Congress leader challenges Gujarat State Circular directing Police to conduct inquiry before filing FIR against Government Officials

Mr. Indravijaysinh Gohil, General Secretary of Gujarat Pradesh Congress Committee has petitioned Gujarat High Court, challenging the State circular which had asked the Police not to file FIRs against Government officials without first conducting an inquiry into the matter. The circular had reasoned that an FIR affects the moral of the public servant and tarnishes the image of the Government.

The Circular, which was issued two day ago, has been challenged on the grounds that it is violative of the provisions of Section 154 of the Code of Criminal Procedure, as also against the Apex Court order in the case of Lalita Kumari v. Govt. of U.P.,

“…by the time the police completes the preliminary investigation, the credible evidences would be destroyed and, therefore, at the end of the investigation of preliminary stage, the police would give lame duck excuse that while carrying out investigation for verification of commission of such offence or not, police could not get information and commission of commission of such offence since evidences have been destroyed by the time stage arrived at for recording of the FIR,” the petition reportedly states.

Representing the petitioner, Advocate B.M. Mangukiya was quoted as saying, “FIRs against corrupt officers and outcome of investigations have adversely affected the image of the state government. This circular, if it survives, will create a situation in which corruption on part of government officials cannot be reported at all.” He claimed that the circular was clearly aimed at protecting corrupt Government officials. The petition is likely to come up for hearing next week.

In the Lalita Kumari Case, the Constitution Bench issued the following Guidelines relating to registration of FIR

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

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

iii) If the inquiry discloses the commission of a cognizable 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 cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable 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 cognizable 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 15 (Maximum 6 Weeks). 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 cognizable 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.