# LALITA KUMARI v. GOVERNMENT OF U.P. & OTHERS

- **Citation:** [2012] 1 S.C.R. 1066
- **Court:** Supreme Court of India
- **Decided:** 2012-02-27
- **Bench:** Dalveer Bhandari, T.S. Thakur, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lalita-kumari-v-government-of-u-p-others-27991
- **Pages:** 52

## Headnote

CODE OF CRIMINAL PROCEDURE, 1973:
s. 154 - Information in cognizable cases - Officer in
charge of police station concerned - Obligation of, to register
the FIR - The issue: whether u/s 154 Cr.P.C., a police officer
is bound to register an FIR when a cognizable offence is made
0 out or he (police officer) has an option, discretion or latitude
of conducting some kind of preliminary enquiry before
registering the FIR - Referred to Constitution Bench.
Writ Petition (Crl.) No. 68 of 2008 was filed praying for
a writ in the nature of habeas corpus to produce a girl
E aged about six years who had been kidnapped from her
house and in spite of her father complaining of the
incident to the police station concerned, his FIR was
registered after one month from the date of the incident.
Even after registration of the FIR against the named
F persons, the police did not take any action to trace the
minor girl.
In the instant matters, the issue for consideration
before the Court was: "whether under Section 154
G Cr.P.C., a police officer is bound to register an FIR when
a cognizable offence is made out or he (police officer) has
an option, discretion or latitude of conducting some kind
of preliminary enquiry before registering the FIR?"
The Court passed a comprehensive order showing
H
1066
LALITA KUMAR I v. GOVERNMENT OF U.P.
1067
its concern in respect of the matter of non-registration of A
FIR in a case of cognizable offence and directed notice
to issue to Chief Secretaries of the States and
Administrators of the Union Territories. Consequently,
various State Governments and Union Territories filed
comprehensive affidavits and advanced divergent B
arguments as regards the interpretation of s.154 of the
Code of Criminal Procedure, 1973.
Referring the matters to a Constitution Bench, the
Court
HELD: 1.1 On a careful analysis of various
judgments delivered by this Court in the last several
decades, it is quite evident that different Benches of this
Court have taken divergent views in different cases. In
c
the instant case also, after this Court's notice, the Union
D
· of India, the States and the Union Territories have taken
or expressed totally divergent views about the
interpretation of s.154 Cr.P.C. This Court also carved out
a special category in the case of medical doctors where
preliminary enquiry had been postulated before
E
registering an FIR. It has been submitted that the CBI
Manual also envisages some kind of preliminary enquiry
before registering the FIR. The issue which has arisen
for consideration in these cases is of great public
importance. [Para 108-111] [1116-F-H; 1117-A-D]
F
1.2 In view of the divergent opinions in a large
number of cases decided by this Court, it has become
extremely important to have a clear enunciation of law
and adjudication by a larger Bench of this Court for the
benefit of all concerned - the courts, the investigating G
agencies and the citizens. Consequently, these matters
be referred to a Constitution Bench of at least five Judges
of this Court for an authoritative judgment. [Para 112113] [1117 -D-F]
H
1068
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A
State of M.P. v. Santosh Kumar 2006 (3) Suppl. SCR
548 = 2006 (6) SCC 1; Dr. Suresh Gupta v. Govt. of NCT of
Delhi and Another 2004 (3) Suppl. SCR 323 = 2004(6) SCC
422; Aleque Padamsee and Others v. Union of India and
Others 2007 (8) SCR 390 = (2007) 6 SCC 171; Ramesh
B Kumari v. State (NCT of Delhi) and Others 2006 (2) SCR 403
= (2006) 2 SCC 677; Hiralal Rattan/al etc.etc. v. State of U.P.
and Another etc.etc. 1973 (2) SCR 502 =1973(1) SCC 216;
B. Premanand and Others v. Mohan Koikal and Others 2011
(3) SCR 932 = (2011) 4 SCC 266; Govindlal Chhf)ganla/
c Patel v. Agricultural Produce Market Committee, Godhra and
Others 1976 (1) SCR 451 = 1975 (2) SCC 482; Mis Amar
Nath Om Prakash and others etc. v. State of Punjab and
Others 1985 (2) SCR 72 = (1985) 1 SCC 345; Hameed
Joharan (dead) and others v. Abdul Salam (dead) by Lrs. and
D Others 2001 (1) Suppl. SCR

## Text

_Characters 0–39,808 of 99,265. This is a partial read: ask again with offset=39808 for what follows._

A
B
c
[2012] 1 S.C.R. 1066
LALITA KUMAR!
v.
GOVERNMENT OF U.P. & OTHERS
(Writ Petition (Criminal) No. 68 of 2008)
FEBRUARY 27, 2012
[DALVEER BHANDARI, T.S. THAKUR AND
DIPAK MISRA, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
s. 154 - Information in cognizable cases - Officer in
charge of police station concerned - Obligation of, to register
the FIR - The issue: whether u/s 154 Cr.P.C., a police officer
is bound to register an FIR when a cognizable offence is made
0 out or he (police officer) has an option, discretion or latitude
of conducting some kind of preliminary enquiry before
registering the FIR - Referred to Constitution Bench.
Writ Petition (Crl.) No. 68 of 2008 was filed praying for
a writ in the nature of habeas corpus to produce a girl
E aged about six years who had been kidnapped from her
house and in spite of her father complaining of the
incident to the police station concerned, his FIR was
registered after one month from the date of the incident.
