Registration of FIR and the 'necessity' test for Section 156(3) CrPC / 175(3) BNSS

A judgment delivered on 16.01.2025 by a Division Bench of the Supreme Court in Om Prakash Ambadkar [2025 IINSC 139] has garnered attention as it appears to be the first judgment to cursorily look at the set of provisions under the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] dealing with powers of courts to direct registration of First Information Reports [FIR].

For the uninitiated, the FIR is the genesis of police investigations in India. It is a formal document created at the start of a case, which is supported to reflect the 'first information' of the commission of a crime that is received by police. Not all crime, mind you, but 'cognizable' crime — that category of crimes which the law empowers the police to start investigating without need of any prior judicial permission. For a list of such crimes, please turn to the Schedules in the Criminal Procedure Code 1973 [Cr.P.C.] or BNSS.

In the silly belief that legal procedures are automatons which just automatically spring into life when the need arises, we think that commission of a crime will automatically result in registration of the FIR. Much like every other legal procedure, registration of an FIR is also a site of exercising power. What amplifies this dynamic is the seismic significance the FIR can have on the life of a person arraigned as an accused in the document. 

For starters, police now has the power to arrest this person. Since many cognizable crimes are also non-bailable, arrest may be accompanied by prolonged detention. Then there are the collateral consequences, such as difficulties in applying for, let alone getting, government jobs or identification. In other words, having an FIR registered against a person can dramatically alter their life for the worse, which places the police officer in a highly sought-after position as the official who wields the power to cause such a transformative change for the worse.    

This is just one perspective. There is the other, equally important perspective, of how the registration of an FIR alters the life of the police officials as well. There is a mountain of work which follows. There are far too few police officials and far too many cases. Adding one more mountain to your existing range is not an enviable choice. Many disputes genuinely do not require the full weight of the state to be brought for the purpose of finding a resolution, which is what a lot of investigations can reduce themselves to anyway. All in all, registration of an FIR is far from an automatic process. 

The problem, however, is that the law on paper refuses to recognise this lived reality. A key contributor to this problem has been the Janus-faced judgment of a Constitution Bench of the Supreme Court in Lalita Kumari (2013) (discussed on the Blog on multiple occasions). This precise issue — whether an FIR must be registered whenever police receive information of a cognizable crime, or do police officials have some discretion in the matter — was heard by the Court, and it gave a lengthy and horribly equivocal judgment. So much so that today, lawyers who argue for mandatory registration of FIRs as well as against mandatory registration of FIRs both turn to Lalita Kumari in support of their positions!  

This schism causes downstream effects. Law recognises that failure to register FIRs can cause prejudice to a victim, and so we had Section 156(3) CrPC, and now Section 175(3) BNSS, which confer powers upon magistrates to direct registration of FIR if the police has failed to act. If the law on paper says that every case where information received suggests a cognizable crime is committed must lead to registration of FIR, it means that the law on paper also says that where the magistrate finds that the police have failed to act upon receiving such information, the magistrate must direct registration of FIR. 

The judgment in Om Prakash hints at such an outcome being quite unpalatable as a judicial approach, and possibly illegal in the wake of the slight modifications to this area of law brought about by the BNSS. In asking magistrates to not pass mechanical orders and apply their mind to the matter, the Supreme Court did not say anything new in Om Prakash. Where it added a little bit of spark is its express invocation of an idea which I would label as the 'necessity' test for ordering police investigations. While it is not a new idea as such [for example, see here], it has been expressed with remarkable clarity this time. Take a look at Paragraph 25:

In fact, the Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Cr.P.C. Ofcourse, if the allegations made in the complaint require complex and complicated investigation which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police authorities. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police ['Emphasis Supplied'].

The phrase 'apply judicial mind' is thus transformed into at least one specific concept for magistrates: look at whether a police investigation is really necessary. The thought process of the Court driven by the facts of this case where it felt that an entirely frivolous case had been lodged and the magistrate simply did not apply their mind to the matter and directed police investigation.

But have bad facts made for bad law here? There are at least three serious problems in the Supreme Court advocating for this 'necessity' test. 

