Supreme Court on Registration of FIR (Lalita Kumari v. Govt. of U.P.)- Arguments Advanced

My last post explained the facts and issues involved in this case. Here is the next part.

Discussion and Arguments Advanced

1. It was submitted that Section 154(1) is mandatory as the use of the word ‘shall’ is indicative of the statutory intent of the legislature. It was also contended that there is no discretion left to the police officer except to register an FIR.

2. It was also said that Section 154 merely mentions ‘information’ without prefixing the words ‘reasonable’ or ‘credible’. Thus, the police authorities have no discretion or authority, whatsoever, to ascertain the veracity of such information before deciding to register it.

3. Various safeguards provided under the Code against filing a false case were also pointed out by both the sides.

4. The court cited the old Criminal Procedure Codes and compared them with the present one. Finally, the court found out that a perusal of the said provisions manifests the legislative intent in both old codes and the new code for compulsory registration of FIR in a case of cognizable offence without conducting any Preliminary Inquiry.

5. By Criminal Law (Amendment) Act 2013, Section 166A was inserted in Indian Penal Code which reads as under:-

“Section 166A—Whoever, being a public servant.—

(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or

(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or

(c) fails to record any information given to him under sub-section (1) of Section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under Section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, Section 509 shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to fine.”

6. It was contended that this provision clearly indicates that registration of FIR is imperative and police officer has no discretion in the matter in respect of offences specified in the said section. But, the legislature accepts that as far as other cognizable offences are concerned, police has discretion to hold a preliminary inquiry if there is doubt about the correctness of the information.

7. However, the court was unimpressed by this argument. The court said that the intention of the legislature in putting forth this amendment was to tighten the already existing provisions to provide enhanced safeguards to women. Therefore, the legislature, after noticing the increasing crimes against women in our country, thought it appropriate to expressly punish the police officers for their failure to register FIRs in these cases. No other meaning than this can be assigned to for the insertion of the same.

Judgment

On the Interpretation of Section 154

If the provision is unambiguous and if from that provision, the legislative intent is clear, there is no need to call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear.

The other rules of interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute.

The language of Section 154(1), therefore, admits of no other construction but the literal construction. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. Thus, the provision of Section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing a cognizable offence.

On the Usage of word “Shall”

The term “shall” in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations.

Hence, the object of using the word “shall” in the context of Section 154(1) of the Code is to ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in accordance with the provisions of law.

On the Importance of General Diary

The Court held that FIR must be registered in the FIR Register which shall be a book consisting of 200 pages. It is true that the substance of the information is also to be mentioned in the Daily diary (or the general diary). But, the basic requirement is to register the FIR in the FIR Book or Register.

The Court also pointed out that the Code was enacted under Entry 2 of the Concurrent List of the Seventh Schedule to the Constitution which is

reproduced below:-

“2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.”

On the other hand, Police Act, 1861 (or other similar Acts in respective States) were enacted under Entry 2 of the State List of the Seventh Schedule to the Constitution,

which is reproduced below:-

“2. Police (including railway and village police) subject to the provisions of Entry 2A of List I.”

At this juncture, it is pertinent to refer to Article 254(1) of the Constitution, which lays down the provisions relating to inconsistencies between the laws made by the Parliament and the State Legislatures. Article 254(1) is reproduced as under:-

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.”

Thus it is clear from the mandate of Article 254(1) of the Constitution that if there is any inconsistency between the provisions of the Code and the Police Act, 1861, the provisions of the Code will prevail and the provisions of the Police Act would be void to the extent of the repugnancy.

On the Word “Information”

The court has consistently held that genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be considered after registration of the case.

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.

On the Importance of Preliminary Enquiry

The court said that the legislative intent in this regard is quite clear, i.e., to ensure that every cognizable offence is promptly investigated in accordance with law.

The insertion of sub-section (3) of Section 154, by way of an amendment, reveals the intention of the legislature to ensure that no information of commission of a cognizable offence must be ignored or not acted upon which would result in unjustified protection of the alleged offender/accused.

Therefore, conducting an investigation into an offence after registration of FIR under Section 154 of the Code is the “procedure established by law” and, thus, is in conformity with Article 21 of the Constitution.

The next part of this series will talk about the significance and reasons for the registration of FIR at the earliest.

To be Continued.....