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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.R. Shivakumar, J.
Kathiravan
Versus
State rep by the Commissioner of Police, Coimbatore and Another
Crl. O.P. Nos. 5368, 5390, 5498, 5538 and Others of 2009 and M.P. Nos. 1 of 2009
Decided On : 5th October, 2009.
(B) Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 155, 200, 482-FIR-Registration- Preliminary enquiry - Cognizable offence-Non-Cognizable offences- The duty cast upon the police to register a case when the complaint discloses commission of a cognizable offence is absolute and that the police cannot have any enquiry before registering a case.
A reading of section 154 of Cr.P.C will make it clear that the duty cast upon the police to register a case when the complaint discloses commission of a cognizable offence is absolute and that the police cannot have any enquiry before registering a case. Police get power to investigate in a cognizable case only when a FIR is registered. In case of non-cognizable offences, police cannot conduct investigation without the order of the Magistrate as per section 155 of Cr.P.C. Para 11
(C) Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 155, 200, 482-FIR-Registration- Preliminary enquiry - Police-High Court-Inherent power-Cognizable offence-Non-Cognizable offences- The officer in-charge of the police station, on receipt of an information disclosing commission of a cognizable offence, is duty bound to register a case and such officer cannot probe into the allegations to find out whether they are true or not before registering a case-Conducting preliminary enquiry before registering FIR is to be resorted by police only in enumerated cases and not to be routinely resorted to.
The officer in-charge of the police station, on receipt of a complaint (information) disclosing commission of a cognizable offence, is duty bound to register a case and such officer cannot probe into the allegations to find out whether they are true or not before registering a case. However, it does not mean that in no case the officer in-charge of the police station can conduct a preliminary enquiry to make a decision as to whether a case can be registered for being investigated upon in accordance with the provisions of Cr.P.C. But such cases are only exceptions to the general rule. Such exception should not be generalised by the police to say that the police do have a discretion either to register the case or to conduct a preliminary enquiry to make a decision whether to register a case or not. Para 15
(D) Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 155, 200, 482-FIR-Registration- Preliminary enquiry - In case of complaint against a public servant for dishonesty and corruption in discharge of their duties or for having wealth disproportionate to the known sources of income it is desirable to have preliminary enquiry before registration of FIR.
It is desirable to have a preliminary enquiry before registering a formal FIR when public servants are sought to be prosecuted for dishonesty and corruption in discharge of their duties or for having wealth disproportionate to the known sources of income. Para 17
Only in exceptional cases such preliminary enquiry should be made before registering a case. Such exceptional cases can be enumerated thus:-
1. cases wherein allegations are made against public officials of dishonesty, corruption, misuse of official power and possession of wealth disproportionate to the known sources of income;
2. Cases wherein the person from whom the information received is not identified;
3. Cases wherein the allegations in the complaint are vague and not unequivocal in disclosing commission of cognizable offence;
and
4. Cases in which there must be traces of inherent infirmity or absurdity. Para 17
(E) Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 155, 200, 482-FIR-Registration- Preliminary enquiry- The police should not adopt the practice of conducting an investigation in the guise of preliminary enquiry to arrive at a conclusion whether to register a case or not.
While recognising the power of the police, rather a duty of the police, to conduct a preliminary enquiry in appropriate cases, a note of caution should be appended that the police should not resort to do so without informing the de-facto complainant immediately on receipt of the complaint and should not postpone the registration of the case indefinitely. The police should not adopt the practice of conducting an investigation in the guise of preliminary enquiry to arrive at a conclusion whether to register a case or not.
Para 18
(F) Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 155, 200, 482-FIR-Registration- Police-High Court-Inherent power-High Court can, in exercise of its inherent powers, issue direction to the police to register FIR and investigate the same in certain case-Apart from the cases enumerated in Arokiya Marie’s case, in cases triable exclusively by Sessions Court, the High Court can issue such directions.
The list of offences enumerated in Arokiya Marie’s case as heinous crimes in respect of which directions should be issued to ensure that the evidence in such cases do not get erased by passage of time cannot be said to be exhaustive. Yet another category of cases should also be added as cases wherein the High Court has to issue directions under Section 482 Cr.P.C for registration of cases in order to render complete justice and prevent miscarriage of justice. Such cases are triable exclusively by Sessions Court.
Para 24
(G) Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 155, 200, 482-FIR-Registration- Police-Non-Cognizable offences- In case of non-cognizable offences, police have to register the information and direct the complainant to approach the Magistrate.
