The court in State v. Sachin Tyagi held that preliminary inquiry is not to ascertain the veracity of information received but to ascertain whether there is enough information that reveals any cognizable offence. Registration of FIR itself amounts for a preliminary inquiry. The court also asked DCP to sensitize officers regarding registration of FIR.
Facts
The applicant is having a family relation with Laxmi Chahar who deserted her husband. Laxmi and her husband have one daughter and one son. Both the children left the house of the applicant on the night of 17/04/2020 upon instigation by their father. Daughter has threatened the applicant and Laxmi regarding false implications in criminal cases. Also, the daughter had made some fake complaints against the applicant and Laxmi. Police officials had come to the residence of Laxmi and the neighbor told that some non-bailable offence is alleged against the applicant. Also, Laxmi had filed two complaints against her daughter for criminal intimidation. The daughter and son had also filed a complaint regarding torture. The inquiry is still pending and no FIR has been registered against present FIR. The applicant moved to court for anticipatory bail.
Court's Observation
It was mentioned during the hearing that according to Section 438(1) of Cr.PC court is given discretion in a particular case. The court examined various judgments that provided for exhaustive commentaries of Section 438 and several principles were culled out with respect to the Section. The court further asserted, "It may be noted although registration of FIR is not a pre-condition to apply for anticipatory bail, it is also the law that usually registration of FIR u/s 154 Cr.P.C is a pre-condition. In any case, it appears that concerned police officials have developed their own procedures, which is in disregard to the provision of Cr.P.C including 154 Cr.P.C.” The court mentioned that there is no statutory requirement that police must contact or hear the advice before deciding to register FIR against him. The court rejected the plea for anticipatory bail and stated various principles of FIR.
FIR Registration u/s 154 Cr.P.C
Regarding the ongoing process of investigation, the court referred to Prakash Singh Badal v. the State of Punjab, for the purpose of deriving conclusions regarding the false-complaint and genuine complaint issue. The court said that there is no mandate of law that a person making a complaint u/s 154(1) is a liar, so that veracity of allegation made must be checked before registration of FIR. The court also stated that legally, benefits of registration are more than that of Non-Registration.
Registration of FIR doesn't compulsorily mean the arrest of accused
The court further said that in the present case there is no apprehension for arrest, thus the bail was rejected. The court said that it is a misconception that registration of FIR must necessarily lead to an arrest. Police can always postpone the arrest unless it is prima facie satisfied that delaying the arrest would jeopardize the course of the investigation. Also, Section 41 of Cr.P.C gives the power to police for the arrest of non-arrest of accused.
Non-Registration of FIR by police
The court stated a few reasons why the police don't register FIR:-
- No offence u/s 154(1) of Cr.P.C
- To keep crime graph low
- Unduly influence of police by accused
- Police unaware of the position of law
- Police don't want the workload
Leaving the first possibility, the court said that other grounds can't be allowed to be taken by police at all.
The court stated another reason for non-registration of FIR by just cooking story of cognizable offence nature, criminal proceedings can be launched by unscrupulous complaints. In the present case too the court acknowledged the above possibility.
Merits and Demerits of timely registration of FIR
The merits, as stated by the court include securing of evidence, apprehending accused and lessening the workload of court and police which leads to peace and order.
Demerits include instant roping of an innocent family, inflation of complaint, the perception that registration of FIR means victory.
FIR, the court said is a form of a preliminary inquiry in itself, the police come at the conclusion itself and that FIR means first investigation report and not final investigation report.
The conundrum of two independent yet overlapping aspects
Under Section 156(1) Cr.P.C, SHO can investigate any cognizable offence but whenever a complaint regarding cognizable offence is registered to police, the police is duty-bound to register.
The court said that "Police can't find a distinction in these two provisions. Consequently, the police is staying wrongly that it has a right to make 'preliminary inquiry' even in cases where a complaint u/s 154(1) is made. Very often by confusing its power u/s 156(1) with 154(1) police is holding preliminary inquiry instead of registering FIR first."
Court's Verdict
- Registration of FIR mandatory u/s 154, if there's enough information of cognizable offence and no preliminary inquiry permissible under such situation
- If information not enough but there is a necessity of inquiry, it may be conducted to ascertain if there is a cognizable offence
- Police must register FIR if a cognizable offence is disclosed
- Preliminary inquiry may be made under matrimonial, commercial, medical negligence, corruption cases and cases with abnormal delay
- The preliminary inquiry must not exceed 7 days.
- All information regarding the cognizable offence must be reflected in the Station Diary as a record of information.
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