Even after registration of the FIR against the named
F persons, the police did not take any action to trace the
minor girl.
In the instant matters, the issue for consideration
before the Court was: "whether under Section 154
G Cr.P.C., a police officer is bound to register an FIR when
a cognizable offence is made out or he (police officer) has
an option, discretion or latitude of conducting some kind
of preliminary enquiry before registering the FIR?"
The Court passed a comprehensive order showing
H
1066
LALITA KUMAR I v. GOVERNMENT OF U.P.
1067
its concern in respect of the matter of non-registration of A
FIR in a case of cognizable offence and directed notice
to issue to Chief Secretaries of the States and
Administrators of the Union Territories. Consequently,
various State Governments and Union Territories filed
comprehensive affidavits and advanced divergent B
arguments as regards the interpretation of s.154 of the
Code of Criminal Procedure, 1973.
Referring the matters to a Constitution Bench, the
Court
HELD: 1.1 On a careful analysis of various
judgments delivered by this Court in the last several
decades, it is quite evident that different Benches of this
Court have taken divergent views in different cases. In
c
the instant case also, after this Court's notice, the Union
D
· of India, the States and the Union Territories have taken
or expressed totally divergent views about the
interpretation of s.154 Cr.P.C. This Court also carved out
a special category in the case of medical doctors where
preliminary enquiry had been postulated before
E
registering an FIR. It has been submitted that the CBI
Manual also envisages some kind of preliminary enquiry
before registering the FIR. The issue which has arisen
for consideration in these cases is of great public
importance. [Para 108-111] [1116-F-H; 1117-A-D]
F
1.2 In view of the divergent opinions in a large
number of cases decided by this Court, it has become
extremely important to have a clear enunciation of law
and adjudication by a larger Bench of this Court for the
benefit of all concerned - the courts, the investigating G
agencies and the citizens. Consequently, these matters
be referred to a Constitution Bench of at least five Judges
of this Court for an authoritative judgment. [Para 112113] [1117 -D-F]
H
1068
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A
State of M.P. v. Santosh Kumar 2006 (3) Suppl. SCR
548 = 2006 (6) SCC 1; Dr. Suresh Gupta v. Govt. of NCT of
Delhi and Another 2004 (3) Suppl. SCR 323 = 2004(6) SCC
422; Aleque Padamsee and Others v. Union of India and
Others 2007 (8) SCR 390 = (2007) 6 SCC 171; Ramesh
B Kumari v. State (NCT of Delhi) and Others 2006 (2) SCR 403
= (2006) 2 SCC 677; Hiralal Rattan/al etc.etc. v. State of U.P.
and Another etc.etc. 1973 (2) SCR 502 =1973(1) SCC 216;
B. Premanand and Others v. Mohan Koikal and Others 2011
(3) SCR 932 = (2011) 4 SCC 266; Govindlal Chhf)ganla/
c Patel v. Agricultural Produce Market Committee, Godhra and
Others 1976 (1) SCR 451 = 1975 (2) SCC 482; Mis Amar
Nath Om Prakash and others etc. v. State of Punjab and
Others 1985 (2) SCR 72 = (1985) 1 SCC 345; Hameed
Joharan (dead) and others v. Abdul Salam (dead) by Lrs. and
D Others 2001 (1) Suppl. SCR 469 = (2001) 7 SCC 573; The
State of Uttar Pradesh v. Bhagwant Kishore Joshi 1964 SCR
71 =AIR 1964 SC 221; H.N. Rishbud and Jnder Singh v. The
State of Delhi 1955 SCR (1) 1150; Damodar v. State of
Rajasthan 2003 (3) Suppl. SCR 904 = 2004(12) SCC 336;
E Ramsinh Bavaji Jadeja v. State of Gujarat 1994 (2) SCR
239 1994 (2) SCC 685; Binay Kumar Singh v. The State of
Bihar 1996 (8) Suppl. SCR 225 = 1997(1) sec 283;
Madhu Bala v. Suresh Kumar and Others 1997 (3) Suppl.
SCR 32 = 1997 (8) SCC 476; Hallu and others v. State of
Madhya Pradesh 1974 (3) SCR 652 = 1974 (4) SCC 300;
F Rajinder Singh Katoch v. Chandigarh Administration and
others 2001 (11) SCR 246 = 2001 (1 O) sec 69;
Superintendent of Police, CBI and Others v. Tapan Kumar
Singh 2003 (3) SCR 485 = AIR 2003 SC 4140; State of
Haryana and Others v. Bhajan Lal and Others 1990 (3)
G Suppl. SCR 259 = 1992 Suppl. (1) SCC 335; Tarachand
and Another v. State of Haryana 1971 (2) SCC 579; Sandeep
Rammilan Shukla v. State of Maharashtra and Others 2009
(1) Mh.L.J. 97; Sakiri Vasu v. State of Uttar Pradesh and
Others 2007 (12) SCR 1100 = 2008 (2) SCC 409; Nasar Ali
H v. State of Uttar Pradesh 1957 SCR 657; Union of India and
LALITA KUMARI v. GOVERNMENT OF U.P.
1069
Another v. WN. Chadha 1992 (3) Suppl. SCR 594 = 1993
A
(Suppl.) 4 SCC 260; State of West Bengal v. S.N. Basak 1963
(2) SCR 52; Rai Sahib Ram Jawaya Kapur and Others v.
