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Dr. Y. Manjunath and Another Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberCriminal Petition No. 7053 of 2013 connected with Criminal Petition No. 5821 of 2013
Judge
AppellantDr. Y. Manjunath and Another
RespondentState of Karnataka
Excerpt:
code of criminal procedure, 1973 section 154 prevention of corruption act, 1988 section 13(1)(d), section 13(1)(e), section 13(2) registration of case quashing of proceedings case for offences punishable under sections 13(1)(d), 13(1)(e) and 13(2) of the act, filed against petitioner that was sought to be quashed whether entire proceedings were vitiated on account of non-registration of the fir before search whether general diary entries made prior to search proceedings could be treated as the fir. court held section 154 of the code postulates mandatory registration of firs on receipt of all cognizable offences assuming that there was lapse in following mandatory procedure before lodging fir, it would not result in entire proceedings being vitiated it may however.....anand byrareddy, j. 1. these petitions are heard and disposed of by this common order, as the petitions are filed challenging the same proceedings. 2. the facts are stated to be as follows. the petitioner in the first of these petitions was said to be working as the deputy commissioner of excise, arrayed as accused 8 and the petitioner in the second of these petitions was said to be working as an inspector of excise and in-charge additional deputy superintendent of excise, mysore, arrayed as accused 4. 3. it transpires that the deputy superintendent of police, lokayukta, mysore, on receiving information of certain corrupt practices in the office of the inspector of excise, range i and iv, mysore, is said to have obtained a search warrant from the court of the district and sessions judge.....
Judgment:

Anand Byrareddy, J.

1. These petitions are heard and disposed of by this common order, as the petitions are filed challenging the same proceedings.

2. The facts are stated to be as follows. The petitioner in the first of these petitions was said to be working as the Deputy Commissioner of Excise, arrayed as accused 8 and the petitioner in the second of these petitions was said to be working as an Inspector of Excise and in-charge Additional Deputy Superintendent of Excise, Mysore, arrayed as accused 4.

3. It transpires that the Deputy Superintendent of Police, Lokayukta, Mysore, on receiving information of certain corrupt practices in the Office of the Inspector of Excise, Range I and IV, Mysore, is said to have obtained a search warrant from the Court of the District and Sessions Judge and Special Judge, Mysore, to conduct a search of the said offices. Accordingly, he is said to have proceeded with his staff and other panch witnesses to the Office premises of the Deputy Superintendent of Excise and the office premises of the petitioners. Both the offices were said to be situated in the same building. The raiding party is said to have reached the said offices at about 12.40 p.m. on 27-2-2012. It transpires one Dakshinamurthy, Sub-Inspector of Excise was present, who was said to have been served with the search warrant. The Inspector of Excise was not to be found in the office. The search party had then entered the room where Nagesh, a Second Division Assistant (accused 2) and one Rajappa, an Excise guard (accused 3) were said to be present. On enquiry with them as regards applications for renewal of licences filed by M/s. SB Wines Corner and M/s. Gandharva Wines, accused 2 is said to have produced two files and an amount of Rs. 41,000/- each, which was to be handed over to the Excise Inspector and which was said to have been handed over by one Yogesh. The said amount of Rs. 82,000/- which was not towards any legitimate fee or charges was said to have been seized and the particulars noted.

Thereafter, the search team had gone to the Office of Excise Zone I and found one person who is said to have come there in connection with renewal of licence pertaining to M/s. Maruthi Wines and another licence of his friend pertaining to M/s. Aditya Wines and he had informed that cash of Rs. 1,23,000/- had been handed over to Chowda Naik, an excise guard (accused 5) on the instructions of the petitioner in the first of the petitions (accused 8). On enquiry with Chowda Naik, he is said to have produced the files and cash amounting to Rs. 1,23,000/- and also reported that a sum of Rs. 41,000/- had been handed over to one Eshwarappa, an excise guard (accused 6), who in turn is said to have handed over the amount to another guard, Umesh (accused 7). The said amount also having been recovered, a mahazar is said to have been drawn in this regard. The explanation of Thammanna (accused 4), the petitioner in the second of these petitions, was said to have been obtained. As well as that of his counterpart, Susanna (accused 1) of Range IV was said to have been obtained.