• First, the Court seems to have added requirements to the text of both Section 156(3) CrPC and 175(3) BNSS which are otherwise not there. Both laws may require reasoned orders, but to insist upon an inquiry into the necessity of an investigation by police into a case is nowhere required by either statute. 
• Second, in suggesting that FIRs need not be directed by magistrates where it is felt that there is no need for police investigation, the natural consequence is that this is now a ground which the police can itself take to refuse registration of an FIR and tell persons to prosecute their cases on their own. Such a course of action goes against at least the traditional reading of Lalita Kumari which was delivered by a Constitution Bench. It had held that there is no discretion for registering FIRs where a cognizable offence is made out, and identified a limited set of scenarios where police could conduct preliminary inquiries before lodging FIRs, but did not suggest that one test in deciding to proceed or not was that of necessity. Even with the BNSS, which has given statutory backing to this preliminary inquiry concept for a sliver of cases in Section 173(3) — punishable with more than three years but less than seven years — no necessity test has been clearly earmarked. 
• Third, and connected to the second, are the practical problems which arise because of the necessity test which are amplified when it comes to prosecuting private complaints under the BNSS. There is a far more cumbersome legal procedure for prosecuting private complaints, than prosecuting police cases. The Supreme Court conveniently glides over these differences and makes it seem that the two sets of procedures are comparable, which they are evidently not. To force upon a victim one process on the basis of how the police or magistrates consider the complexity of the facts or other factors is, still, arbitrary and allowing for unreasonable classifications to be drawn given no two cases are ever alike.

I must stress upon the second point a bit more before closing this post. The Constitution Bench judgment in Lalita Kumari shows us just how difficult it is to decide the issue of curtailing discretion in registration of FIRs in the style of absolutes. The text of law may require one thing, but the socio-political realities of the country make it evident that registering every information as an FIR will be downright absurd and cast an insurmountable burden upon an already overworked, understaffed, and underpaid system. At the same time, a signal had to be sent to the system that discretion in registering FIRs was the exception given how frequently it was being abused at all levels. The legislature has simply aped the ungainly bargain struck by the Court in Lalita Kumari without trying to improve the legal position in any meaningful way through the BNSS, passing the buck as it were back to Courts to continue struggling with this problem. The batting in favour of a 'necessity' test is reflective of exactly this phenomenon. It will probably be modified by Courts over time, crafted into a more chiseled approach which leaves less room for abuse, and till then all of the litigants will remain guinea pigs. 

Time for a Seven-Judge Bench Reference to resolve the FIR conundrum?

On 12.08.2022, the Supreme Court in XYZ v. State of Madhya Pradesh & Ors. [Crl. Appeal No. 1184 of 2022] set aside an order of the Madhya Pradesh High Court, and directed that a First Information Report ["FIR"] ought to be registered under Section 154 of the Criminal Procedure Code, 1973 ["Cr.P.C.'] by the local police on the complaint of the Petitioner XYZ. The allegations were of sexual offences being committed by persons occupying positions of responsibility in the place of work of XYZ. 

In its order, the Court made important observations about the roles of both police and courts when dealing with such cases. In respect of the courts considering applications for directing police investigations, the Supreme Court accepted that there was an element of discretion here, but in respect of sexual offences the courts ought not to "further burden" victims and "press upon the police to investigate" cases [Para 25]. In respect of the police, it referred to the Constitution Bench judgment in Lalita Kumari [(2014) 2 SCC 1] and noted that:

"18. Whether or not the offence complaint of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence s made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR. The law in this regard is clear - police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence." [emphasis mine] 

Five days later, on 17.08.2022, a Single Judge Bench of the Delhi High Court passed an order in Syed Shahnawaz Hussain v. State & Anr. [Crl MC No. 3456/2018]. This, too, involved alleged sexual offences - rape, no less. The petition was filed in 2018 challenging orders of a magistrate directing that an FIR be registered (the High Court proceedings arose after a Sessions Court had rejected a revision petition against the magistrate order). 

By way of an interim order of 13.07.2018, the High Court had stayed registration of an FIR. Four years later though, the High Court dismissed the petition and directed police to register the FIR and proceed with a speedy investigation. While it did not cite XYZ v. Madhya Pradesh, the High Court also invoked Lalita Kumari to conclude that the decision as to whether or not an offence was made out was the result of an investigation after lodging an FIR, and could not be relied upon to forestall lodging an FIR itself.

Another five days after the order of the High Court, it was challenged [SLP (Crl.) 7653/2022] and came before a different bench of the Supreme Court than XYZ v. State of Madhya Pradesh. This bench on 22.08.2022 stayed operation of the High Court's and has, for now, returned the case to cold storage.

The contrast between the positions adopted in XYZ v. State of Madhya Pradesh—where the police had also conducted an inquiry and found no offence was made out—and the arguments of the Petitioner in Syed Shahnawaz Hussain could not be more striking. In the former, the Court emphatically rules out an element of discretion for the police in registering FIRs where complaints make out cognizable offences. Whereas in the latter, it is precisely the exercise of this discretion that the Petitioner submits is laudatory and ought to be considered by courts. Admittedly, only an interim order has been passed by the Supreme Court so far in the petition, but interim orders are only passed where the court thinks some merit exists in the case. As the order itself notes, the Court thinks that the issues "require consideration".

