“Preliminary inquiry”, An Unnecessary Judge-Made Conundrum And It’s Scope Misapplied In “Lalita Kumari”

I propose to confine this article only with regard to the preliminary inquiry conducted in anti-corruptions cases, though the Apex Court of this country has enlarged the need for preliminary inquiry in other categories of cases as well. The first part of this article is devoted for convincing the readers about the illegality in the police conducting a preliminary inquiry before registering an FIR against a public servant in anti-corruption cases and the necessity to discontinue the preliminary inquiry. The second part of this article is utilized for the purpose of showing that even if a preliminary inquiry before the registration of an FIR is considered necessary in anti-corruption cases, the scope of such inquiry has been totally misapplied by the five Judges’ Constitution Bench in Lalita Kumari v. Government of Uttar Pradesh – (2014) 2 SCC 1.

Preliminary inquiry or quick verification by a police officer before the registration of a crime under Section 154 Cr.P.C, is a Judge-made procedure which is not contemplated by the Cr.P.C. The said procedure is justified on the ground that it is not prohibited by the Cr.P.C. When there is already a criticism that the procedure under the Cr.P.C is unduly lengthy and needs to be simplified, if Courts were to devise, through judicial legislation, further deviations in the matter of investigation, inquiry or trial, it will certainly add to the abysmal problem of liquidating the mounting arrears both before the investigating officers and in the trial Courts.

WHY A PRELIMINARY INQUIRY ?

Cr.P.C does not contemplate a preliminary inquiry before the registration of a crime under Section 154 Cr.P.C. In anti-corruption cases, preliminary inquiry sought to be justified on the ground that “incalculable harm will be caused to the public servant and his department if an FIR were to be registered against him without at least a prima facie satisfaction that the complaint of corruption against the public servant is genuine”. Even if we were to concede that a public servant cannot be equated with an ordinary citizen and hence falls under a reasonable classification, why is it that such a protection is afforded to a public servant at the threshold itself ? Even otherwise a public servant is protected by the mandate of a prosecution sanction both under Section 197 Cr.P.C and under Section 19 of the P.C Act, 1988 without compliance of which he cannot be prosecuted at all. If the argument is that consequent on the registration of an FIR against a public servant he may entertain a reasonable apprehension that the power of arrest will be misused in violation of his rights under Chapter V Cr.P.C and Article 21 of the Constitution of India, paragraphs 106 to 114 of Lalita Kumari itself has allayed such apprehensions by holding that arrest is not a necessary concomitant of the registration of an FIR and that the provisions for anticipatory bail and regular bail are adequate enough to safeguard the anxiety of the accused. It is unreasonable to assume that every functionary whether it be the police or the public prosecutor or the defense lawyer or even the presiding Judge will not act fairly, reasonably and honestly. The law maker cannot start with a presumption that any one of the above stake holders will only act illegally or dishonestly. In the hands of an unscrupulous police officer, public prosecutor, defense lawyer or a Judge, nobody will be safe. But that is no reason to assume that every functionary will act illegally.

Even without the conferment of any power to conduct a preliminary inquiry, every Station House Officer (“SHO” for short) has the inherent power, and he does exercise that power, to ascertain the genuineness of a complaint before registering an FIR or at least before entering upon investigation after the compulsory registration of an FIR. Supposing the SHO receives a telephonic information from an anonymous source regarding the commission of a cognizable offence by a named offender, the SHO will be justified in ascertaining the genuineness of the complaint by verification through other sources or by personal verification before registering an FIR. Similarly, if a mad man were to approach the SHO with a complaint (whether written or oral) regarding the commission of a cognizable offence, no sensible SHO will straightaway register an FIR. No doubt, if the complaint on the face of it discloses the commission of a cognizable offence, Section 154 Cr.P.C and the case law interpreting the said Section, mandates the SHO to register an FIR. He has no other option. But is there any guarantee that by registering the FIR no injustice will be done in all cases ? There can be situations in which a complaint is drafted by a legal brain giving no room for any doubt or ambiguity even though the allegations made therein may be false. But the SHO has no option except to register the FIR. The resultant injustice can be remedied either before entering upon investigation or during investigation or still later, during trial. Hence, with due respect I do not find any justification in the Court directing the police to conduct a preliminary inquiry before the registration of a crime in certain categories of cases enumerated by the Apex Court. If the complaint, on the face of it, does not make out a cognizable offence, the SHO can refuse to register an FIR . In such a case, the feasibility of a provision obliging the SHO to furnish his reasons to the complainant and possibly to the Magistrate concerned, could be thought of.

