Lalita Kumari, Preliminary Inquiries, and Registration of FIR - Part I

The registration of a First Information Report (FIR) under Section 154 of the Criminal Procedure Code, 1973 [Cr.P.C.] is the commonest way for the Indian criminal process to get kickstarted. It comes as no surprise to learn that the FIR has thrown up a fair share of interpretive questions that have been judicially resolved over the years. The most recent of these judicial engagements came with a Constitution Bench of the Supreme Court considering whether it is mandatory to register an FIR, in Lalita Kumari v. State of Uttar Pradesh [(2014) 2 SCC 1, clarified vide Order dated 05.03.2014]. This two-part post first surveys the statutory history of Section 154 Cr.P.C., and then moves to engage with the Constitution Bench decision.

The Statutory History of the FIR

The current Cr.P.C. of 1973 was the product of intensive consultation and replaced the 1898 Code. This, in turn, was preceded by the codes of 1882, 1872, and 1861. It is worthwhile to see how the idea of providing information to the police develops through these statutes, particularly the jump from 1861 to 1882, where the relevant provision was also numbered Section 154. Along with this provision, I've also extracted the provision detailing the ordinary investigative steps to be taken by police officers when dealing with 'cognizable offences' [Section 2(c) Cr.P.C. 1973, also see here).   

1861 Code

Section 135: Upon complaint or information being preferred to an Officer in charge of a Police station of the commission within the limits of such Station of any of the offences specified in Column 3 of the Schedule annexed to this Act, as offences for which Police Officers may arrest without warrant he shall send immediate intimation to the Magistrate having jurisdiction, and shall proceed in person, or despite on of his subordinate officers to proceed to the spot to enquire into the facts and circumstances of the case, and to take such measures as may be necessary for the discovery and apprehension of the offender. ...

Section 139: Every complaint or information preferred to an Officer in charge of a Police Station, shall be reduced into writing and the substance thereof shall be entered in a diary to be kept by such Officer, in such form as shall be prescribed by the Local Government.

1872 Code

Section 112: Every complaint preferred to an officer in charge of a Police-station shall be reduced into writing, and shall be signed, sealed, or marked by the person making it; and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Local Government.

Section 114: If, from information or otherwise, an officer in charge of a Police-station has reason to suspect the commission, within his local jurisdiction, of an offence cognizable by the Police, he shall send immediate intimation to the Magistrate having jurisdiction, and shall proceed in person, or despite on of his subordinate officers to proceed to the spot to enquire into the facts and circumstances of the case, and to take such measures as may be necessary for the discovery and apprehension of the offender. ...

1882 Code

Section 154: Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a Police-station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, 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 Local Government may prescribe in this behalf.

Section 157: If, from information or otherwise, an officer in charge of a Police-station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers to proceed to enquire into the facts and circumstances of the case, and to take such measures as may be necessary for the discovery and apprehension of the offender. ...

Lessons Through History - The Perspectives Analysis
These extracts offer some valuable insight. The provision detailing the powers of the police and what can and should be done when there is information of a cognizable offence, has remained nearly constant for over 150 years (Sections 135, 114, and 157). Compare this with how the provision on the information and complaint develops from 1861 to 1882, seemingly addressing concerns that the complaint is not genuine, by adding requirements to sign the complaint itself. Importantly, also note that there have historically been provisions that state a police officer may choose not to investigate if after receiving the information or complaint it appears that there is no sufficient grounds for entering on an investigation [Sections 136-137 Cr.P.C. 1861, Sections 116-117 Cr.P.C. 1872, and Section 157 proviso Cr.P.C. 1882]

What is more germane to this post is the intrinsic separation of perspective that these two provisions have historically displayed. Let me explain this using the 1872 formulation, which I think explains this most lucidly. Section 112 therein tells us that persons can prefer a complaint which is reduced into writing, and then we have Sections 113 and 114. If the police thinks it is a non-cognizable offence then a separate entry is made in the station diary and the complainant is sent to the magistrate [This provision was altogether absent in the 1861 Code]. Then Section 114 states the police officer "from information or otherwise ... has reason to suspect the commission within his local jurisdiction of an offence cognizable by the police" he shall either proceed to take action or decide not to. I argue that filing the complaint reflects the perspective of the complainant, and only afterwards does the viewpoint of the police comes into play to decide whether the information disclosed a cognizable offence or not. This, arguably, then indicates support for the view that the filing of complaints does not invoke the police viewpoint, which only comes in later.

The neat division that I draw is a historical relic though, because of Section 154 which came in 1882. From when it was introduced till the current version in the Cr.P.C. 1973, Section 154 has begun with the words "every information relating to the commission of a cognizable offence". Compare this to the earlier provisions - Section 139 in Cr.P.C. 1861 and Section 112 in Cr.P.C. 1872 - when the information or complaint filed with the police was not given any such description. This disturbs the flow that I drew earlier, that a complaint is filed following which the police decides whether it discloses a cognizable or non-cognizable offence. It, thus, raises the question which lay at the heart of the dispute that the Constitution Bench grappled with in Lalita Kumari: who decides whether the information in Section 154 relates to the commission of a cognizable offence?