Both XYZ v. State of Madhya Pradesh and Syed Shahnawaz Hussain ultimately trace their roots back to the Constitution Bench judgment of the Supreme Court in Lalita Kumari, and I would argue that is where the problem lies. This very issue of whether police officers have any discretion to register FIRs was placed before the Constitution Bench, and in a remarkable judgment, the Court failed to resolve it with the level of clarity that it required [as explained at length in a different post]. Lalita Kumari failed to sufficiently decide what is an FIR — is it simply a ministerial act required to be done by the police once they receive a complaint, or is it something more? 

The text of the Cr.P.C. suggested it should be the former, but practice suggested that lodging of an FIR was a critical stage in the process, indicating that a formal accusation had been made by the state legitimising exercise of its coercive powers and imposing collateral consequences for persons (such as difficulties in obtaining passports or government jobs). If an FIR is such a critical stage, surely it cannot be reduced to the stage of a ministerial act, and must allow an element of discretion to ensure frivolous cases aren't lodged without requiring a full-blown investigation every time. 

After vacillating between the two views, the Court tried to adopt a middle path, which meant not deciding the issue one way or another, and without even considering the deeper issue of if there is no discretion in the police lodging an FIR, what about discretion in choosing the offences that it is invoking. Ultimately, it held that there is no discretion in lodging an FIR, but there is still some discretion in some cases, and did not say anything about deciding which offences are made out. 

The equanimity within Lalita Kumari has been reflective in practice ever since. It has meant that parties on both sides of the spectrum can invoke the same Constitution Bench judgment to make their case, which must be a unique distinction but certainly has left the practice of law poorer. The sharp contrasts between these two cases around alleged sexual offences highlighted in this post are only the most recent examples of the problems that this judgment has fostered. 

Would referring Lalita Kumari to seven judges help? I am not sure, because it is not possible for the courts to sufficiently resolve the complex problem of unravelling the significance of an FIR. Nevertheless, a clear judgment could help restore some clarity by looking closely at the scheme of the Cr.P.C. which does allow for some elements of discretion, albeit not at the registration of FIR itself. 

Perhaps it could even result in a de-linking of the registration of an FIR from collateral consequences, and allow a level of judicial oversight to come in between giving the process greater fairness and pre-emptively securing liberty interests. 

In that reference, a related and equally critical issue must be considered - the role of magistrates through the investigation process. Both XYZ v. State of Madhya Pradesh and Syed Shahnawaz Hussain concerned a magistrate's powers under Section 156(3) of the Code to direct the police to conduct investigations. This is one amongst many other clauses which bring the magistrate within the investigative process. 

Sitting along side this statutory involvement of magistrates in investigations, there exists a strong judicial view—stretching all the way back before independence—that courts and police operate in separate silos. A seven-judge reference would be an apt opportunity to reflect on the relative merits of this approach. 

Till that day comes, Lalita Kumari and its vacillation will continue to plague the system.        

Lalita Kumari, and Police Discretion at the Stage of Registering an FIR

Six year old Lalita Kumari went missing from near her house on the night of May 5, 2008. When she did not come back, her father filed a missing persons report. A week later he was told that his daughter had been abducted, and so he filed a complaint with Police Station Loni, Ghaziabad, Uttar Pradesh. The police did not even register a First Information Report under Section 154 of the Criminal Procedure Code of 1973, in turn compelling Bhola Kamat to write to the Senior Superintendent of Police, Ghaziabad. 

It was only on the direction of the Superintendent of Police, Ghaziabad, that FIR No. 484 was registered by Police Station Loni on 06.06.2008, under Sections 363, 366, 506, and 120-B of the Indian Penal Code. Things did not end here. The police refused to carry out a proper investigation, as per Kamat, unless he paid up. This led to Bhola Kamat invoking the extraordinary jurisdiction of the Supreme Court and file a habeas corpus petition to produce his missing child. This petition was registered as Lalita Kumari v. Government of Uttar Pradesh & Others [W.P. (Crl.) 68 of 2008]. 