Thus, after recording the explanatory statements of the accused and seizure of cash amounting in all to Rs. 2.46 lakhs, as well as two compact discs containing the alleged conversation between the petitioner in the first of these petitions and one Chandrashekar, all the accused were said to have been taken into custody and produced before the Court. They had been subsequently released on bail.

4. Aggrieved by the registration of a case in Crime No. 11 of 2012 for offences punishable under Section 13(1)(d) and 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988, the present petitions are filed.

5. The learned Senior Advocate Sri C.V. Nagesh, appearing for the Counsel for the petitioner in the first of these petitions, would contend that the registration of criminal case is without any basis. It is pointed out that when a case is to be registered against a person for a cognisable offence, the ingredients of the offence must be forthcoming from the first information report. There are no materials available to even remotely connect the petitioner in the commission of any offence.

It is pointed out that the report of the Investigation Officer does not disclose the basis for having obtained a search warrant and admittedly, no incriminating material was seized from the possession of the petitioner. Even the alleged conversation as between the petitioner and one Chandrashekarof Janatha Wines, said to have been recorded, also did not disclose the possible commission of any offence alleged.

It is contended that a case having been registered on the basis of the search and seizure that was conducted, it was incumbent on the Investigating Officer to disclose the material or evidence that prompted him to obtain such a warrant. It is contended that a search warrant could have been obtained under Sections 93 to 98 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr. P.C' for brevity) where there was reason to believe that a person to whom a summons or order, under Section 91 or 92 of Cr. P.C. is issued, has not produced such document or thing as required. There is no such circumstance forthcoming in the present case. On the other hand, a search warrant could have been issued under Section 94 of Cr. P.C., where there was reason to believe that any place has been used for deposit or sale of stolen property. This again is not the circumstance claimed by the police.

It is contended that the registration of the case after conducting search mahazar, seizing of incriminating material and arrest of the accused and then proceeding on the basis of such disclosure in the search mahazar to registers cognisable case, is a procedure not known to law and such a procedure has been declared to be bad in law. Therefore, the very registration of the case is without any basis. Reliance is placed on the decision of the Apex Court in Lalita Kumari v. Government of Uttar Pradesh and Others AIR 2014 SC 187, to emphasise the mandatory procedure prescribed in terms of Section 154 of the Cr. P.C.

It is contended that the inclusion of the petitioner in the FIR is clearly an after thought, just before it was submitted to the Court, as the endorsement made by the police on the report would indicate that the case had been registered only against accused 1 to 7 in the first instance.

It is pointed out that the police had registered yet another case in Crime No. 12 of 2012 in identical circumstances pursuant to a search conducted at the office of the petitioner, though there was no incriminating material found against him and the same having been questioned before this Court, the proceedings had been quashed. Hence, the petitioner seeks similar relief in the present petition.

6. The learned Counsel for the petitioner in the second of these petitions would point out that, prim a facie, no case could be made out against the petitioner as it was an admitted circumstance that the petitioner was not present in the office at the time of the alleged occurrence of the offence.

It is contended that there is admittedly no incriminating material seized from the possession of the petitioner.

The learned Counsel would urge similar legal contentions as has been urged in the first of these petitions.

7. On the other hand, the learned Counsel for the respondent would contend that it would be premature to conclude that the petitioners were not in any way involved in the commission of the offences alleged. The mere absence of seizure of any incriminating material from the person of the petitioners or the temporary absence from the office would not enable the petitioners to claim innocence, having due regard to the modus operandi of demanding and receiving illegal gratification, albeit through the medium of subordinate officials, and when the official favour that is expected is extended by the petitioners, ultimately. The burden of establishing the nexus and to bring home the charges is on the prosecution, which would be the endeavour at the trial. Hence it is contended that the proceedings cannot be scuttled on that ground alone.