If the refusal to register an FIR is due to the absence of the necessary averment disclosing the commission of a cognizable offence, such refusal cannot obviously debar the complainant from lodging a proper complaint. Instead of that, if the police were to be directed to conduct a preliminary inquiry so as to unearth a cognizable offence, it amounts to burdening the police with a duty which the law has not imposed on them. In cases where preliminary inquiry has been ordered by the Court, what actually takes place is a mini investigation during the course of which statements of witnesses are recorded and documents or their certified copies are seized consuming the precious time and energy of the police officer concerned. The time limit of seven days originally fixed by Lalita Kumari for completing the preliminary inquiry, has since been extended to fifteen days which can even go up to six weeks (42 days) provided adequate reasons are given. If after conducting the preliminary inquiry, the officer were to file a report before the Special Court constituted for the trial of offences under the P.C Act, 1988 and the report were to the effect that no cognizable offence is disclosed, the procedure now in vogue is to give copies of the report and the materials to the complainant who is given an opportunity of being heard so as to convince the Special Judge to direct the registration of an FIR. There are Special Judges who order preliminary inquiry with a direction to submit a report thereby reserving to themselves the power to direct or not to direct the registration of an FIR without leaving that freedom to the SHO. In some Special Courts it is only if the preliminary inquiry does not reveal cognizable offence, will the Special Judge reserve with him the power to order the registration of an FIR or not. So far, to my knowledge and luckily for the prosecution, no defense lawyer has, during the trial of the case, requested for copies of statements recorded and materials seized during the preliminary inquiry. If a request is made for copies of statements of witnesses (which are undoubtedly previous statements and which can probably be used for both contradiction as well as corroboration in the absence of the bar under Section 162 Cr.P.C), on what ground can the police refuse to furnish the copies? On the strength of State of U.P v. Bhagwant Kishore Joshi – AIR 1964 SC 221 & Chandrababu v. Sub Inspector of Police – 1988

KLT 529 it could even be argued that whatever the police did before the formal registration of FIR is nothing short of investigation and hence the bar under Section 162(1) Cr.P.C will apply to the statements recorded during such preliminary inquiry. All these complications are bound to follow from an order for preliminary inquiry and I honestly wish that the Apex Court will seriously consider whether such a procedure should be continued or not. If the allegations in the complaint disclose a cognizable offence, the SHO is bound to register an FIR. If on the contrary, the averments in the complaint do not make out a cognizable offence, the matter should end there by the SHO refusing to register an FIR . Desirably, the SHO can furnish his reasons for doing so to the complainant and to the Special Court if adequate provisions in that behalf are made. Unless statutorily obliged, it is not the function of the police to conduct an inquiry to find out whether a cognizable offence has been committed notwithstanding that the complaint on the face of it does not reveal one. The Court also cannot direct the police to conduct such inquiry. Probably, the official superiors or the Government can order such inquiry. A complaint which falls short of the necessary allegation, should meet with the inevitable fate of rejection at the threshold.

POLICE HAVE NO POWER TO CONDUCT ANY INQUIRY

“Inquiry” is an exercise which as per Section 2(g) Cr.P.C, is earmarked for a Magistrate or a Court and certainly not for the police. Section 2(g) Cr.P.C reads as follows :-

“Inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court”

Sections 159, 176, 202, 340, 451, 452 Cr.P.C are some of the provisions entitling a Magistrate or a Court to conduct an inquiry. Sections 137, 145, 146, 147, 148 Cr.P.C are some other provisions enabling an Executive Magistrate to conduct an inquiry. There is no provision in the Cr.P.C empowering a police officer to conduct an inquiry. It was noticing the absence of power in the police officer to conduct an inquiry which prompted the Constitution Bench in State of Gujarat v. Shyamlal Mohanlal Choksi – AIR 1965 SC 1251 to hold that the accused cannot be directed under Section 91 Cr.P.C to produce an incriminating material in his custody. Hence, directing a police officer to conduct an inquiry looks incongruous.

IF PRELIMINARY INQUIRY IS TO STAY, WHAT IS THE SCOPE OF SUCH INQUIRY ?

The purpose of ordering a preliminary inquiry before the registration of an FIR is for the protection of the public servant concerned and the department in which he is serving. By the very nature of his office, a public servant may have to turn down the requests of many who may approach him for official favours. There may be disgruntled elements who on being disappointed in currying favours from the public servant, would be waiting for an opportunity to frame him in some vexatious proceedings against him. That explains the need to insulate the public servant with some protective cover. The first step in the direction ofpreliminary inquiry by a police officer was made in a three Judge Bench verdict of the Supreme Court in State of U.P v. Bhagwant Kishore Joshi - AIR 1964 SC 221. In the concurring judgment of Mudholkar – J the need for verifying the correctness and reliability of the source of information was highlighted. This is what the learned Judge observed :-

“Merely making some preliminary enquiries upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. In the absence of any prohibition in the Code, express or  implied, I am of opinion that it is open to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it .”

The above passage was affirmed and approved in Para 78 of State of Haryana v. Bhajan Lal - 1992 Supp (1) SCC 335 (corresponding to Para 80 of AIR 1992 SC 604).

In Paragraphs 17 and 19 of P. Sirajuddin v. State of Madras -(1970) 1 SCC 595 = AIR 1971 SC 520 the Apex Court held as follows:-

“Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanor or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging a such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general”.

“19. All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case: howsoever serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime, the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging of a charge-sheet. Clearly the idea is that no one should be put to harassment of a criminal trial unless there are good and substantial reasons for holding it.”