The Five-Year Journey of Lalita Kumari

The records of this case do not clearly reflect what happened in respect of the main plea seeking production of Lalita Kumari. Instead, right from the outset, the focus of the proceedings appears to have become the purported inaction of the local police in registering the case. On the first date itself, the Bench of Justices G.S. Singhvi and B.N. Agrawal noted that: 

"[I]t is a matter of experience of one of us ... that in spite of law laid down by this Court, the police authorities concerned do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. ... On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed ... "

This apparent class-divide prompting the workings of the criminal process compelled the Bench to observe that it was "high time to give directions" to the governments to make police accountable for not only registering FIRs but also handing over copies, and where it was not being done, then to hold the errant officials accountable.

While it took some time to get responses from all states and union territories, very early on it became clear to the bench that it had, unwittingly almost, touched upon an arena of several contradictory views expressed in earlier opinions. There certainly was a line of judgments which implored prompt registration of FIRs where information disclosed commission of cognizable offences and sought to exclude any discretion in this matter with the police. This, however, coexisted with judgments which called upon the police to tread cautiously and make sufficient inquiries because registering an FIR, as per this view, was a critical stage that ought not to be triggered lightly. 

As a result, Lalita Kumari's petition first went before a Bench of Three Justices and remained there for almost four years. On 27.02.2012, this bench of Three Justices concluded that the conflict of opinion on the issue was such (both, in terms of precedent as well as the views taken by all the States and Union Territories) that it would be best for a Constitution Bench to settle the matter once and for all. The outcome of this exercise the decision reported as (2014) 2 SCC 1, titled Lalita Kumari v. Government of Uttar Pradesh & Others ["Lalita Kumari"]. From a criminal process standpoint, it is arguably one of the most important decisions over the past decade, and it is credited with having held that a police officer must register an FIR when information discloses the commission of a cognizable offence.

Critiquing the Constitution Bench Judgment

That the issue of non-registration of FIRs is still very much a live one since Lalita Kumari was decided is a well-known fact. In no small measure is this attributable to the class divide that the Bench had taken note of in its very first order — it is usually the cases filed by the haves that are resolved at a supersonic jet speed, while those of the have-nots continue to be neglected. Given this institutional malaise, hardly any significant critical engagement has happened with what the judgment in Lalita Kumari itself did. It is unacceptably simplistic to conclude that Lalita Kumari has held that FIRs must be registered and that it does not happen is because of rogue elements in the force. 

Instead, I argue that Lalita Kumari actually failed to discharge its mandate of clarifying the law and, thus, has also contributed to the current state of affairs. While the Bench set out to resolve contradictory views, what it ended up doing was to place that contradiction at the very heart of the decision, and complicated things further. [Earlier posts on interpreting Section 154 are here, and here]

As a starting point, let us extract the complete paragraph from the Constitution Bench judgment which is supposed to lay down the law:

In view of the aforesaid discussion, we hold:

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

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 

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

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: 

a) Matrimonial disputes/ family disputes 

b) Commercial offences 

c) Medical negligence cases 

d) Corruption cases 

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. 

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry [Note: this was clarified to read 21 days by a subsequent order in the matter]. 

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

Reading this paragraph in full makes it clear that there is no unequivocal directive being issued that the police must register FIRs. The judgment only held that police must register where information discloses a cognizable offence, and this one word changes everything. In affirming that FIRs need only be lodged if police find that a cognizable offence is disclosed, what Lalita Kumari does is unequivocally accept that there is clear discretion and application of mind being exercised by the police at this stage. FIRs are, therefore, matters of moment and not mere administrative exercises of power. 

Having recognised, albeit indirectly, that registration of FIR is an exercise of police discretion, it fell to the Court to clarify the scope and extent of the same. This is what the subsequent paragraphs try to do. A preliminary inquiry may be conducted where the information does not disclose a cognizable offence, but this does not extend to verifying the veracity of the allegations, rather it is "only to ascertain whether the information reveals a cognizable offence" and must be done promptly. 

By saying the same thing through a slightly different combination of words, the Court does not manage to offer any clarity on the issue. How will the police conduct this inquiry all the while staying clear of going into the merits? Can they call for documents or summon persons to question them? Can potential accused persons be called to the station as well? Since there is no clear recognition of such preliminary inquiries within the Criminal Procedure Code, what legal status will any such requests for documents or oral clarifications carry? These are only some necessary questions which arose once the Court affirmed the practice of preliminary inquiries, which continue to pose troubling questions till today.

In a judgment focused upon police discretion in the context of registering FIRs, the Court paid hardly any attention to issues of discretion that went beyond the mere registration of the FIR and touched upon the contents of such documents. Specifically, on the offences themselves that are disclosed. 

Let me explain. There is a gap between information which a layperson brings to the police and the "First Information Report" which is born as a result of that interaction. This transformative exercise is, in many cases, not purely administrative because the informant will often not speak the language of the penal code. It will fall to the police to figure out which offences are made out, and view that information from the lens of mens rea and actus reus. Often, it will also fall to the police to decide which offences should be picked where the information discloses commission of both generic and special crimes. 