State of Punjab 1955 (2) SCR 225; State (Anti-Corruption
Branch), Govt. of NCT of Delhi and Another v. Dr. R. C. Anand
and Another 2004 (1) Suppl. SCR 161 = 2004 (4) SCC 615;
B
Maneka Gandhi v. Union of India and Another 1978 (2) SCR
621 = 1978 (1) SCC 248; S.M.D. Kiran Pasha v. Government
of Andhra Pradesh and Others 1989 (2) Suppl. SCR 105 =
1990 (1) SCC 328; P. T. Rajan v. T.P.M. Sahir and Others
2003 (4) Suppl. SCR 84 = 2003(8) SCC 498; Shivjee Singh c
v. Nagendra Tiwary and Others 2010 (7) SCR 667 = 2010 (7)
SCC 578; Sarbananda Sonowa/ (II) etc. v. Union of India 2006
(10) Suppl. SCR 167 = 2007 (1) SCC 174; Animireddy
Venkata Ramana and Others v. Public Prosecutor, High
Court of Andhra Pradesh 2008 (3) SCR 1078 = 2008 (5) SCC
D
368; Uma Shankar Sitani v. Commissioner of Police, Delhi
and Ors. 1996 (11) SCC 714; Preeti Gupta and Another v.
State of Jharkhand and Another 2010 (9) SCR 1168 =
(2010) 7 SCC 667; Francis C. Mullin v. Administrator, Union
Territory of Delhi 1981 (2) SCR 516 =1981 (1) SCC 608;
Mona Panwar v. High Court of Judicature of Allahabad 2011
E
(2) SCR 413 = (2011) 3 SCC 496; Apren Joseph alias current
Kunjukunju and Others v. State of Kera/a 1973 (2) SCR 16
= 1973 (3) SCC 114; State of Maharashtra and Others v.
Sarangdharsingh Shivdassingh Cha van and Another (2011)
1 SCC 577; Sainik Motors, Jodhpur and Others v. State of F
Rajasthan 1962 SCR 517 = AIR 1961 SC 1480; State of
Uttar Pradesh and Others v. Babu Ram Upadhya 1961 SCR
679 = AIR 1961 SC 751; State of Madhya Pradesh v. Mis
Azad Bhorat Finance Co. and Another 1966 SCR 473 =AIR
1967 SC 276; Parkash Singh Badal and Another v. State of G
Punjab and Others 2006 (10) Suppl. SCR 197 = (2007) 1
SCC 1; P. Sirajuddin etc. v. State of Madras etc. 1970 (3)
SCR 931 = 1970 (1) SCC 595; Sevi and Another etc. v. State
of Tamil Nadu and Another 1981 (Suppl.) SCC 43 - referred
to.
H
1070
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A
Emperor v. Khwaza Nazim Ahmad AIR 1945 PC 18 -
B
referred to.
Case Law Reference:
2007 (8) SCR 390
2006 (2) SCR 403
1973 (2) SCR 502
2011 (3) SCR 932
C
1976 (1) SCR 451
referred to
referred to
referred to
referred to
referred to
referred to
1985 (2) SCR 72
2001 (1) Suppl. SCR 469
referred to
D
AIR 1945 PC 18
referred to
1964 SCR 71
referred to
1955 SCR (1) 1150
referred to
E
2003 (3) Suppl. SCR 904
referred to
1994 (2) SCR 239
referred to
1996 (8) Suppl. SCR 225
referred to
1997 (3) Suppl. SCR 32
referred to
F
1974 (3) SCR 652
referred to
2007 (11) SCR 246
referred to
2003 (3) SCR 485
referred to
G
1990 (3) Suppl. SCR 259
referred to
1971 (2) sec 579
referred to
2009 (1) Mh.L.J. 97
referred to
H
2007 (12) SCR 1100
referred to
Para 10
Para 10
Para 13(d)
Para 13(d)
Para 13(e)
Para 13(e)
Para 13(e)
Para 14
Para 15
Para 16
. Para 19
Para 19
Para 22
Para 24
Para 27
Para 28
Para 31
Para 35
Para 46
Para 46
Para 46
LALITA KU MARI v. GOVERNMENT OF U.P.
1071
1957 SCR 657
referred to
1992 (3) Suppl. SCR 594 referred to
1963 (2) SCR 52
referred to
2006 (3) Suppl. SCR 548
referred to
2004 (3) Suppl. SCR 323
referred to
1955 (2) SCR 225
referred to
2004 (1) Suppl. SCR 161
referred to
1978 (2) SCR 621
referred to
1989 (2) Suppl. SCR 105
referred to
2003 (4) Suppl. SCR 84
referred to
2010 (7) SCR 667
referred to
2006 (10) Suppl. SCR 167
referred to
2008 (3) SCR 1078
referred to
1996 (11) sec 714
referred to
2010 (9) SCR 1168
1981 (2) SCR 516
2011 (2) SCR 413
1973 (2) SCR 16
(2011) 1 sec 577
1962 SCR 517
1961 SCR 679
1966 SCR 473
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
2006 (10) Suppl. SCR 197 referred to
Para 46
Para 46
Para 46
Para 47
Para 47
Para 49
Para 49
Para 50
Para 50
Para 52
Para 52
Para 52
Para 54
Para 63
Para 64
Para 65
Para 71
Para 75
Para 78
Para 85
Para 86
Para 87
Para 96
A
B
c
D
E
F
G
H
1072
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A
1970 (3) SCR 931
1981 (Suppl.) sec 43
referred to
referred to
Para 97
Para 97
B
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 68 of 2008.
