FIR registration is mandatory when a cognizable offence is disclosed; GD entries may be treated as FIRs in certain cases.

JUDGMENT :

SAURABH LAVANIA, J.

1. Heard Shri Prabhaat Kumar Tripathi, learned counsel for the applicant and Shri Aniruddh Singh, learned A.G.A. for the State.

2. Shri Prabhaat Kumar Tripathi, learned counsel for the applicant has submitted written submissions, which are taken on record, and based upon the same, he advanced his submissions. The submissions are extracted hereunder:

“1. That Article 21 of the Constitution of India confers the following fundamental right on all person living in India:

“Protection of Life and Personal Liberty. No person shall be deprived of his life of personal liberty except according to procedure established by law.”

Our Constitutional forefathers, though inspired by Fourtsenth Amendment of the U.S. Constitution, substituted its words “without due process of law” with “procedure established by law” emphasising the importance of procedure that the state has mandatorily to adopt while prosecuting an accused. The relevant Article of U.S. Constitution reads as under:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S; nor snail any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

2. That it is most respectfully submitted that the procedure to be adopted in prosecution of an accused is prescribed in the Cr.P.C. & Police Regulation Act of States. The letter though cannot prevail over Cr.P.C but would be subject to its provisions. However, all these mandatory provisions have been given a complete go by in the applicant’s case, hence all the criminal proceedings initiated against the applicant are void ab-initio and are liable to be quashed by the Hon. Court, as they have been launched contrary to the fundamental right of the applicant as enshrined in Article 21 of our Constitution, as observed in the Constitution in Lalita Kumari vs. Government of Utter Pradesh and others, 2014 (2) SCC 1 also in Para 106 of the Judgment has been pleased to observe that:

“Para 106 - Another stimulating argument raised in support of preliminary inquiry is that mandatory registration of FIRs will lead to arbitrary arrest, which will directly be in contravention of Article 21 of the Constitution.”

3. That the admitted brief facts of the case are that a Fauti Report was recorded in G.D. in P.S. Thakurganj on 08/01/2012 by one Sri Kallu informing the Police that his sister late Smt. Bitan had informed him that she was not feeling well & asked to supply some medicines to him. Thereafter, informant father and mother (Nasruddin & Rihana respectively) visited the home of their daughter then they saw that there was lock on the door and after breaking the door, they saw that their daughter Bitan was on the floor in the dead condition. Information is being given and to take necessary action. These are the allegations which have been recorded in the case diary.

4. That though there was nothing in the said Fauti Report containing allegation of commissioning of any offence or the applicant’s name, the SHO? Sri Sashi Kant Yadav decided to hold preliminary enquiry and came to the conclusion that the applicant has assassinated his wife Smt. Bitan, where after the so called Charge Sheet dated 06/02/2013 (Annexure No. 1) was submitted to the Magistrate, without lodging F.I.R., further also allot FIR No/ Case Crime No very arbitrarily.

5. That surprisingly, the Charge Sheet gives Crime Case No. 641/112 dated 12/11/2012 without registering an FIR. It has been admitted by the said I.O. Sri Sashi Kant Yadav, in his cross-examination made before the trial Court on 03/02/2020, that no F.I.R has been registered in the case & the prosecution has proceeded on the basis of Fauti Report only The true copy of his statement has been filed as Annexure No. 1 to the applicant’s supplementary affidavit dated 01/05/2023.

6. That it is most respectfully submitted that without registering an FIR. n