These are not academic issues but carry significant liberty-related consequences, for the same narrative may not only trigger both cognizable and non-cognizable offences, but also offences where bail is a matter of right and others where no such right exists. All these aspects are also an element of discretion vested with the police officer, and required discussion, if not regulation, by the Court in Lalita Kumari.  After all, the Court itself had framed the issue as requiring police to identify if cognizable offences are disclosed. Yet, these aspects of discretion wielded by police went entirely unnoticed.   

Conclusion

Lalita Kumari ultimately failed to deliver on its initial promise. Legally, it did not clarify much. What it did very well was to prolong the status quo and keep all stakeholders happy. Victims are told that police are duty-bound to register FIRs for cognizable offences, while police are told that they are duty-bound to register cases if the information they get discloses the commission of cognizable offences. For good measure, failure to register cases could attract action, which again only continued status quo. In having taken up the issue of police discretion while registering cases, the Court had the perfect opportunity to take a closer look at the role played by police in framing the case and invoking offences at this initial stage of the process. It did not even recognise the significance of this power wielded by police officers, let alone meaningfully engage with it. 

The exercise of discretion by police officers at Loni, which caused Bhola Kamat to run from pillar to post to get a case lodged for his abducted daughter, came out relatively untouched after the long journey that the Lalita Kumari petition had in the Supreme Court. It remains the principal reason why the police can refuse to register FIRs outright. What has changed, though, is that where victims and police would have earlier cited different precedent, today Lalita Kumari gives the answers for both sides in the room, by not really answering anything at all. 

Guest Post: Case Comment — Charansingh v Maharahstra and Developments in the Law on Preliminary Enquiry in Corruption Cases

(This is a guest post by Mr. Divyang Thakur. Views are personal)

Introduction

The Hon’ble Supreme Court of India (the Court) in the case titled Charansingh v. State of Maharashtra (AIR 2021 SC 1620) decided on 24.03.2021 came to some interesting conclusions regarding the scope of a Preliminary Enquiry (PE) in corruption cases which have potentially far-reaching implications. 

A complaint was received by the Anti-Corruption Bureau, Nagpur regarding disproportionate assets owned by a public servant, the Appellant (hereinafter referred to as ‘C’). C received a notice issued by the Inspector (“IO”) of ACB, Nagpur in pursuance of an “Open Enquiry”. The notice required C to (i) give a statement regarding the properties owned by him; (ii) produce certain documents relating to the properties. The list of documents required to be furnished by C to the IO has been reproduced by the Court in the judgment and is repeated here for the sake of convenience: - 

“1) Record in respect of ancestral and self-acquired property in your name, for example, Registered Deed, Construction Licence, Receipts relating to tax, Sale Deed of Agricultural Land, 7/12 Extract and Mutation Entries, etc. 2) Details of ancestral and self-acquired gold coins and jewellery, likewise sale and purchase of vehicle. 3) Passbooks, Certificates, L.I.C., Shares/Debentures Certificates, etc. in respect of investments at bank, insurance and others in your name and in the name of your family members. 4) Details of documentary evidence in respect of loan borrowed by you. 5) Proofs and income tax return in respect of your income other than your remuneration. 6) Details of expenditure incurred by you in respect of pilgrimages, functions, hospitals, foreign tours, etc. 7) Information regarding remuneration and allowances received by you.”

C challenged the notice issued by the IO, ACB through a writ petition alleging that the same infringed his constitutional right against self-incrimination before the Hon’ble High Court which dismissed the petition and thereafter C appealed to the Hon’ble Supreme Court.

The Findings

Two questions arose: - (a) whether a PE was legal, (b) what is the scope and extent of such PE.

Regarding (a), the Court relying upon Lalita Kumari v. Government of UP & Ors (AIR 2014 SC 187) found that such enquiry was permissible and in the words of the Court “…and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income…” This is merely a reiteration of Lalita Kumari where the Court had identified corruption cases as one category in which PE would be permissible. (Whether the Court in Lalita Kumari having interpreted Section 154 CrPC in the manner in which they did, should have given judicial sanction to PEs is debatable and also not the subject of the present post.)