Under Article 32 of the Constitution of India.
WITH
Crl. A. No. 1410 of 2011, SLP (Crl.) No. 5200 of 2009 & 5986
of 2010 & Contempt Petition (C) No. arising out of D. 26722
C of 2008 in W.P. (Crl.) No. 68 of 2008.
A. Mariarputham, A.G. H.P. Raval, ASG. S.B. Upadhyay,
Shekhar Naphade, T.S. Doabia, Ratnakar Dash, Dr. Manish
Singhvi, S. Gurukrishankumar AAG Mona K. Rajvanshi, B.K.
D Shahi, B.P. Gupta, Ashwani Kumar, P.K. Mittal, Ram Naresh,
Abhijat P. Medh (for Mahalakshmi Balaji & Co.), Debasis
Misra, Dr. Monika Gosain, Aman Vachher, Ashutosh Dubey,
P.N. Puri, Shreenivas Khalap, Anando Mukherjee, Harsh N.
Parekh, Reena Singh, Sadhana Sandhu, Anirudh Sharma, S.
E Dave, Varuna Bhandari Gugnani, B.V. Balaram Das, D.
Bharathi Reddy, Rituraj Biswas, Anil Shrivastav, Deepika
Ghotowar (for Corporate Law Group), Gopal Singh, Manish
Kumar, Atul Jha, Dharmendra Kumar Sinha, A. Subhashini,
HemantikaWahi, Rojalin Pradhan, Suveni Banerjee, Tarjit Singh,
F Kamal Mohan Gupta, Naresh Kumar Sharma, Sunil Fernandes,
Suhass Joshi, Anil Kumar Jha, Chhaya Kumari, S.K. Divakar,
Anitha Shenoy, M.T. George, Kavitha K.T., P.V. Dinesh, Vibha
Datta Makhija, Shubhangi Tuli, Sanjay V. Kharde, Sachin J.
Patil, Ajit Wagh, Asha G. Nair, Khwairkpam Nobin Singh,
G Sapan Biswajit Meitei, Ranjan Mukherjee, S. Bhowmick, S.C.
Ghosh, M.K. Mishael, Edward Belho, K. Enatoli Serna, Amit
Kumar Singh, Priya Hingorani, S. Wasim A. Qadri, B.V.
Balaram Das, Anil Katiyar, Rituraj Biswas, Zaid Ali, Manpreet
Singh, D.S. Mahra, Jana Kalyan Das, Kuldip Singh, R.K.
Pandey, H.S. Sandhu, K.K. Pandey, Mohit Mudgil, Abhinav
H Ramakrishna, lrshad Ahmed, Milind Kumar, Aruna Mathur,
LALITA KUMARI v. GOVERNMENT OF U.P.
1073
Yusuf Khan (for Arputham, Aruna & Co.), Akshat Hansaria, B.
A
Balaji, Gopal Singh, Rituraj Biswas, S.S. Shamshery, Jatinder
Kumar Bhatia, Rajeev Dubey, Kamlendra Mishra, Abhijit
Sengupta, B.P. Yadav, Anima Kujur, Shantanu Bhardwaj, Salish
Vig, Rituraj Biswas, H.S. Sachdeva, V.G. Pragasam, S.J.
Aristotle, Prabu Ramasubramanian, Ramshwar Prasad Goyal,
B
Kuldip Singh, B. Balaji, Subramonium Prasad for the appearing
parties.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. We propose to deal with the
C
abovementioned writ petition, the criminal appeals and the
contempt petition by this judgment. The question of law
involved in these cases is identical, therefore, all these cases
are being dealt with by a common judgment. In order to avoid
repetition, only the facts of the writ petition of Lalita Kumari's
D
case are recapitulated.
2. The petition has been filed before this Court under
Article 32 of the Constitution of India in the nature of habeas
corpus to produce Lalita Kumari, the minor daughter of Bhola
Kamat.
3. On 5.5.2008, Lalita Kumari, aged about six years, went
out of her house at 9 p.m. When she did not return for half an
hour and Bhola Kamat was not successful in tracing her, he filed
a missing report at the police station Loni, Ghaziabad, U.P.
E
F
4. On 11.5.2008, respondent no.5 met Bhola Kamat and
informed him that his daughter has been kidnapped and kept
under unlawful confinement by the respondent nos.6. to 13. The
respondent-police did not take any action on his complaint.
G
Aggrieved by the inaction of the local police, Bhola Kamat
made a representation on 3.6.2008 to the Senior
Superintendent of Police, Ghaziabad. On the directions of the
Superintendent of Police, Ghaziabad, the police station Loni,
H
1074
SUPREME COURT REPORTS
[2012) 1 S.C.R.
A Ghaziabad registered a First Information Report (F.l.R.) No.484
dated 6.6.2008 under Sections 363/366/506/1208 IPC against
the private respondents.
5. Even after registration of the FIR against the private
respondents, the police did not take any action to trace Lalita
8
Kumari. According to the allegation of Bhola Kamat, he was
asked to pay money for initiating investigation and to arrest the
accused persons. Ultimately, the petitioner filed this petition
under Article 32 of the Constitution before this Court.
c
6. This Court on 14.7.2008 passed a comprehensive order
expressing its grave anguish on non-registration of the FIR even
in a case of cognizable offence. The Court also issued notices
to all Chief Secretaries of the States and Administrators of the
Union Territories. In response to the directions of the Court,
o various States and the Union Territories have filed
comprehensive affidavits.