Insofar as the alleged irregularity in the procedure followed in the non-registration of the FIR before the search proceedings under Section 93(1)(c) of the Cr. P.C., is concerned, it is pointed out that there is no indication under Sections 460 and 461 of Cr. P.C. that any such infirmity would vitiate the proceedings.

It is also contended that the Apex Court has, in more than one case, held that any error, illegality or defect in investigation cannot have any impact on the investigation, unless there is a miscarriage of justice on that account or a serious prejudice is caused. (See Union of India v. Prakash P. Hinduja AIR 2003 SC 2612 ; Ram Bali v. State of Uttar Pradesh AIR 2004 SC 2329)

It is further contended that it is also the settled position of law that any failure or omission on the part of the Investigating Officer, even if should give rise to suspicion, the evidence gathered ought to be scrutinised independently, notwithstanding a faulty investigation. A criminal trial cannot be dependent on the conduct of the Investigating Officer alone. It is also the settled law that every illegality or irregularity in investigation does not vitiate the entire proceedings:

(a) Ram Bihari Yadav v. State of Bihar and Others AIR 1998 SC 1850 :1998 AIR SCW 1647: (1998)4 SCC 517;

(b) Paras Yadav and Others v. State of Bihar AIR 1999 SC 644 :1999 AIR SCW 296 : (1999)2 SCC 126;

(c) State of Karnataka v. K. Yarappa Reddy AIR 2000 SC 185 : (1999)8 SCC 715 : 1999 AIR SCW 4276;

(d) Amar Singh v. Balzvinder Singh AIR 2003 SC 1164 (paras 14,15 and 16);

(e) Dhanaj Singh alias Shera and Others v. State of Punjab AIR 2004 SC 1920 (paras 4,5,6 and 7); and

(f) Paramjit Singh alias Mithu Singh v. State of Punjab, through Secretary (Home) AIR 2008 SC 441;

(g) State of Madhya Pradesh and Others v. Shri Ram Singh AIR 2000 SC 870 (paras 8,9, 10 and 13).

It is contended, that as laid down by the Apex Court, an investigation is not an inquiry or trial before the Court, which is the reason that the Legislature has not contemplated that any irregularity in investigation as being of sufficient significance to vitiate the proceedings. (See Niranjan Singh and Others v. State of Uttar Pradesh AIR 1957 SC 142).

It is further contended that even assuming that the preliminary enquiry conducted by the respondent was bad in law, the same does not result in the proceedings being vitiated. The Apex Court has held in State of Uttar Pradesh v. Bhagwant Kishore Joshi AIR 1964 SC 221, that under the Prevention of Corruption Act, 1988 even if one or two steps in the investigation has commenced earlier to the registration of the FIR and if material has been gathered, then it is for the Trial Court to decide the value of the materials so collected. It is contended that in Umesh Kumar v. State of Andhra Pradesh AIR 2014 SC 1106, the Apex Court has further laid down that even if material has been illegally obtained, still the Investigating Agency can rely on such material and it is for the Court to examine the admissibility or otherwise of the evidence.

8. The learned Special Public Prosecutor has produced extracts of the relevant General Diary entries made just prior to conducting a search and seizure in the case and seeks to place reliance on the judgment of the Apex Court in Superintendent of Police, C.B.I. and Others v. Tapan Kumar Singh AIR 2003 SC 4140, wherein it was held that the facts stated in the General Diary entry prima facie disclosed the commission of an offence under Section 13 of the PC Act and hence could be treated as an FIR.