The more significant findings relate to (b) i.e., with respect to the manner and extent of the PE. The Court found that (i) a PE is only held to determine if a cognizable offence is made out; (ii) the IO need not be completely convinced or satisfied about the gravamen of allegations, it is sufficient if he suspects the commission of a cognizable offence, once the IO does so suspect he is duty-bound to put an end to the PE and register the FIR; (iii) a notice sent during the PE is only to allow the receiver of the notice to clarify regarding the assets and known source of income; (iv) the statement recorded during such PE does not fall within Section 160 CrPC; (v) the statement recorded during PE cannot be used against the accused during trial; (vi) the statement recorded during PE cannot be treated as a confessional statement. 

The Court finally dismissed the appeal while adding a rider that the statement recorded during the PE could only be used by the IO to enable him to take a decision with respect to registration of the FIR.

Implications & Key Takeaways

The Conundrum of summoning of documents during A Preliminary Enquiry

From a reading of the notice as reproduced in the judgment that was issued by the IO, ACB, it appears that it was not merely a notice to give a statement but to produce documents as well. In fact, the Court notes that “By the impugned notice, impugned before the High Court, and during the course of the 'open enquiry', the Appellant has been called upon to give his statement and he has been called upon to carry along with the information on the points, which are referred to hereinabove for the purpose of recording his statement.” In fact, the Court also cited the rules under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968 which explicitly allow the Enquiry Officer (EO) to collect “all available documentary evidence in support of the allegation”. The Manual of the Central Bureau of Investigation (CBI Manual) also allows for collection of documents during a PE (Point 7.14 of Chapter 7 dealing with PE states that required documents should be collected with a proper receipt. Interestingly, it is further stated that notices under 91 CrPC and 160 CrPC cannot be resorted to during a PE.) 

In Shyamlal Mohanlal v. State of Gujarat (AIR 1965 SC 1251) the Hon’ble Supreme Court held that “any person” does not include the accused u/s 91 of the Code of Criminal Procedure (CrPC) and therefore notice cannot be issued to an accused to produce documents, by virtue of Article 20(3). 

However, from a reading of this judgment, it appears that the IO could ask a person (as he would not be an accused before registration of FIR) to produce relevant documents during the PE stage. While the Court was at pains to point out that any statement recorded during the PE could not be used during trial, it did not hold so for documents. 

In disproportionate assets cases, the prosecution case often rests on documentary evidence related to the proof of known sources of income and actual assets. It would be highly contradictory for the IO to come to a finding that a cognizable offence has been made out on the basis of documents furnished during the course of the PE and then be subsequently barred from using such document at trial. 

At the same time, to say that the IO could summon documents from a potential suspect during PE but not do so during investigation incentivizes the IO to conduct the investigation in the garb of a PE, register the FIR and then place those documents on the charge sheet which were summoned from the accused during the PE, thereby doing indirectly what he could not have done directly by virtue of the Shyamlal Mohanlal judgment, without resort to Section 91 CrPC. In Charansingh, C had raised the issue of a potential violation of the rights guaranteed under Article 20(3) of the Constitution i.e., the right against self-incrimination, however the Court did not directly deal with the same and resolved the tension by holding that such statements were not to be used during trial. 

Charansingh, therefore, creates a grey area for criminal defence lawyers while advising clients at the stage of PE. Can a potential accused refuse to participate in an “open enquiry”? Could he refuse to produce documents which could potentially lead to a criminal charge, penalty or forfeiture? Would he be subject to prosecution under Section 175 of the Indian Penal Code (IPC) in event of such refusal? Unfortunately, there is no clarification in this regard in the present judgment and could possibly lead to future litigation. 

Removal of the Protection of Section 160, 161 and 162 CrPC for Statements made during a Preliminary Enquiry 

The CrPC lays down certain safeguards that protect witnesses and accused during the course of an investigation. Section 161(2) binds persons to answer truly except in cases where the answers might expose him to a criminal charge, penalty or forfeiture. Such refusal does not lead to a prosecution under Section 176 IPC. However, in the present case, the Court ruled that the statement made during PE does not fall under the ambit of Section 160 CrPC. Presumably this would be true for witnesses as well as the potential accused. Would this mean that Section 161(2) does not apply and therefore, there is no right to silence during the PE and a possibility of prosecution under Section 176 IPC? Even conceding the fact that the statement of the potential accused cannot be used against him during the trial, the judgment does not clarify the status of the statements made by other witnesses who might be arrayed as prosecution witnesses during trial. A liberal interpretation would be to presume that no statement made, whether by the potential accused or witnesses would be admissible during trial, however, as the present case only dealt with the use of the statement of the accused, there is a grey area with respect to the statements of witnesses. 