The above observations in Sirajuddin’s case were noted with approval in Para 53 of State of Bihar v. P.P. Sharma - 1992 Supp  (1) SCC 222.

In Paragraph 77 of State of Haryana v. Bhajan Lal - 1992 Supp SCC 335 the Supreme Court further emphasized as follows:-“In this connection, it will be appropriate to recall the views expressed by Mitter - J in P. Sirajuddin v. State of Madras in the following words :-

“Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanor or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging a such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general………………………….. The means adopted no less than the end to be achieved must be impeccable”.

In paragraph 14 of Navinchandra N. Majithia v. State of Meghalaya - (2000) 8 SCC 323 – 3 Judges, the observations in paragraph 19 of Sirajuddin’s case were noted with approval by Justice K.T. Thomas who rendered the judgment.

In Para 23 of Shashikant v. Central Bureau of Investigation -(2007) 1 SCC 630 (corresponding to Para 21 of AIR 2007 SC 351) the above observation in Sirajuddin’s case was re-stated besides adverting to Bhagwat Kishore Joshi’s case and Bhajan Lal’s case. (In this case, after preliminary enquiry, the CBI did not recommend prosecution but recommend departmental action only. Shashikant, the whistle blower in that case challenged before the High Court the action of the CBI in not prosecuting the officers. The High Court dismissed his petition. The Apex Court also confirmed the verdict of the High Court.

In paragraph 17 of Ashok Tshering Bhutia v. State of Sikkim - (2011) 4 SCC 402 the Supreme Court adverting to the above observations in Sirajuddin’s case and Bhajan Lal’s case held that the law declared by the Supreme Court in those decisions is binding on everyone under Article 141 of the Constitution of India and would by all means override the statutory provisions of Cr.P.C and any failure to do so would not be an irregularity curable under Section 465 Cr.P.C. (The two Judges who rendered this verdict are Justice P. Sathasivam and Dr. Justice B.S. Chauhan.)

It was thereafter that the 5 Judges’ Constitution Bench in Lalita Kumari v. Government of U.P and Others - (2014) 2 SCC 1 considered the question again. Interestingly, Justice P. Sathasivam and Justice B. S Chauhan who rendered the verdict in Ashok Tshering Bhutia’s case are parties to Lalita Kumari’s case. The judgment of the Constitution Bench is rendered by Chief Justice P. Sathasivam.

(1) Para 117 upholds Sirajuddin Vs. State of Madras – AIR 1971 SC 520 = (1970) 1 SCC 595 by observing as follows :-“In the context of offences relating to corruption, this Court in P.Sirajuddin expressed the need for a preliminary inquiry before proceeding against public servants

NOTE: Here there is no syllable of dissent raised against Sirajuddin nor the purpose for which Sirajuddin held that a preliminary inquiry should be conducted.

(2) Para 120-3- If the preliminary enquiry discloses the commission of a cognizable offence, the F.I.R. must be registered.

(3) Para 120-5 – says that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

NOTE:This runs counter to Sirajuddin, P.P. Sharma, Bhajan Lal, Navin Chandra Majithia, Sashikant, Ashok Tshering Bhutia.

(4) Para 120-6 – Enumerates the categories of cases in which preliminary inquiry may be conducted. They are

• Matrimonial disputes / family disputes.


• Commercial offences.


•  Medical negligence cases.


•  Corruption cases.


•  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.

NOTE:  The cases covered under (e) above are those cases where cognizable offences are alleged but there is delay. If so, the scope of preliminary inquiry is not to ascertain whether the information reveals any cognizable offence, but whether satisfactory reasons exist for the delay which is not the scope of inquiry laid down in para 120-5 of Lalita Kumari. Para 120.6(e) itself contradicts para 120.5.

I am, therefore, of the opinion that even if a direction to the police to conduct a preliminary inquiry before registering an FIR, could be given and the law in this regard is to be kept intact, the  purpose of such preliminary inquiry is not as reflected in para 120.5 of Lalita Kumari. Its purpose is to verify whether the information in the complaint is genuine or false or is credible or otherwise. In other words, the object of preliminary inquiry should be to verify at least prima facie, the correctness, veracity and genuineness of the allegations made in the complaint. Without expressing any dissent against any of the earlier decisions (in one of which it was even emphasized that the law laid down in Sirajuddin and Others was binding under Article 141 of the Constitution of India and failure to follow the same would not be a curable irregularity), the purpose of preliminary inquiry limited by Lalita Kumari to mere examination whether a cognizable offence was disclosed or not, does not, in my humble view, appear to be sound, practical or reasonable. To forward a well drafted complaint to the vigilance police under Section 156(3) Cr.P.C means that the registration of an FIR and commencement of investigation will be inevitable. In a country where false implications are disconcertingly rampant, preliminary inquiry (if not discontinued) may be a safety valve for the Special Courts to protect honest public servants from vexatious prosecution.

Justice V.Ramkumar is a Former Judge, High Court of Kerala and Chairman, Advisory Board, Kerala Anti-social Activities Prevention Act.