In the light of the above contentions, it may be said that it would be premature for this Court to conclude that the petitioners had no hand in the collection of monies from private parties merely on account of the temporary absence from the premises or because there was no recovery of any incriminating material from them. The burden of establishing the nexus and their possible involvement is on the prosecution and would be relevant at the trial, provided the Trial Court chooses to frame charges against them. It would not be prudent for this Court to arrive at findings of fact at this stage of the proceedings.

9. The points of law that do arise for consideration are:

(a) Whether the entire proceedings are vitiated on account of the non-registration of the FIR before the search? and

(b) Whether the General Diary entries made prior to the search proceedings could be treated as the FIR?

In answering the first point for consideration, since a Constitution Bench of the Supreme Court has had occasion to consider the mandatory procedure to be followed, in Lalita Kumari's case (supra) it would be useful to keep the law laid down therein in view. It was a writ petition filed under Article 32 of the Constitution of India by Lalita Kumari, a minor, through her father for the issuance of a writ of Habeas Corpus or a direction of a like nature against the respondents therein for the protection of his minor daughter, who was said to have been kidnapped. It was urged that on 11-5-2008, a written report was submitted by the petitioner before the officer-in-charge of the police station concerned, who did not take any action on the same. Thereafter, when the Superintendent was moved, an FIR was registered. But even thereafter, no steps were taken either to apprehend the accused or for the recovery of the minor.

A two Judges Bench of the Apex Court in Lalita Kumari v. Government of Uttar Pradesh (2008) 7 SCC 164, after noticing the disparity in the registration of FIRs by Police Officers on a case by case basis, across the country is said to have issued notices to the Union of India and the Chief Secretaries of all States and Union Territories, apart from the concerned Police authorities, to the effect that if steps are not taken for registration of FIRs immediately and the copies thereof are not handed over to the complainants, they may move the Magistrates concerned by filing complaints for appropriate directions to the police to register the case immediately, and if no action is taken pursuant thereto, contempt proceedings could be initiated against the delinquent police.

Pursuant to the above directions when the matter was again heard, by the very same Bench in Lalita Kumari v. Government of Uttar Pradesh (2008) 14 SCC 337, it was contended on behalf of the petitioner that upon receipt of information by a police officer in charge of a police station disclosing a cognisable offence, it is imperative for him to register a case under Section 154 of the Cr. P.C. and placed reliance on the following decisions of two Judges Benches of the Apex Court:

1. State of Haryana and Others v. Ch. Bhajan Lal and Others 1992 Supp. (1) SCC 335 : AIR 1992 SC 604 :1992 AIR SCW 237;

2. Ramesh Kumari v. State (N.C.T. of Delhi and Others AIR 2006 SC 1322 : (2006)2 SCC 677 : 2006 AIR SCW 1021; and

3. Parkash Singh Bada and Another v. State of Punjab and Others AIR 2007 SC 1274 : (2007)1 SCC 1 : 2007 AIR SCW 1415.

On the other hand, it was contended, on behalf of one of the State Governments, that an officer-in-charge of a police station was not obliged under law, upon receipt of information disclosing commission of a cognisable offence, to register a case rather the discretion lay in him, to hold a sort of preliminary enquiry in relation to the veracity or otherwise of the accusations made in the report. The following decisions were said to have been cited in support of the above contention:

1. P. Sirajuddin v. State of Madras AIR 1971 SC 520 : (1970)1 SCC 595;

2. Sevi and Another v. State of Tamil Nadu and Another AIR 1981 SC. 1230 : 1981 Supp. SCC. 43;

3. Shashikant v. Central Bureau of Investigation and Others AIR 2007 SC 351 : (2007) 1 SCC 630 : 2006 AIR SCW 6182; and

4. Rajinder Singh Katoch v. Chandigarh Administration and Others AIR 2008 SC 178 : (2007)10 SCC 69 : 2007 AIR SCW 6453.

In view of this divergence of opinion, the matter was referred to a larger Bench.