7. The short, but extremely important issue which arises
in this petition is whether under Section 154 of the Code of
Criminal Procedure Code, a police officer is bound to register
E an FIR when a cognizable offence is made out or he has some
latitude of conducting some kind of preliminary enquiry before
registering the FIR.
8. Mr. S.S. Upadhyay, learned senior advocate appearing
F for the petitioner has tried to explain the scheme of Section 154
Cr.P.C. with the help of other provisions of the Act. According
to him, whenever information regarding cognizable offence is
brought to the notice of the SHO, he has no option but to register
the First Information Report.
G
H
9. This Court also issued notice to the learned Attorney
General for India to assist the Court in this matter of general
public importance. Mr. Harish P Raval, the learned Additional
Solicitor General appeared before the Court and made
comprehensive submissions. He also filed written submissions
LALITA KU MARI v. GOVERNMENT OF U.P.
1075
[DALVEER BHANDARI, J.]
which were settled by him and re-settled by the learned
A
Attorney General for India.
10. Learned Additional Solicitor General submitted that the
issue which has been referred to this Court has been decided
by a three-Judge Bench of this Court in the case of Aleque
B
Padamsee and Others v. Union of India and Others (2007) 6
SCC 171. In this case, this Court while referring to the judgment
in the case of Ramesh Kumari v. State (NCT of Delhi) and
Others (2006) 2 SCC 677 in paragraph 2 of the judgment has
observed as under:-
"Whenever cognizable offence is disclosed the police
officials are bound to register the same and in case it is
not done, directions to register the same can be given."
c
11. The State of Gujarat, the respondent in the above case, o
on the facts thereof, contended that on a bare reading of a
complaint lodged, it appears that no offence was made and that
whenever a complaint is lodged, automatically and in a routine
manner an FIR is not to be registered. This Court after
considering Chapter XII and more particularly Sections 154 and
156 held (paragraphs 6 and 7) that "whenever any information
E
is received by the police about the alleged commission of
offence which is a cognizable one, there is a duty to register
the FIR." There could be no dispute on that score as observed
by this Court. The issue referred to in the reference has already
been answered by the Bench of three Judges. The judgment
in Aleque Padamsee and Others (supra) is not referred in the
reference order. It is therefore prayed that the present reference
be answered accordingly.
F
12. It was submitted on behalf of the Union of India that
G
Section 154 (1) provides that every information relating to the
commission of a cognizable offence if given orally, to an officer
incharge of a police station shall be reduced in writing by him
or under his directions. The provision is mandatory. The use
of the word "shall" by the legislation is indicative of the statutory
H
1076
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A intent. In case such information is given in writing or is reduced
in writing on being given orally, it is required to be signed by
the persons giving it. It is further provided that the substance
of commission of a cognizable offence as given in writing or
reduced to writing "shall" be entered in a book to be kept by
B such officer in such form as the State Government may
prescribe in this behalf. Sub-section (2) provides that a copy
of such information as recorded in sub-section (1) shall be
given forthwith free of cost to the informant.
C
13. In light of the provisions contained in Section 154 (1)
and the law laid by this Court on the subject, the following
submissions were placed by the Union of India for consideration
of this Court.
(a)
The statutory intention is manifest on a bare reading
D
of provisions of Section 154(1) to the effect that
when an officer incharge of a police station to
whom information relating to commission of
cognizable·offence has been disclosed, he has no
discretion save and except to reduce the said
E
information in writing by him or under his direction.
F
G
H
(b)
Section 154(1) does not have ambiguity and is in
clear terms.
(c)
The use of expression "shall" clearly manifest the
mandatory statutory intention.
(d)
In construing a statutory provision, the first and the
foremost rule of construction is the literal
construction. · It is submitted that all that the Court
has to see at the very outset is what does that
provision say. If the provision is unambiguous and
if from that provision, the legislative intent is clear,
the Court need not call into it the other rules on
construction of statutes. [Para 22 of Hirata!
Rattan/a/ etc.etc. v. State of U.P. and Another
LALITA KUMARI v. GOVERNMENT OF U.P.
1077
(e)
(f)
[DALVEER BHANDARI, J.]
etc.etc. 1973(1) SCC 216]. This judgment is
A
referred to and followed in a recent decision of this
Court in B. Premanand and Others v. Mohan
Koikal and Others (2011) 4 SCC 266 paras 8 and
9. It is submitted that the language employed in
Section 154 is the determinative factor of the
B
legislative intent There is neither any defect nor
any omission in words used by the legislature. The
legislative intent is clear. The language of Section
154(1 ), therefore, admits of no other construction.
The use of expression "shall" is indicative of the
C
intention of the legislature which has used a
language of compulsive force. There is nothing
indicative of the contrary in the context indicating a
permi::;sive interpretation of Section 154. It is
submitted that the said Section ought to be
D
construed as preemptory. The words are precise
and unambiguous (Govindlal Chhaganlal Patel v.
