1.

Whether under Section 154 of the Code of Criminal Procedure, it is mandatory for the police to record an FIR on getting information about commission of a cognizable offence, or they have some latitude in recording the FIR after preliminary inquiry/ conducting some kind of preliminary enquiry before registering the FIR?
It is humbly contended before this Honble court that the police does not have discretion regarding the recording of FIR on getting information about commission of a cognizable offence. A careful and accurate record of the first information has always been considered as a matter of the highest importance by the Courts in India, the object of the first information is to show the manner in which the occurrence was related when the case was first started. The condition which is sine qua non for recording a FIR is that there must be information and the information must disclose a cognizable offence. If any information disclosing a cognizable offence is laid before an officer-in-charge of a police station satisfying the requirements of Section 154(1) the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.1 FIR is dealt in the section 154 of Code of Criminal Procedure 1973. It is contended that it is mandatory for the police officer to record an FIR as soon as they receive it. The FIR is the first version of the incident as received by the police. The information given to a police officer and reduced to writing as required by this section is known as first information.2 FIR is an important document and may be put in evidence to support or contradict the evidence of the person who gave the information. An FIR is an important document because it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police take up investigation of the case. Anyone who knows about the commission of a cognizable offence, including police officers, can file an FIR. Section 2(c) of the Criminal Procedure Code, 1973 defines cognizable offence

1 2

State of Haryana v. Ch. Bahajan Lal, AIR 1992 SC 604 Sarkar on Criminal Procedure Code

cognizable offence means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under and other law for the time being in force, arrest without warrant. It is contended that if any information in disclosing a cognizable offence is laid before the officer in charge of a police station, satisfying the requirement of section 154(1) the said police officer has no option except to enter the substance thereof in the prescribed form, that is to say, to register the case on the basis of given information3. The principle object of the FIR from the point of view of the informant is to set the criminal law in motion, and from the point of view of investigating authority is to obtain information about the alleged criminal activity so as to able to take suitable steps to trace and bring to book the guilty. Hence it is contended that a police has a statutory duty to register a cognizable offence and it has no discretion or authority to enquire about credibility of information before registering the case. It is further stated in Ramesh Nana Ghorpale vs. State of Maharashtra,4 court said that lodging of the prompt FIR substantially reduces the chance of embellishment and possibility of the false implication of the accused to the barest minimum particularly when the informant has no animus against any particular accused. Section 154 does not lay down that the information of a cognizable offence can be only given to an officer in charge of police station. FIR can be filed to Additional General of police, who is superior in rank to an officer in charge of a police station and whose jurisdiction area is whole of a state. Further it is not incumbent that the station house officer himself should record the FIR. It can be written by him or by any other officer upon his direction.5 When the superior officer on receiving a message about the commission of a cognizable offence records the statement and send it to the police station, it becomes FIR. Therefore an alternative remedy was present for Mohinis parents, however they did not exhaust the remedy. It is not incumbent that the Station House Officer himself should always record the FIR. Therefore it can

3 4

State of Haryana v. Bhajan lal 1992 AIR 604, 1990 SCR Supl. (3) 259 Ramesh Nana Ghorpale vs. State of Maharashtra 1962 AIR 1908, 1963 SCR (3) 396 5 Dasu v. state of Maharashtra 1986 crlj 1933

be said that that the delay in filing the FIR was due to Mohinis parents. And this delay is unjustifiable. It is submitted that 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.6 The provision of Section 154(1) read in light of statutory scheme do not admit or 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 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. 7 It is submitted that the language employed in Section 154 is the determinative factor of the 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.8 The 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" It is contended that the preliminary enquiry should be conducted after the filling of FIR. The officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him ARGUENDO:6 7

Lalita Kumari vs Govt.Of U.P.& Ors. on 27 February, 2012 Lalita Kumari vs Govt.Of U.P.& Ors. on 27 February, 2012 8 B. Premanand and Others v. Mohan Koikal and Others (2011) 9 4 SCC 266

It is submitted that even though the police has the authority to conduct preliminary enquiry no prima facie case of kidnapping under section 366 of Indian Penal Code can be established. The underlying policy of the section is (1) to uphold the lawful authority of the parents or guardians over their minor wards, (2) to throw a ring of protection round the girl themselves, (3) to penalize sexual commerce on the part of persons, who corrupt or attempt to corrupt the morals of the minor girls by taking improper advantage of their youth and inexperience.9 Further it is submitted that where the woman has no intention of marriage or lawful intercourse when kidnapped this section is applies. The main ingredients of this section are10:(1) that the accused induced the complainant or compelled by force to go from one place to another (2) that such inducement was by deceitful means; (3) that such abduction took place with the intent that the complainant may be seduced to illicit intercourse (4) that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. When the complaint is found to have gone from one place to another voluntarily, no offence is made out. It is submitted that Mohini was not compelled to go from one place to another. She is over the age of minority and she stayed with Hiten with her own consent. No kidnapping was done by the Petitioner. Hence no prima facie case of kidnapping for marriage is not made against the Petitioner. Hence it is humbly submitted that even though under Section 154 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.

10

Sultan v Emperor 31 CrLj 85 (86) Shyam Sundar Kar v state, 1969 CrLJ 1310