WHETHER THE PRELIMINARY INQUIRY SHOULD BE MANDATORY OR DISCRETIONARY?
For deciding this, we have arguments from both sides because choosing any one of them will expose us to the disadvantages of not choosing the other option.
Firstly, we will discuss why it should be discretionary?
When the provisions of sections 41, 57, 156, 157, 159, 167, 190, 200, and 202 of the Code of Criminal Procedure [“the code”] are read together, it can be observed that Section 154(3) of the Code enables any person whose complaint is denied to be registered as an FIR by the police officer, to approach the higher police officers to get their complaint registered as an FIR and in such cases, the higher police officer will have all the powers of registering an FIR and directing the investigation into the matter. Apart from this, he can also move to the concerned Magistrate of the area by making a complaint under Section 190 of the Code.
Therefore, the law itself has provided adequate remedies against non-registration of an FIR and to investigate cognizable offenses, is suggestive of legislative intent that the police officer is not bound to record FIR just because the offense is cognizable if he doubts the veracity of the complaint or the contents of the complaint. Also, the word “shall” used in the statute does not always mean the absence of any discretion in the matter. To support this, the Supreme Court has preferred the rule of purposive interpretation to the rule of literal interpretation in various cases.
The police do have a statutory duty to “register” every information relating to the commission of a cognizable offense. But the police also have the statutory right and duty to investigate the facts and circumstances of the case where the cognizable offense was suspected and to submit the report of such investigation to the Magistrate. the Hon’ble Supreme Court in the case of Lalita Kumari said: “The statutory rights of the police were neither restricted by any power of superintendence or interference in the Magistrate, nor any sanction was required from a Magistrate to empower the Police to investigate into a cognizable offense.” This position in law was well-established in the case of King-Emperor v. Khwaja Nazir Ahmad the Privy Council observed that in appropriate cases, it would be appropriate for a police officer that on receipt of a complaint of a cognizable offense, he should first satisfy himself that the prima facie allegations leveled against the accused in the complaint are credible. But the definition of appropriate cases is not given, leaving a loophole prone to misuse.
Another argument can be that the provisions have to be read in the light of the principle of malicious prosecution and the fundamental rights guaranteed under Articles 14, 19, and 21. We can say that every citizen has a right not to be subjected to malicious prosecution and every police officer has an in-built duty under Section 154 to ensure that an innocent person is not falsely implicated in a criminal case. If even though the police officer is not prima facie satisfied, as regards commission of a cognizable offense and proceeds to register an FIR and carries out an investigation, it would result in the liberty of a citizen in danger. Therefore, preliminary inquiry before registration of FIR should be discretionary. One way of keeping a check on authorities with such powers is by documenting every action of theirs, ensuring that there is no scope for misuse.
WHY SHOULD IT NOT BE DISCRETIONARY?
However, historical experiences have thrown up cases from both the sides where the grievance of the victim/informant of non-registration of valid FIRs was not heard as well as that of the accused of being unnecessarily hassled and investigated on false charges.
In construing a statutory provision, the first rule of construction is the literary construction. Does this mean all that we must see at the very outset is what does that provision say? If the provision is clear and the legislative intent is unambiguous, we need not use the other rules of construction of statutes. The other rules of construction of statutes are used only when the legislative intention is not clear…” The above decision was followed by this Court in B. Premanand and after referring the above-said observations in the case of Hiralal Rattanlal.
The word ‘complaint’ which occurred in the previous two Codes of 1861 and 1872 was replaced with ‘information’ was used in the Codes of 1882 and 1898 which is currently used in Sections 154, 155, 157 and 190(c). Thus, it is clear that the condition which is indispensable for recording a first information report is that there must be information and that information must disclose a cognizable offense.
In the case of Lalita Kumari v. State of UP, it was finally laid down 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 offenses
- 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 the delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
This was again partially contrasted by Hon’ble Supreme Court in 2019, in case of State of Telangana v. Mangipet Sarveshwar Reddy where it was held that the preliminary inquiry warranted in Lalita Kumari is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. Therefore, any formal and informal collection of information which discloses a cognizable offense to the satisfaction of the police is sufficient.
ANALYSIS AND SOLUTION SUGGESTED
We can say that there is an absence of a conclusive stance of the supreme court on the topic. The list of the offenses where inquiry is mandatory is not exhaustive and the offenses that are present in that list are also not mandatory and can differ from case to case. Therefore, the law in force is very flexible and gives the discretionary powers in the hands of the police, to decide when they will take an FIR and when they won’t. We cannot give this discretionary power to the police seeing the number of cases we have against police corruption.
The main problem is striking a balance between the right of the victim/informant to file an FIR and the right of a citizen against malicious prosecution. Because one’s rights will have to suffer because of others. If we give too much discretion to police officers, then it might get misused by the policemen and if not misused by them, their judgment can be clouded, they cannot be expected to have a judge like a judgement of cases, so there are high chances of errors. But these errors can be corrected by filing an application to the senior officer or the magistrate, therefore there is less chance of a person not getting his FIR filed in a genuine case.
In Lalita Kumari the court failed to see that if they make it mandatory to conduct a preliminary inquiry in some cases, list of which is not exhaustive, this can be misused by the police, the political powers might influence the preliminary inquiry and the policemen may refuse to file an FIR recording the fake reasons saying that they did not find the statements of the informant truthful, and therefore we are not filing. So, we should not make it mandatory to conduct a preliminary inquiry.
But it will give rise to the other problem on the other end, which is, if we directly file an FIR in all the cases without any inquiry, the misuse of that would be easy. In Indian society, even a policeman entering someone’s house, even for investigation, lowers down the person’s prestige in society. If a person is taken into custody even for the investigation, this is enough to lower his reputation in society, not to mention the mental and physical distress he goes through and the loss of time. There are a plethora of problems from both sides, therefore it is very important to strike a balance between both.
We are of the view that the police should not be given any discretion and there should be no preliminary inquiry before FIR in any case. Once the FIR has been filed, then the police can make a preliminary inquiry before starting the investigation because the filing of an FIR is the most important thing as it is the first thing a person would do, if he is denied that, then he has no other option, he is denied justice. But to prevent misuse of this, to prevent malicious prosecution, police should not start an investigation or arrest the person before making a preliminary inquiry. We cannot strip someone of their rights just because they are prone to misuse. And in the case of cognizable offenses, we can directly investigate just after FIR, skipping the inquiry. So that there is a balance between both the aspects.
Mudit Burad (National Law University, Jodhpur)
Ashima Joshi (National Law University, Odisha)
 Chairman Board of Mining Examination and Chief Inspector of Mines and Another v. Ramjee (1977) 2 SCC 256; Lalit Mohan Pandey v. Pooran Singh (2004) 6 SCC 626; Prativa Bose v. Kumar Rupendra Deb Raikat (1964) 4 SC.
 Lalita Kumari v. State of U.P, 2014 2 SCC 577.
 B. Premanand and Ors. v. Mohan Koikal and Others (2011) 4 SCC 266.
 M/s Hiralal Rattanlal Etc. Etc. v. State of U.P. and Anr. Etc. Etc. (1973) 1 SCC 216.
 State Of Haryana And Ors vs Ch. Bhajan Lal And Ors 1992 AIR 604.
 Lalita Kumari v. State of U.P, 2014 2 SCC 577.
 State of Telangana v. Mangipet Sarveshwar Reddy (2019) SCC OnLine SC 1599; accessible at:
https://main.sci.gov.in/supremecourt/2019/11234/11234_2019_9_1507_18908_Judgement_06-Dec-2019.pdf [last accessed 09:05 a.m., 23rd June 2020]