part of preliminary inquiry.
While it may also sound reasonable that information disclosing commission of cognizable offence is sufficient for filing an FIR, registering the same may prove to be a big blunder that has the possibility of potentially ruining the life of the person named in the FIR. This is in light of the fact that in case the person would like to avail services or jobs offered by the Government, she/he would be required to enter the details of criminal cases and FIRs registered. The same may become a ground for refusal of opportunities in the like of visa or passport, or jobs. In addition, given the burden of cases that lies on different Courts in India, preliminary inquiry, albeit for certain category of cases may prove to be useful in reducing the burden on the criminal justice system.
The not-so-strict separation of arrest and FIR
Thirdly, the said judgment opines that arrest of an accused person under Sec. 41 CrPC, and registration of FIR under Sec. 154 of the same Code, are entirely different things, and that it is an imaginary fear to state that merely because an FIR is registered, the arrest of the accused is not compulsory therein. The verdict very conveniently fails to recognize that problems such as social stigma, psychological anxiety, and probable economic impairment till proven innocent are some aspects to which the person named in the FIR may be subjected to, followed by processes such as arrest further. Not only this, the judgment fails to consider that in case of cognizable offences, it is difficult to treat FIR and arrest as separate components, given that the police has an authority to arrest without a warrant.
The aspect of detention before trial is covered in the case of Moti Ram v. State of MP, wherein Justice Krishna Iyer has emphasized, that there are serious consequences to pre-trial detention, which include psychological and physical deprivation of life that the accused may have to undergo even though the criminal justice system presumes him to be innocent, which is worse than the status awarded to convicted person.
Further, as arrests find themselves to be the next step, on registration of FIR regarding commission of a cognizable offence, prisons find themselves to be occupied excessively. Herein, the number of undertrial prisoners forms about seventy percent of the total occupancy of a prison, often leading to overcrowding of them. As per the statistics released by National Crime Records Bureau, up until 2019, undertrials have been confined for a period ranging from 6 months to 5 years, which reflects the serious impact a mere registration of FIR (without preliminary inquiry) may bring with itself.
The Lalita Kumari judgment and guidelines associated therein stand at an important pedestal, given that they open the avenue for preliminary inquiry, which may be instrumental in screening frivolous and motivated complaints that may have the chance of turning into malicious prosecution cases, and place effects as mentioned above. But at the same time, what goes missing is that while there may be an illustrative categorization of matters, where such inquiry may be done, use of the word ‘may’ leaves the discretion largely in the hands of the inspector. Further, given that there exists no clarity on the process that may be adopted for conducting an inquiry of such a nature, then despite the option of a preliminary inquiry being available, the same may not be conducted due to lack of procedures prescribed for the same. Therefore, the Executive must step in to clarify the kinds of matters wherein preliminary inquiry may serve as an important tool, what is the process that may be adopted for the same, and integrate other legislations in tune with the concept of preliminary inquiry. To conclude, introduction and integration of preliminary inquiry comes with an important purpose, to create and maintain a balance between societal interests and individual liberty.
[The author works as a Legal Researcher for the Rajasthan High Court, Jaipur.]