Agricultural Produce Market Committee, Godhra
and Others 1975 (2) SCC 482). It is submitted that
it is settled law that judgments of the courts are not
E
to be construed as statutes [para 11 of three-Judge
Bench decision of this court in the case of Mis
Amar Nath Om Prakash and others etc. v. State
of Punjab and Others (1985) 1 SCC 345]. The
abovesaid decision is followed by a judgment of
F
this Court in the case of Hameed Joharan (dead)
and others v. Abdul Salam (dead) by Lrs. and
Others (2001) 7 sec 573.
The provision of Section 154(1) read in light of
G
statutory scheme do not admit of conferring any
discretion on the officer in charge of the police
station of embarking upon an preliminary enquiry
prior to registration of an FIR A preliminary enquiry
is a term which is alien to the Code of Criminal
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Procedure, 1973 which talks of (i) investigation (ii)
inquiry and (iii) trial. These terms are definite
connotations having been defined under Section 2
of the Act.
(g)
The concept of preliminary enquiry as contained in
Chapter IX of the CBI (Crime) Manual, first
published in 1991 and thereafter updated on
15.7.2005 cannot be relied upon to import the
concept of holding of preliminary enquiry in the
scheme of the Code of Criminal Procedure.
(h)
The interpretation of Section 154 cannot be
depended upon a Manual regulating the conduct of
officers of an organization, i.e., CBI.
(i)
A reference to para 9.1. of the said Manual would
show that preliminary enquiry is contemplated only
when a complaint is received or information is
availa:Jle which may after verification as enjoined
in the said Manual indicates serious misconduct on
the part of the public servant but is not adequate to
justify registration of a regular case under provisions
of Section 154 Cr.P.C. Such preliminary inquiry as
referred to in para 9.1 of the CBI Manual as also
to be registered after obtaining approval of the
competent authority. It is submitted that these
provisions cannot be imported into the statutory
scheme of Section 154 so as to provide any
discretion to a police officer in the matter cf
registration of an FIR.
0)
The purpose of registration of an FIR are manifold
-that is to say
(i)
To reduce the substance of information disclosing
commission of a cognizable offence, if given orally,
into writing
LALITA KUMAR! v. GOVERNMENT OF U.P.
1079
[DALVEER BHANDARI, J.]
(ii)
if given in writing to have it signed by the
A
complainant
(iii)
to maintain record of receipt of information as
regards commission of cognizable offences
(iv)
to initiate investigation on receipt of information as
regards commission of cognizable offence
(v)
to inform Magistrate forthwith of the factum of the
information received.
14. Reference has also been made to the celebrated
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judgment of the Privy Council in the case of Emperorv. Khwaza
Nazim Ahmad AIR 1945 PC 18 in which it is held that for the
receipt and recording of an information, report is not a
condition precedent to the setting in motion of a criminal
0
investigation. It is further held, that no doubt, in the great majority
of cases criminal prosecution are undertaken as a result of the
information received and recorded in this way. (As provided
in Sections 154 to 156 of the earlier Code). It is further held
that there is no reason why the police, if in possession through
their own knowledge or by means of credible though informal
E
intelligence which genuinely leads them to the belief that a
cognizable offence has been committed, should not of their own
motion undertake an investigation into the truth of the matters
alleged. It is further held that Section 157 of the Code when
directing that a police officer, who has a reason to suspect from
F
information or otherwise, that an offence which he is
empowered to investigate under Section 156 has been
· committed, he shall proceed to investigate the facts and
circumstances of the case. It is further held in the said judgment
that, in truth the provisions as to an information report
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(commonly called a First Information Report) are enacted for
other reasons. Its object is to obtain early information of
alleged criminal activity, to record the circumstances before
there is time for them to be forgotten or embellished, and it has
to be remembered that the report can be put in evidence when
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A the informant is examined, if it is desired to do ~o. It is further
held in the said judgment that there is a statutory right on part
of the police to investigate the circumstances of an alleged
cognizable crime without requiring any authority from the judicial
authorities.
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15. On behalf of the Union of India reference was made
to the judgment of this Court delivered in The State of Uttar
Pradesh v. Bhagwant Kishore Joshi AIR 1964 SC 221 wherein
it has been held vide para 8 that Section 154 of the Code
prescribed the mode of recording the information received
C orally or in writing by an officer incharge of a police station in
respect of commission of a cognizable offence. Section 156
thereof authorizes such an officer to investigate any cognizable
offence prescribed therein. Though, ordinarily investigation is
undertaken on information received by a police officer, the
D receipt of information is not a condition precedent for
investigation.
16. It is further held that Section 157 prescribes the
procedure in the matter of such an investigation which can be
E initiated either on information or otherwise. It is also held that
it is clear from the said provision that an officer in charge of a
police station can start investigation either on information or
otherwise. The judges in the said judgment referred to a
decision of this Court in the case .of H.N. Rishbud and lnder
F Singh v. The State of Delhi 1955 SCR (1) 1150 at pp.115758 that the graphic description of the stages is only a
restatement of the principle that a vague information or an
irresponsible rumour would not by itself constitute information
within the meaning of Section 154 of the Code or the basis of
G an investigation under Section 157 thereof. The said case was
in respect of an offence alleged under Prevention of Corruption
Act, 1947. The said case was under the old Code which did
not define the term 'investigation' (paragraph 18 of the
concurring judgment of Justice Mudholkar at page 226). It is
also observed that the main object of investigation mean to
H
. LALITA KUMARI v. GOVERNMENT OF U.P.