Moreover, if such witness statements do not fall under Section 160 CrPC, in that case, the bar of Section 162 CrPC would not operate, and such statements could be used to not only contradict prosecution witnesses but to corroborate them and operate in a manner similar to an FIR or a statement under Section 164 CrPC. Moreover, the EO, in absence of the bar under Section 162(1) could also get such statements signed by the witnesses, which might prejudice the accused during trial. 

The holding in the present judgment that statements made during a PE do not fall under Section 160 CrPC might have some unintentional consequences and create a grey area. 

Section 27 of the IEA and Discovery during PE

Another problem that might arise is if a discovery takes place by virtue of a statement made during PE. Usually, such confessional statements are admissible by virtue of Section 27 of the Indian Evidence Act 1872, notwithstanding anything contained in Sections 25, 26 of the IEA. In this case it would be the prosecution that stands to lose, because the present judgment makes the statements completely inadmissible, without exceptions. 

The other alternative with the IO would be to register such confessional statement as an FIR and thereafter conduct the subsequent recovery, but then that would subvert the rationale behind the present judgment where the Court tried to shield potential suspects from their statements made during PE being used against them subsequently. 

Conclusions

As noted above, Charansingh could potentially lead to unintended consequences, especially in the three situations outlined above. It should also be kept in mind that the present judgment would also be applicable to a vast variety of white-collar crime, matrimonial, commercial cases investigated by the local police authorities, where a PE is usually conducted, and not only to corruption cases. It would have been better, therefore, if these issues were clarified, especially as this ruling could incentivize Investigative agencies to conduct investigations surreptitiously in the guise of a PE, with wider powers than they have under the CrPC. Moreover, while the Court held that the statement of the potential accused cannot be used against him during trial, it would have been better if the Court had identified the statutory principles behind this, as to my understanding, there is nothing in the Evidence Act that bars the use of such statements.

Of even more significance is the rationale used to justify the PE as being helpful to the potential accused as it enables him to give an account of his assets. This sounds very much like an obligation on the accused to disclose his defence at the pre-FIR stage itself. It also looks like a discovery procedure for the Prosecution against the defence at a much earlier stage. Certain jurisdictions like England under the Criminal Justice Act 1996 (amended in 2003) require a disclosure of defence in certain circumstances. We should be on guard against any such ad hoc disclosure and discovery procedures in the garb of a PE. IOs often place the entire record of the Enquiry on record before the Court and without being intended, such record could play a role in the final decision on charge and judgment. 

In the larger perspective, while the Supreme Court was at pains to point out that the framework of the CrPC is inapplicable PE, it is unclear then as to what rules can be resorted to by the IOs of various agencies to conduct a PE. The CBI Manual recognizes that the CrPC is inapplicable to the collection of material including documents during a PE but then also requires the Enquiry Officer to collect “required documents”. While it has been the settled law that the CBI Manual and other manuals of similar nature are in the nature of executive instructions and cannot override the statutory law, the decision in Charansingh has, in my opinion, given the judicial go-ahead for Enquiry Officers to collect documents and statements while explicitly making the CrPC inapplicable. While the decision clearly states that this exercise is only for the purpose of deciding whether a cognizable offence is made out, it is not clear as to what remedy is available if an Enquiry Officer exceeds his mandate.

It is time that PEs, if seen as necessary, should have legislative backing, clearly delineating the safeguards, and resolving the conundrums highlighted in this post.

A Heretic's Guide to Section 154 CrPC and Registration of FIR (Part II)

A while back, this blog begun a discussion on Section 154 Criminal Procedure Code 1973 [Cr.P.C.], the provision considered as the basis for perhaps the First Information Report [FIR]. The previous post had covered important history and ran through the previous incarnations of the procedural code. This exercise laid bare the various little tweaks that eventually resulted in the current Section 154 Cr.P.C. We left the post with one pointed observation: till the 1882 Code, the relevant provisions merely spoke of every information or complaint given to the police. From 1882 onwards, though, the statute now referred to situations where the public gave information relating to the commission of a cognizable offence. The issue, then, was this: who decided whether the information provided to the police relates to a cognizable offence?

Revisiting Lalita Kumari 

This question lay at the heart of the reference made to a Constitution Bench of the Supreme Court in Lalita Kumari v. State of Uttar Pradesh [(2014) 2 SCC 1]. The Court was called on to decide whether it was mandatory for the police to register an FIR in each and every case. If Section 154 Cr.P.C. privileged the viewpoint of the police, then discretion was inbuilt into the provision to allow police to not register cases where it thought information did not relate to commission of a cognizable offence even where the complaint stated otherwise. But, if the viewpoint of the informant was seen as driving Section 154, then every complaint stating a cognizable offence is committed must result in an FIR.

