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Mh.L.J. 2009 (1) 97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR, C.J. AND S.J. VAZIFDAR & A.A. SAYED, JJ
Sandeep Rammilan Shukla — PETITIONER
VERSUS
The State of Maharashtra — RESPONDENTS
CRIMINAL MISC. APPLICATION NO. 271 OF 2007
IN
WRIT PETITION NO. 982 OF 2007
WITH
CRIMINAL APPLICATION NO. 219 OF 2007
IN
WRIT PETITION NO. 2031 OF 2007
Decided on : 8TH OCTOBER 2008
Criminal Procedure Code, 1973 - Sections 154 and 157-Preliminary inquiry pre- registration-Purpose of.-The purpose of preliminary inquiry pre-registration is to void absurd results, avoid undue harassment to any person at the behest of unscrupulous complainant and/or where the information given patently does not disclose a cognizable offence and necessitates some kind of inquiry to finally bring the alleged occurrence within or outside the definition of a cognizable offence as that is sine qua non for registering a case and putting into motion the police investigating machinery. Patent falsity may again be a ground for providing time for the complainant as well as the officer concerned to act in accordance with law without delay. A patently false information or an information leading to absurd results has twin consequences. It may expose the information to penal action in accordance with law in the event of giving a false information. The other being that on such information the entire investigation machinery is unnecessarily put to motion which in terms of law has to be taken to its logical end.
Criminal Procedure Code, 1973 - Sections 154 and 157-Pre-registration inquiry-Concept of.-There is no prohibition in law for a police officer-in-charge of a police station to make a preliminary inquiry pre-registration of FIR. Though obligation on the part of police officer to record-register information in regard to cognizable offence instantaneously is absolute, still there is an exception, of course, a very rare one. In those extraordinary cases which while fall in this exception, the investigating officer is expected to act fairly, objectively and with unequivocal intention and commitment to uphold the rule of law for maintaining norms of administration of criminal justice. The officer is expected to act without undue delay and without causing prejudice to any of the parties affected in that process. The concept of pre-registration inquiry is not unknown to law. Even the systems of other countries suggest that such an approach is not opposed to settled canons of criminal jurisprudence. Undoubtedly, a communi observantia non est recedendum is the maxim controlling the provisions of Section 154 of the Criminal Procedure Code.
Criminal Procedure Code, 1973 - Sections 154, 157, 173 and 41- Cognizable offence-Investigation of.-The investigation of a cognizable offence in contradistinction to non-cognizable offence is without the leave of the Court. The powers of the investigating officer are of very wide magnitude. Once an FIR has been registered in terms of Section 154 of the Code, the police officer without an order from the Magistrate and without a warrant may arrest a person who has been concerned in any cognizable offence and for various other reasons stated in Section 41. In other case, he is expected to proceed to file a report before the Court of competent jurisdiction as per the requirements of Section 173(2) of the Code.
Criminal Procedure Code, 1973 - Sections 154 and 173-Delay in investigation-Applicability of Cr PC.-The law relating to criminal Procedure applicable to all criminal proceedings in India except the State of Jammu & Kashmir and Nagaland is specified in the Code of Criminal Procedure, 1973 which was amended from time to time and extensive amendments were introduced by the Amending Act of 1995. The object of the Code is to ensure that an accused gets a full and fair trial along with certain well established and well understood lines that accord with notions of natural justice and there is completely expeditious but fair investigation. The basic importance of criminal procedure has to be kept in mind as it is the procedure that spells out much of the difference between the rule of law and rule by whim and caprice. The criminal procedure is supplemental to the substantive criminal law. Its failure would seriously affect the substantive criminal law which in turn would considerably affect the protection that it gives to the society. Therefore, it has been rightly said that too much investigating delay and uncertainty in applying the law of criminal procedure would render the best penal law useless and oppressive.
Interpretation of Statutes - Basic principles of.-The basic principles are stated that the statute dealing with the jurisdiction and the procedure are, if they relate to infliction of penalties strictly construed; compliance with the procedure will be stringently exacted from those proceeding against the person liable to be penalized and if there is any ambiguity or doubt it will, as usual, be resolved in his favour. These principles have been applied with approval by different Courts even in India. Enactments relating to procedure in Courts are usually construed as imperative. A kind of duty is imposed on Court or a public officer when no general inconvenience or injustice is caused from different construction. A provision of statute may impose an absolute or qualified duty upon a public officer which itself may be a relevant consideration while understanding the provision itself.
Interpretation of Statutes - Basic purpose of.-The basic purpose of interpretation of statute is further to aid and apply in determining either the general object of the legislation, or the meaning of its language in any particular provision. It is obvious that the intention which appears to be most in accordance with the convenience, reason, justice and legal principles should, in all cases of doubtful interpretation, be presumed to be the true one. The intention to produce an unreasonable result is not to be imputed to a statute. On the other hand, it is not impermissible but rather is acceptable to adopt more reasonable construction and avoid anomalous or unreasonable construction. A sense of the possible injustice of an interpretation ought not to induce judges to do violence to well settled rules of construction, but it may properly lead to the selection of one rather than the other of two reasonable interpretations. In former times the statute imposing criminal or other penalties were required to be construed narrowly in favour of the person proceeded against and were more rigorously applied. The Courts were to see whether there appeared any reasonable doubt or ambiguity in construing the relevant provisions.
Interpretation of Statutes - Duty of Court.-It is a settled rule of interpretation of statute that the Courts should always tilt in favour of rule of plain construction unless the legislative intent/object and language unambiguously support another construction.