1081
[DALVEER BHANDARI, J.]
bring home the offence to the offender. The essential part of
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the duty of an investigating officer in this connection is, apart
from arresting the offender, to collect all material necessary for
establishing the accusation "against" the offender.
17. The following observations in the concurring judgment
8
of Bhagwant Kishore Joshi (supra) were found in paragraph
18:
"In the absence of any prohibition in the Code, express or
implied, I am of opinion that it is open to a Police Officer
to make preliminary enquiries before registering an
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offence and making a full scale investigation into it. No
doubt, s. 5A of the Prevention of Corruption Act was
enacted for preventing harassment to a Government
servant and with this object in view investigation, except
with the previous permission of a Magistrate, is not
D
permitted to be made by an officer below the rank of a
Deputy Superintendent of Police. Where however, a Police
Officer makes some preliminary enquiries, does not arrest
or.even question an accused or question any witnesses
but merely makes a few discreet enquiries or looks at
E
some documents without making any notes, it is difficult
to visualise how any possible harassment or even
embarrassment would result therefrom to the suspect or
the accused person."
18. In case of H.N. Rishbud (supra}, in the case under the
F
Prevention of Corruption Act, 1947, it is observed as under:-
"lnvestigation usually starts on information relating to the
commission of an offence given to an officer in charge of
a police station and recorded under section 154 of the
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Code. If from information so received or otherwise, the
officer in charge of the police station has reason to
suspect the commission of an offence, he or some other
subordinate officer deputed by him, has to proceed to
the spot to investigate the facts and circumstances of the
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case and if necessary to take measures for the discovery
and arrest of the offender."
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It is further held :-
"Thus
investigation
primarily consists in the
ascertainment of the facts and circumstances of the case.
By definition, it includes "all the proceedings under the
Code for the collection of evidence conducted by a police
officer".
c It is further held in the said judgment that :
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'Thus, under the Code investigation consists generally
of the following steps:(1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the case,
(3) Discovery
and arrest of the suspected offender,
(4) Collection of evidence relating to the commission of
the offence which may consist of (a) the examination of
various persons (including the accused) and the reduction
of their statements into writing, if the officer thinks fit, (b)
the search of places of seizure of things considered
necessary for the investigation and to be produced at the
trial, and (5) Formation of the opinion as to whether on the
material collected there is a case to place the accused
before a Magistrate for trial and if so taking the necessary
steps for the same by the filing of a charge-sheet under
section 173."
19. It was further submitted that this Court in the case of
Damodar v. State of Rajasthan reported in 2004(12) SCC 336
referred to the observations of the judgment of this Court
G rendered in case of Ramsinh Bavaji Jadeja v. State of Gujarat
1994 (2) sec 685 and observed that the question as to at what
stage the investigation commence has to be considered and
examined on the facts of each case especially when the
information of alleged cognizable offence has been given on
H telephone. The said case deals with information received on
LALITA KUMAR I v. GOVERNMENT OF U.P.
1083
[DALVEER BHANDARI, J.]
telephone by an unknown persor.. In paragraph 10 it is
A
observed thus "in order to constitute the FIR, the information
must reveal commission of act which is a cognizable offence."
20. It is further observed in paragraph 11 in the case of
Damodar (supra) that in the context of the facts of the said case,
that any telephonic information about commission of a
cognizable offence, if any, irrespective of the nature and details
B
of such information cannot be treated as an FIR. It is further
held that if the telephonic message is cryptic in nature and the
officer incharge proceeds to the place of occurrence on the
basis of that information to find out the details of the nature of
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the offence, if any, then it cannot be said that the information
which had been received by him on telephone shall be deemed
to be an FIR.
21. It is also observed that the object and purpose of giving
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such telephonic message is not to lodge an FIR, but to make
the officer incharge of the police station reach the place of
occurrence. It is further held that if the information given on
telephone is not cryptic and on the basis of that information the
officer incharge is prima facie satisfied about commission of
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a cognizable offence and he proceeds from the police station
after recording such information, to investigate such offence,
then any statement made by any person in respect of the said
offence including the participants shall be deemed to be
statement made by a person to the police officer in the course
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of investigation covered by Section 162 of the Code.
22. This Court in the case of Binay Kumar Singh v. The
State of Bihar 1997(1) SCC 283 observed as under:-
,, ..... It is evidently a cryptic information and is hardly
G
sufficient for discerning the commission of any cognizable
offence therefrom. Under Section 154 of the Code the
information must unmistakably relate to the commission of
a cognizable offence and it shall be reduced to writing (if
given orally) and shall be signed by its maker. The next
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requirement is that the substance thereof shall be entered
in a book kept in the police station in such form as the
State Government has prescribed. First information report
(FIR) has to be prepared and it shall be forwarded to the
magistrate who is empowered to take cognizance of such
s
offence upon such report. The officer in charge of a police
station is not obliged to prepare FIR on any nebulous
information received from somebody who does not
disclose any authentic knowledge about commission of
the cognizable offence. It is open to the officer-in-charge
c
to collect more information containing details about the
occurrence, if available, so that he can consider whether
a cognizable offence has been committed warranting
investigation thereto."
23. It is submitted that in the said judgment what fell for
D consideration of the Court was the conviction and sentence in
respect of the offence under Sections 302/149 of the IPC in
respect of a murder which took place in a Bihar village wherein
lives of 13 people were lost and 17 other were badly injured
along with burning alive of large number of mute cattle and many
E dwelling houses. It is also submitted that the interpretation of
Section 154 was not directly in issue in the said judgment.