The matter having been placed before a Bench of three Judges, it was said to have been heard in Lalita Kumari v. Government of Uttar Pradesh and Others (2012)4 SCC 1, and it was opined as follows:

"97. We have carefully analysed various judgments delivered by this Court in the last several decades. We clearly discern divergent judicial opinions of this Court on the main issue: whether under Section 154 of Cr. P.C., a Police Officer is bound to register an FIR when a cognisable 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.

98. Tire learned Counsel appearing for the Union of India and different States have expressed totally divergent views even before this Court. This Court also carved out a special category in the case of medical doctors in the aforementioned cases of State of Madhya Pradesh v. Santosh Kumar, AIR 2006 SC 2648 : 2006 AIR SCW 3608 and Dr. Suresh Gupta v. Government of NCT of Delhi and Another, AIR 2004 SC 4091 : 2004 AIR SCW 4442 where preliminary enquiry had been postulated before registering an FIR. Some Counsel also submitted that the CBI Manual also envisages some kind of preliminary enquiry before registering the FIR.

99. The issue which has arisen for consideration in these cases is of great public importance. 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 Agencies and the citizens.

100. Consequently, we request the Hon'ble the Chief Justice to refer these matters to a Constitution Bench of at least five Judges of this Court for an authoritative judgment."

It is in this manner that the matter was considered by the Constitution Bench. The question before the Constitution Bench related to the interpretation of Section 154 of the Cr. P.C. and to incidentally consider Sections 156 and 157 thereof.

On an elaborate consideration of the matter, it was held in unequivocal terms, that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognisable offences. However, certain exceptions were noticed as for instance in the case of allegations relating to medical negligence on the part of doctors and in relation to cases involving corruption and it was concluded thus:

"108. In the context of offences relating to corruption, this Court in P. Sirajuddin (supra) expressed the need for a preliminary inquiry before proceeding against public servants.

109. Similarly, in Tapan Kumar Singh (supra), this Court has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognisable offence.

110. Therefore, in view of various counter-claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognisable offence. In such a situation, registration of an FIR is mandatory. However, if no cognisable offence is made out in the information given, then 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 cognisable offence has been committed. But, if the information given clearly mentions the commission of a cognisable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognisable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.

Conclusion/Directions:

111. In view of the aforesaid discussion, we hold:

(i) The Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognisable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognisable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognisable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognisable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognisable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognisable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognisable offence.

(vi) 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 made are as under:

(a) Matrimonial disputes/family disputes;

(b) Commercial offences;

(c) Medical negligence cases;

(d) Corruption cases;

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognisable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

112. With the above directions, we dispose of the reference made to us. List all the matters before the appropriate Bench for disposal on merits."

It is pertinent to note that the Apex Court has laid down the mandatory procedure to be followed. However, it is not also laid down that in the event of a lapse in this regard that the entire proceedings are vitiated.

On the other hand, in Niranjan Singh v. State of Uttar Pradesh, AIR 1957 SC 142, a four Judges Bench has held thus:

"14. But the learned Counsel have not been able to show to us that paragraph 109 of Chapter XI of the Police Regulations has the force of law. In this connection reference may be made to Chapter XLV of the Code of Criminal Procedure dealing with illegal and irregular proceedings and to Section 529 laying down irregularities which do not vitiate proceedings, while Section 530 concerns irregularities which vitiate proceedings. Section 537 is to the effect that subject to the provisions contained in the previous sections of that Chapter no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of, among other things, any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code. There is an explanation added that:

"in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

It is true that the objection was taken before the learned Sessions Judge and, therefore, the explanation cannot be applied. In these circumstances and on the footing that the Uttar Pradesh Police Regulations, are merely directions regarding the course of conduct, can it be stated that a breach of it would vitiate the trial? The Code of Criminal Procedure in laying down the omissions or irregularities which either vitiate the proceedings or does not anywhere specifically say that a mistake committed by a Police Officer during the course of the investigation can be said to be an illegality or irregularity. Investigation is certainly not an inquiry or trial before the Court and the fact that there is no specific provision either way in Chapter XLV with respect to omissions or mistakes committed during the course of investigation except with regard to the holding of an inquest is, in our opinion, a sufficient indication that the Legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial.