Even in cases wherein the complaint discloses the commission of non-cognizable offences alone, the police officer who is receiving the complaint cannot simply keep such a complaint without following the procedure prescribed under Section 155 of the Cr.P.C. Para 26
(H) Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 155, 200, 482-FIR-Registration- Police-High Court-Non-Cognizable offences-In case of non-cognizable offences, the investigation without the permission of the Magistrate is prohibited and not the registration of FIR.
Sub-clause (1) of Section 155 Cr.P.C enjoins a duty on the police officer in-charge of a police station who receives information regarding commission of a non-cognizable, within the limits of such station to enter such information in a book kept for that purpose and refer the informant to the Magistrate. The section mandates the police officer in charge of the police station to refer the informant and not the information alone to the Magistrate concerned. Experience has shown that in all cases wherein the police are of the view that the offences made out are non-cognizable, they think that they need not register a case and need not refer the informant to the Magistrate concerned. …….. Section 155 Cr.P.C does not prohibit registration of a case if the averment discloses the commission of a non-cognizable offence alone. What is prohibited is to investigate the same without obtaining the order of the Magistrate. Para 27
All these petitions have been filed by the respective de facto complainants seeking directions to the Station House Officers of the police stations concerned to register first information reports on the basis of the complaints given by them, as they have not chosen to register first information reports so far. In fact, there are a number of cases in which this Court on earlier occasions had granted such reliefs directing the police to register first information reports when this Court was satisfied that the allegations made in the complaints were sufficient to make out cases of commission of a cognizable offences.
2. However, relying on some of the recent judgments of the Hon'ble Supreme Court, it was contended on behalf of the police, that the police do have a discretion either to register a case upon receiving a complaint containing allegations attracting cognizable offences or to conduct a preliminary enquiry and based on such enquiry to decide whether to register a case or not. The said contention was mainly based on the observations made by the Hon'ble Supreme Court in AIR 1992 SC 604 : (1992) Supp 1 SCC 335 : (1992) SCC (Cri) 426. The said view was also followed in (2007) 10 SCC 69 : (2008) 1 MLJ (Crl) 488.
3. It has also been contended on behalf of the police that though the police may have got an obligation to register a case based on a complaint if it discloses commission of a cognizable offence, the person aggrieved by the non-compliance with such obligation cannot approach the High Court under Section 482 Cr.P.C for a direction to the police to register a case. The said contention was raised relying on the observations made by the Hon'ble Supreme Court in (2008) 1 MLJ (Crl) 1393 (SC) and (2008) 1 MLJ (Crl) 490 (SC). The observations made by the Hon'ble Supreme Court in the above said cases came to be considered by a learned single Judge of this Court in (2008) 2 MLJ (Crl) 796, another single judge of this Court sitting in the Madurai Bench of the Madras High Court in (2008) 2 LW (Crl) 84Yet, since some of the points, which the learned counsel appearing for the petitioners in these cases want to bring it to the notice of the Court were not put-forth by the petitioners in the earlier cases and not decided therein, the consideration of those aspects has become necessary for the disposal of these petitions. Hence, all these petitions are taken up together for disposal by a common order.
4. The counsel for the petitioners in all these petitions were led by Mr. A. Sirajudeen, who submitted the main arguments. In addition, the Advocates on record concerned also supplemented the same with their arguments. Mr. A. Ramesh, learned senior counsel also extended his help to the Court by making legal submissions as amicus curiae. Mr. I. Paul Nobel Devakumar, learned Government Advocate (Crl. Side) advanced arguments on behalf of the respondents in all these petitions. The materials produced at the time of hearing and available on record were also perused.
5. Aggrieved by the failure of the police to register criminal cases based on the complaints of the petitioners herein, they have approached this Court invoking the inherent powers of the High Court under Section 482 Cr.P.C, seeking directions to the police officers concerned to register cases based on the respective complaints. It is their contention that though the complaints disclosed commission of cognizable offences, the police failed to discharge their mandatory duty of registering cases and investigating the same.
6. The petitioners rely on Section 154 of Cr.P.C in support of their contention that the police officer in charge of a police station does not have a discretion either to register or not to register a case if the complaint discloses the commission of a cognizable offence. The said Section has been interpreted in umpteen (sic) number of cases to mean that the duty cast on the police officer in charge of the police station to register a case if the complaint disclo
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