Mr. M. Karunanidhi, Advocate, Madurai High Court
The author intends to discuss in toto about the powers and duties of police officer after receiving a report making out a cognizable offence. The topic can be approached under the following headings so as to have through study on the subject.
(a) Is it mandatory to register FIR before starting investigation?
(b) Whether an accused can be heard before registering FIR?
(c) Whether preliminary enquiry can be conducted? is it permissible under law?
For easy reference Section 154 of Code of Criminal Procedure is extracted hereunder.
Chapter XII
Information to the police and their poor to investigate:
Section 154(1) Information in cognizable cases.
(i) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as abovesaid, 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.
Thus on bare reading of Section 154 Cr.P.C., makes it abundantly clear that an officer in-charge of a police station on receipt of information whether orally or in writing is duty bound to register the same in FIR book prescribed by the State Government. There is no option is left open to the SHO except to register FIR since the law maker used “SHALL” which makes Section 154 Cr.P.C., mandatory.
The following case laws are useful
(1) Rajinder Singh Katoch Vs. Chandigarh Administration (2007) 10 SCC 69.
(2) Shashikant Vs. CBI - (2007)1 SCC 630.
Whether Preliminary enquiry is permissible under law?
Nowhere in the Code of Criminal Procedure Preliminary enquiry has been defined nor such power has been vested by law expressly. When the law does not expressly provide for preliminary enquiry the same cannot be done positively. But at the same it was not prohibited also that is why in few cases preliminary enquiry was approved.
In order to ascertain the truthfulness or otherwise of the report preliminary enquiry can be conducted in the following cases preliminary enquiry by police officer was approved.
(1) Rajinder Singh Katoch Vs. Chandigarh Administration (2007) 10 SCC 69.
(2) Shashikant Vs. CBI - (2007)1 SCC 630.
“ …….. the same does not take away the right of competent officer to make a preliminary enquiry in a given case in order to find out whether the first information sought to be lodged had any substance or not.
Right of audience – Principles of natural justice:
Right of hearing of accused has not been provided under law before registering FIR. There are catena of decision on the point. The landmark judgment is AIR 1963 SC 1430 – Chandra Deo Singh Vs. Prakash Chandra Bose @ Chabi Bose and another.
In the above case four judges bench of Hon’ble Apex Court has clearly held that accused has no right to be heard before registering FIR. The position in similar to enquiry u/s. 202 Cr.P.C., also in the recent judgment reported in 2013(1) CTC 714 Anju Choudhary Vs. State of UP and another, the scope of Section 154 has been elaborately dealt with and decided that Liberty of an individual not taken away or adversely affected by register of FIR other judgments on the point are given below.
2004 SCC Crl. 1077 – Sarbi Jene and others Vs Khadal Swain and another.
(2012) 10 SCC 517 – Manhoribhai Muljibhai Karledia Vs. Sharleshbhai Mohan Bhai Patel and others.
In the above case also the earlier view has been reiterated but if revisional Court hears a matter as per Section 397, 401(2) Cr.P.C., hearing of accused is necessary but if matter is remanded to learned Magistrate to hold enquiry u/s. 202 Cr.P.C. the accused not entitled to hearing.
Thus, the accused before registering FIR cannot be given an opportunity of being heard because it is not the ambit of law. It will not violates the principles of Natural justice because after registration accused has right to move u/s. 438 Cr.P.C. for anticipatory bail and to protect his liberty.