15. The learned Counsel for the State of Uttar Pradesh invited our attention to a few cases which show that even violation of the provisions of the Code would not amount to an illegality.

16. The decisions of their Lordships of the Judicial Committee reported in Pulukuri Kottayya and Others v. King-Emperor, 74 Ind. App. 65 : AIR 1947 PC 67 and Zahiruddin v. Emperor, 74 Ind. App. 80 : AIR 1947 PC 75 lay down that a breach of Sections 162 and 172 of the Code does not amount to an illegality. If therefore such an omission could not vitiate a trial, it is all the more reasonable that a failure to conform to a rule of conduct prescribed by the State Government on police officers cannot in any way interfere with the legality of a trial. That failure to investigate an offence does not necessarily prejudice an accused and therefore any mistake or omission in conducting investigation cannot vitiate a trial has been laid down in Hafiz Mohamad v. Emperor, AIR 1931 Pat. 150 (C). At page 152, Adami, J. observes as follows:

"There can be no doubt that the Sub-Inspector in his procedure disobeyed certain provisions of the law, and for that he could be punished, if the authorities deemed it fit, but I cannot find that his failure was to the prejudice of the petitioners. Nor can I see how failure properly to conduct an investigation into an offence can vitiate a trial which was started on the final report after the investigation".

Significantly, there is no reference to this decision in Lalita Kumari's case.

Insofar as the next point for consideration, is concerned, the following discussion in Lalita Kumari clearly lays down the legal position:

"48 The First Information Report is in fact the "information" that is received first in point of time, which is either given in writing or is reduced to writing. It is not the "substance" of it, which is to be entered in the diary prescribed by the State Government. The term 'General Diary' (also called as 'Station Diary' or 'Daily Diary' in some States) is maintained not under Section 154 of the Code but under the provisions of Section 44 of the Police Act, 1861 in the States to which it applies, or under the respective provisions of the Police Act(s) applicable to a State or under the Police Manual of a State, as the case may be. Section 44 of the Police Act, 1861 is reproduced below:

"44. Police Officers to keep diary.-It shall be the duty of every officer in-charge of a Police Station to keep a general diary in such form as shall, from time to time, be prescribed by the State Government and to record therein, all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined.

The Magistrate of the District shall be at liberty to call for and inspect such diary."

49. It is pertinent to note that during the year 1861, when the aforesaid Police Act, 1861 was passed, the Code of Criminal Procedure, 1861 was also passed. Section 139 of that Code dealt with registration of FIR and this Section has also referred to the word "diary", as can be seen from the language of this section, as reproduced below:

"139. Complaint, etc., to be in writing.-Every complaint or information preferred to an officer-in-charge of a Police Station, shall be reduced into writing, and the substance thereof shall be entered in a diary to be kept by such officer, in such form as shall be prescribed by the local Government."

Thus, the Police Act, 1861 and the Code of Criminal Procedure, 1861, both of which were passed in the same year, used the same word "diary".

50. However, in the year 1872, a new Code came to be passed which was called the Code of Criminal Procedure, 1872. Section 112 of the Code dealt with the issue of registration of FIR and is reproduced below:

"112. Complaint to police to be in writing. - Every complaint preferred to an officer-in-charge of a Police Station shall be reduced into writing, and shall be signed, sealed, or marked by the person making it, and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Local Government."

51. It is, thus, clear that in the Code of Criminal Procedure, 1872, a departure was made and the word 'book' was used in place of 'diary'. The word book' clearly referred to the FIR book to be maintained under the Code for registration of FIRs.

