Police empowered to investigate not enquiry

The instances of the police conducting enquiry into certain matter appear frequently in media. Particularly when some high-profile personality or organisation is connected in this. The common man always thinks is everybody equal before the law or some are equal and some are more equal! The Supreme Court (SC) already settled the law on this subject and decided that the police officer has no discretion to conduct a preliminary enquiry, if he receives information about cognizable offence.

The Apex Court judgement is popular as Lalita Kumari case Judgement. The SC's direction came on a reference by three judges' bench in February 2012. A matter of kidnapping was under cosideration before them. The mother of the victim had challenged the refusal of the local police to register an FIR against the kidnappers on her complaint. The police pressed that though FIR is not registered, the enquiry was being conducted. Police was well within its right to conduct enquiry. The Apex Court, after hearing various counsels and adverting to all the conflicting decisions extensively, referred the matter to a Constitution Bench comprising CJI P Sathasivam, Justices B S Chauhan, Ranjana Desai, Ranjan Gogoi and S A Bobde was formed for this.

The important issue which was considered by the Constitutional Bench was whether "a police officer is bound to register an FIR upon receiving information relating of a cognizable offence under Section 154 of the CrPC or the police officer has power to conduct a "preliminary inquiry" in order to test the veracity of such information before registering the same?”

After hearing the contentions and arguments as well as due interpretation of statute in this regard, the Apex Court held regarding registration or non-registration that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. It is made clear that the police cannot enquire into veracity of information.

It is also cleared that such a preliminary inquiry should be time-bound and not take more than one week. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. The Constitutional Bench concluded that registration of FIR is mandatory, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

The SC has cleared the fear of arrest in crime registered as FIR doesn’t mean that arrest is must. It has to be in accordance with the CrPC.

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 conducted can be matrimonial/family disputes, commercial offences, medical negligence, corruption cases, cases where there is abnormal delay in reporting without satisfactorily explaining the reasons for delay.

While ensuring and protecting the rights of the accused and the complainant, the SC has decided that a preliminary inquiry must be completed within seven days.

All information, whether resulting in registration of FIR or leading to an inquiry, must be compulsorily and meticulously reflected in the said diary including the decision to conduct a preliminary inquiry.

If a police person in preliminary inquiry finds that complaint does not merit registration of FIR, then it shall be recorded and a copy of the closure report shall be given to the first informant in seven days.

The SC has also made it a point that failure to comply with these directions would entail disciplinary action against erring investigating officer.

In this context, the Delhi police deserve appreciation in ToolKit case. They registered FIR, collected evidence and obtained arrest warrant from the Court. However, the Maharashtra police is engaged in inquiry without FIR in matters like celebrity Tweets, bogus Twitter handles, WhatsApp chats and even allegations of sexual harassment for months together. What is expected is, registration of FIR and investigation if at all cognizable offence is disclosed from information.

(The writer is retired police officer and General Manager, Public Relations, Lokmat Media).