Interpretation of Statutes - Norm of.-The distinction between the mandatory and directory provisions is a well accepted norm of interpretation. The general rule of interpretation would require the word to be given its own meaning and the word ’shall’ would be read as "must" unless it was essential to read it as "may" to achieve the ends of legislative intent and understand the language of the provisions. It is difficult to lay down any universal rule but wherever the word ’shall’ is used in a substantive statute it normally would indicate mandatory intent of the Legislature.
Interpretation of Statutes - Principle of.-The principle of interpretation of statute more particularly in a criminal case would depend on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant difference may alter the entire aspect.
Criminal Procedure Code, 1973 - Sections 154 and 157 - Pre-registration inquiry - Concept of. - There is no prohibition in law for a police officer-in-charge of a police station to make a preliminary inquiry pre-registration of FIR. Though obligation on the part of police officer to record-register information in regard to cognizable offence instantaneously is absolute, still there is an exception, of course, a very rare one. In those extraordinary cases which while fall in this exception, the investigating officer is expected to act fairly, objectively and with unequivocal intention and commitment to uphold the rule of law for maintaining norms of administration of criminal justice. The officer is expected to act without undue delay and without causing prejudice to any of the parties affected in that process. The concept of pre-registration inquiry is not unknown to law. Even the systems of other countries suggest that such an approach is not opposed to settled canons of criminal jurisprudence. Undoubtedly, a communi observantia non est recedendum is the maxim controlling the provisions of Section 154 of the Criminal Procedure Code.
Criminal Procedure Code, 1973 - Sections 154, 157, 173 and 41 - Cognizable offence - Investigation of. - The investigation of a cognizable offence in contradistinction to non-cognizable offence is without the leave of the Court. The powers of the investigating officer are of very wide magnitude. Once an FIR has been registered in terms of Section 154 of the Code, the police officer without an order from the Magistrate and without a warrant may arrest a person who has been concerned in any cognizable offence and for various other reasons stated in Section 41. In other ca se, he is expected to proceed to file a report before the Court of competent jurisdiction as per the requirements of Section 173(2) of the Code.
Criminal Procedure Code, 1973 - Sections 154 and 173 - Delay in investigation - Applicability of Cr PC. - The law relating to criminal Procedure applicable to all criminal proceedings in India except the State of Jammu & Kashmir and Nagaland is specified in the Code of Criminal Procedure, 1973 which was amended from time to time and extensive amendments were introduced by the Amending Act of 1995. The object of the Code is to ensure that an accused gets a full and fair trial along with certain well established and well understood lines that accord with notions of natural justice and there is completely expeditious but fair investigation. The basic importance of criminal procedure has to be kept in mind as it is the procedure that spells out much of the difference between the rule of law and rule by whim and caprice. The criminal procedure is supplemental to the substantive criminal law. Its failure would seriously affect the substantive criminal law which in turn would considerably affect the protection that it gives to the society. Therefore, it has been rightly said that too much investigating delay and uncertainty in applying the law of criminal procedure would render the best penal law useless and oppressive.
Introduction Marcus Tullius Cicero, a great orator and Roman Attorney said, “The solidity of a State is very largely bound up with its judicial decisions”. The stability of State governance is relatable to the status of public law and order in the State. Protection to person and property of State subjects is the primary obligation of the State and this is the great significance of administration of criminal justice delivery system. Criminal jurisprudence governing the law of crime primarily has two concepts like any other legal jurisprudence :
(i) Substantive criminal law; and
(ii) Procedural criminal law. Provisions of substantive criminal law which are primarily penal in nature are subjected to rule of strict interpretation, while those relating to procedural law are guided by rules of plain and liberal interpretation. The Court, in the present cases, is concerned with the application of rules of interpretation to the procedural law particularly relating to the field of investigation as well as the effect of crime and its registration upon the social fabric of the State. Needless to notice that registration of First Information Report, inquiry, investigation and adjudication process of offences are the main attributes of administration of criminal justice delivery system.
2. The law relating to criminal procedure applicable to all criminal proceedings in India except the State of Jammu & Kashmir and Nagaland is specified in the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) which was amended from time to time and extensive amendments were introduced by the Amending Act of 1995. The object of the Code is to ensure that an accused gets a full and fair trial along with certain well established and well understood lines that accord with our notions of natural justice and there is completely expeditious but fair investigation. The basic importance of criminal procedure has to be kept in mind as it is the procedure that spells out much of the difference between the rule of law and rule by whim and caprice. The criminal procedure is supplemental to the substantive criminal law. Its failure would seriously affect the substantive criminal law which in turn would considerably affect the protection that it gives to the society. Therefore, it has been rightly said that too much investigating delay and uncertainty in applying the law of criminal procedure would render the best penal law useless and oppressive.
3. Every criminal trial is initiated by registration of “First Information Report” (for short “FIR”). This puts the mechanism of criminal investigation into motion and is the first step for commencement of legal process in accordance with law. It is expressed that to keep the weal balanced must be the prime duty of the judiciary. In interpreting and applying a penal statute, it has to be borne in mind that respect for human rights of the accused is not the only value at stake. The purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interest of every one that serious crime should be effectively investigated and prosecuted. There must be fairness on all sides. In criminal cases, this requires the Court to consider triangulation of interest i.e. the accused, the victim – his or her family and the public. Besides all this, the paramount duty and the very foundation of criminal investigation and justice delivery system is fairness in the entire process and to ensure that there is no denial of justice to any of the stated parties. Importantly, it is the fairness during investigation or trial that achieve the ends of criminal justice. Particularly, the procedural law thus needs to be examined and interpreted with the object of ensuring fairness even in the process of investigation. Whatever be the standards of legal conscience but they ultimately should be founded on law. Conscientia legalise lege foundatur.
4. Academic
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