52. The question that whether the FIR is to be recorded in the FIR Book or in General Diary, is no more res integra. This issue has already been decided authoritatively by this Court.

53. In Madhu Bala v. Suresh Kumar, (1997)8 SCC 476 : AIR 1997 SC 3104, this Court has held that FIR must be registered in the FIR Register which shall be a book consisting of 200 pages. It is true that the substance of the information is also to be mentioned in the Daily Diary (or the General diary). But, the basic requirement is to register the FIR in the FIR Book or Register. Even in Bhajan Lal (supra), this Court held that FIR has to be entered in a book in a form which is commonly called the First Information Report.

54. It is thus clear that registration of FIR is to be done in a book called FIR book or FIR Register. Of course, in addition, the gist of the FIR or the substance of the FIR may also be mentioned simultaneously in the General Diary as mandated in the respective Police Act or Rules, as the case may be, under the relevant State provisions.

55. The General Diary is a record of all important transactions/events taking place in a police station, including departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order duties, visit of senior officers etc. It is in this context that gist or substance of each FIR being registered in the police station is also mentioned in the General Diary since registration of FIR also happens to be a very important event in the police station. Since General Diary is a record that is maintained chronologically on day-to-day basis (on each day, starting with new number 1), the General Diary entry reference is also mentioned simultaneously in the FIR Book, while FIR number is mentioned in the General Diary entry since both of these are prepared simultaneously.

56. It is relevant to point out that FIR Book is maintained with its number given on an annual basis. This means that each FIR has a unique annual number given to it. This is on similar lines as the case numbers given in Courts. Due to this reason, it is possible to keep a strict control and track over the registration of FIRs by the supervisory police officers and by the Courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the Judicial Magistrate concerned.

57. On the other hand, General Diary contains a huge number of other details of the proceedings of each day. Copy of General Diary is not sent to the Judicial Magistrate having jurisdiction over the police station, though its copy is sent to a superior Police Thus, it is not possible to keep strict control of each and every FIR recorded in the General Diary by superior police officers and/or the Court in view of enormous amount of other details mentioned therein and the numbers changing everyday.

58. The signature of the complainant is obtained in the FIR Book as and when the complaint is given to the police station. On the other hand, there is no such requirement of obtaining signature of the complainant in the general diary. Moreover, at times, the complaint given may consist of large number of pages, in which case it is only the gist of the complaint which is to be recorded in the General Diary and not the full complaint. This does not fit in with the suggestion that what is recorded in General Diary should be considered to be the fulfilment/compliance with the requirement of Section 154 of registration of FIR. In fact, the usual practise is to record the complete complaint in the FIR book (or annex it with the FIR form) but record only about one or two paragraphs (gist of the information) in the General Diary.

...

61. If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus, FIR is to be recorded in the FIR Book, as mandated under Section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as FIR."

While having held as above, the Apex Court has noted with approval the exceptional circumstance as in the case of Tap an Kumar Singh's case supra, and the observations to the following effect therein:

"90. In Tapan Kumar Singh, AIR 2003 SC 4140 : 2003 AIR SCW 2133 (supra), it was held as under:

"20. It is well-settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye-witness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognisable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognisable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognisable offence, and not that he must be convinced or satisfied that a cognisable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognisable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognisable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other Competent Officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognisable offence. Even if the information does not give full details regarding these matters, the Investigating Officer is not absolved of his duty to investigate the case and discover the true facts, if he can."

Even assuming that there has been a lapse in following the mandatory procedure before lodging the FIR, it would not result in the entire proceedings being vitiated, but may have a bearing on the value of the alleged incriminating material collected pursuant to a faulty investigation, which it would be for the Trial Court to consider, and it would also be for the Trial Court to examine the admissibility or otherwise of the evidence which is said to have been obtained pursuant to a faulty investigation.

In the light of the above, the petitions do not merit consideration and are dismissed. The interim order of stay granted earlier stands vacated.


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