24. Reliance is placed on a decision of this Court in the
case of Madhu Bala v. Suresh Kumar and Others reported
F as 1997 (8) SCC 476 in the context of Sections 156(3) 173(2),
154 and 190(1) (a) and (b) and more particularly upon the
following paragraphs of the said judgment. The same read as
under:-
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"Coming first to the relevant provisions of the Code,
Section 2(c/) defines "complaint" to mean any allegation
made orally or in writing to a Magistrate, with a view to his
taking action under the Code, that some person, whether
known or unknown has committed an offence, but does not
include a police report. Under Section 2(c) "cognizable
offence" means an offence for which, and "cognizable
LALITA KUMARI v. GOVERNMENT OF U.P.
1085
[DALVEER BHANDARI, J.]
case" means a case in which a police officer may in
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accordance with the First Schedule (of the Code) or under
any other law for the time being in force, arrest without a
warrant. Under Section 2(r) "police report" means a report
forwarded by a police. officer to a Magistrate under subsection (2) of Section 173 of the Code. Chapter XII of the
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Code comprising Sections 154 to 176 relates to
information to the police and their powers to investigate.
Section 154 provides, inter alia, that the officer in charge
of a police station shall reduce into writing every
information relating to the commission of a cognizable c
offence given to him orally and every sucll information if
given in writing shall be signed by the person giving it and
the substance thereof shall be entered in a book to be kept
by such officer in such form as the State Government may
prescribe in this behalf. Section 156 of the Code with
D
which we are primarily concerned in these appeals reads
as under:
"(1) Any officer in charge of a police station may,
without the order of a Magistrate, investigate any
cognizable case which a court having jurisdiction
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over the local area within the limits of such station
would have power to inquire into or try under the
provisions of Chapter XII I.
(2) No proceeding of a police officer in any such
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case shall at any stage be called in question on the
ground that the case was one which such officer
was not empowered under this section to
investigate.
(3) Any Magistrate empowered under Section 190
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may order such an investigation as above
mentioned."
On completion of investigation undertaken under Section
156(1) the officer in charge of the police station is required
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under·Section 173(2) to forward to a Magistrate
empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State
Government containing all the particulars mentioned
therein. Chapter XIV of the Code lays down the conditions
requisite for initiation of proceedings by the Magistrate.
Under sub-section (1) of Section 190 appearing in that
Chapter any Magistrate of the First Class and any
Magistrate of the Second Class specially empowered may
take cognizance of any offence (a) upon receiving a
"complaint" of facts which constitutes such offence; (b)
upon a "police report" of such facts; or (c) upon information
received from any person other than a police officer, or
upon his own knowledge that such offence has been
committed. Chapter XV prescribes the procedure the
Magistrate has to initially follow if it takes cognizance of
an offence on a complaint under Section 190(1)(a).
25. Learned counsel for the Union of India relied on the
following passage from Madhu Bala (supra) :-
"From a combined reading of the above provisions it is
abundantly clear that when a written complaint disclosing
a cognizable offence is made before a Magistrate, he may
take cognizance upon the same under Section 190(1)(a)
of the Code and proceed with the same in accordance
with the provisions of Chapter XV. The other option
available to the Magistrate in such a case. is to send the
complaint to the appropriate police station under Section
156(3) for investigation. Once such a direction is given
under sub-section (3) of Section 156 the police is required
to investigate into that complaint under sub-section (1)
thereof and on completion of investigation to submit a
"police report" in accordance with Section 173(2) on which
a Magistrate may take cognizance under Section
190(1)(b) -
but not under 190(1)(a). Since a complaint
filed before a Magistrate cannot be a "police report" in
LALITA KUMAR! v. GOVERNMENT OF U.P.
1087
[DALVEER BHANDARI, J.]
view of the definition of "complaint" referred to earlier and
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since the investigation of a "cognizable case" by the police
under Section 156(1) has to culminate in a "police report"
the "complaint" -
as soon as an order under Section
156(3) is passed thereon -
transforms itself to a report
given in writing within the meaning of Section 154 of the
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Code, which is known as the first information report (FIR).
As under Section 156(1), the police can only investigate
a cognizable "case", it has to formally register a case on
that report."
c
26. Mr. Raval also relied on the following passage from
Madhu Bala' s case:-
"From the foregoing discussion it is evident that whenever
a Magistrate directs an investigation on a "complaint" the
police has to register a cognizable case on that complaint
D
treating the same as the FIR and comply with the
requirements of the above Rules. It, therefore, passes our
comprehension as to how the direction of a Magistrate
asking the police to "register a case" makes an order of
investigation under Section 156(3) legally unsustainable.
E
Indeed, even if a Magistrate does not pass a direction to
register a case, still in view of the provisions of Section
156(1) of the Code which empowers the police to
investigate into a cognizable "case" and the Rules framed
under the Indian Police Act, 1861 it (the police) is dutyF
bound to formally register a case and then investigate into
the same. The provisions of the Code, therefore, do not
in any way stand in the way of a Magistrate to direct the
police to register a case at the police station and then
investigate into the same. In our opinion when an order for
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investigation under Section 156(3) of the Code is to be
made the proper direction to the police would be "to
register a case at the police station treating the complaint
as the first information report and investigate into the
same".
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27. This Court in the case of Hallu and others v.