Before this, an overwhelming majority of decisions had held no discretion ought to be present with the police, barring some very particular cases. For instance, Jacob Mathew [(2005) 6 SCC 1] held  an FIR ought not to be immediately registered on a complaint alleging medical negligence against doctors. At the same time, the Supreme Court was not ignorant of how one's liberty could potentially be curtailed if an FIR was registered naming her. This possibility of abuse had led various states (led by Maharashtra) to argue for a discretionary model. The fallacy of the argument was that possibility of improper enforcement does not make the law bad, and it was not surprising to see the Supreme Court reaffirm the line of authority which held an FIR had to be registered. 

This meant the Court thought the perspective of a complainant / informant is what guides the phrase "information relating to the commission of a cognizable offence" found in Section 154 Cr.P.C. Before concluding, though, the Court gave a set of 'conclusions / directions' [In Paragraph 120 of the SCC version]. These allowed for the police to conduct a 'preliminary inquiry' in cases where "the information received does not disclose a cognizable offence". This preliminary inquiry can last for 21 days [the initial time-limit of 7 days was changed in March 2015] and if the officer concludes no cognizable offence is made out then the informant must be notified. The court indicated that "as to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case" but went ahead and specified five areas as illustrations where an inquiry may be conducted: (i) matrimonial cases, (ii) commercial offences, (iii) medical negligence cases, (iv) corruption cases, (v) cases with abnormal delays on reporting (over 3 months). 

Effectively, the Court bought the abuse argument and undid all the previous 119 paragraphs telling us that registration of an FIR is mandatory and how immediate registration brings various benefits. Not only this, but as subsequent practice across courts would reveal, the case has perversely given birth to an argument that preliminary inquiry must be conducted in the cases that find specific mention in the concluding paragraph. So, not only did the Supreme Court permit 21 day delays on the registration of an FIR, it also compounded delays by giving rise to petitions challenging the registration of FIRs where no inquiry was done. On a more theoretical level, we see how the Court never really answered the reference. In fact, the concluding paragraph leaves the basic question in limbo. If anything, it tells us that at the end of the day, it is the police whose word decides whether or not information is relating to commission of a cognizable offence in Section 154 Cr.P.C.

A Heretic's Guide to Section 154 Cr.P.C.

Since this part of the post offers proposals that are never going to see the light of day, we can call it my purely academic pursuit and proceed further. Reading Sections 154, 155 and 157 together, I argue that Section 154 was never meant to deal with something like the FIR as it exists today across most police rules. In this reading, I am buttressed by history and the evolution of these provisions over the various re-drafts of the code. The FIR is a historical oddity, for which the correct statutory basis, if any, is Section 157.

Take a moment and go back to the 1861 and 1872 versions of the Code. The evolution seems focused on (i) record-keeping through entry into a diary, and (ii) ensuring the genuineness information by making informants sign on it. Nothing in these provisions, and even in Section 154, spoke about the investigative powers of the police. That, always, had been the prerogative of Section 157 and its predecessors. 154 talks about information, 157 says that "from information or otherwise" the police can investigate. Before 1882, this scheme neatly refused to comment upon the kind of offences disclosed in the information sections which, at the cost of repetition I state, was unfortunately blurred in 1882 by Section 154 and Section 155.

Even so, what is clear is that Section 154 neither speaks of reports nor does it speak of investigations. Section 157 speaks of both. Section 157 says that if the police officer "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 the Magistrate ..." If the officer thinks there is insufficient grounds to investigate, then the officer is required to explain this in the report and notify the informant. If you look at an FIR [I have not been able to find one blank FIR online] you will find all these requirements etched out in various columns. This, together with everything before, confirms my suspicions that the big header that reads "First Information Report under Section 154 Cr.P.C." on an FIR is certainly legally incorrect. It should have always been Section 157. If we do that now, then all this confusion is taken care of as well. Just insert the time-limit of 21 days into Section 157 and the entire Lalita Kumari architecture is rendered superfluous.

To conclude, I offer my alternate reality. In my world, Section 154 would simply mean registering the information received by the police in a diary / register / notebook / computer. Section 155 would operate if the police thought that the information disclosed a non-cognizable offence. The informant would be referred to the Magistrate, who may yet be convinced that the information disclosed a cognizable offence and then Section 156 allows necessary directions to be passed. Section 157 talks about cases where the police thinks a cognizable offence is disclosed / is told that such an offence is disclosed [Section 156(3)] and decides what to do next. This creates a report, which would be called a First Information Report, since this is the first information the Magistrate receives of the possible offence. Lalita Kumari would never have happened, and the docket might have been a shade lighter.

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?