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.

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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

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