Police Officer Not Obligated To Register FIR On Information About Offence "Likely To Take Place": Karnataka High Court

Case Background:

Petitioner Iqbal Ahmed had approached the court challenging the conviction handed down to him under sections 419, 420, 468 and 471 of IPC, and section 12(1)(b) of the Passports Act.

He was apprehended on the basis of information received by the Police that some persons were involved in creation of forged and fabricated passports for the purpose of human trafficking and that they would be approaching the employees of the IBM Company, Manyata Tech Park, Bengaluru.

The inspector formed a team and went to the place, apprehended the suspects and recovered some implicatory items. During the investigation, one of them gave a voluntary statement disclosing the involvement of Iqbal Ahmed. The petitioner was thus arrested when a personal search of the petitioner was conducted. He had with him a passport he also gave a voluntary statement which led to recovery of another passport.

The order of conviction passed by CBI Court was confirmed by the Sessions Court, against which the petitioner instituted present proceedings.

Court findings:

Senior Advocate Hashmath Pasha referred to the judgement in the case of Lalita Kumari vs Government of Uttar Pradesh and Others [(2014) 2 SCC 1] and submitted that the investigation was vitiated since PW 1 (police officer) received definite information about a crime being committed when he was in police station, but did not register an FIR before going to the spot.

The argument came to be rejected by the court stating that,

"The clear ratio laid down is that whenever information discloses commission of a cognizable offence, registration of FIR is mandatory. The sentence in section 154(1) Cr.P.C commences thus, "Every information relating to commission of a cognizable offence...That means, by the time information is given to a police officer, an offence should have been committed. It is in this context that Lalita Kumari obligates a police officer to register FIR first before taking up the investigation. Registration of FIR is a mandatory requirement to rule out possibility of embellishments, improvements and exaggeration of events in course of time."

It held, "PW1 did not receive any information that an offence had already been committed before he proceeded to take action based on the informant's message. Mere securing of panchas before going to spot does not lead to an inference that information was definite."

Mere marking a portion in the confession statement leading to discovery is not sufficient

Pasha also submitted that unless recovery based on disclosure is legally proved, inculpatory inferences against an accused cannot be drawn. He submitted that when an independent witness to seizure panchnama for recovery of Ex.P5 turned hostile, evidence of PW1 alone was not sufficient. He also argued that PW1 did not speak the very same words that are marked as Ex.P4, a portion of confession statement.

Advocate P Prasanna Kumar for the prosecution opposed the submission and said though PW8 turned hostile, he gave a clear admission in the cross-examination that he had deposed falsely to help the accused, and this admission would establish that he was very much present when Ex.P5 was seized.

The bench said, "There is no rule as such that testimony of the investigating officer should not be believed without corroboration from independent witnesses. It is not necessary that an investigating officer should repeat the portion of a confessional statement leading to discovery of a fact which is within the knowledge of the accused. If the testimony of the investigating officer is trustworthy, it can be acted upon, and this principle is well settled."

Offence under Passport Act Committed:

Pasha argued that there is no evidence to show that the petitioner used the passport Ex.P5, that there is no evidence that he forged the passport and that probability in defence evidence is not considered at all.

Kumar countered it by saying that Ex.P5 (forged passport) contains immigration seals of various countries, and these seals indicate that the petitioner visited many countries using Ex.P5. If he did not use it, he alone should have given an explanation as to how Ex.P5 came to be stamped by the immigration department of several foreign countries. Section 106 of the Evidence Act is applicable in a situation like this. Therefore the burden was more on the petitioner than the prosecution.

The bench said, "If the petitioner did not use Ex.P5, he alone should explain as to how it could be stamped by immigration authorities of different countries. Rightly section 106 of the Evidence Act can be employed in a situation like this. Since there is no explanation, inference under Section 114 of Evidence Act can be drawn that the petitioner might have used Ex.P5 for visiting different countries."

Prosecution failed to prove it obtained sanction as required under section 15 of the Passports Act.

Pasha argued that though the prosecution produced a sanction order as per Ex.P21, its mere production does not amount to proof. The competent authority who issued the sanction order should have been examined. Since he was not examined, the petitioner lost an opportunity of questioning him whether or not he had applied his mind before passing the sanction order. In this view, the entire prosecution is vitiated.

The court held,

"Once sanction order was produced and marked; and if its validity was not questioned before the trial court and also the appellate court, it cannot be questioned in the revision. Mere marking is not a proof is a general principle of appreciation of evidence. According to Section 62 of the Evidence Act, primary evidence means document itself. If a document is produced, and if its execution is disputed, then the principle "mere marking of a document does not amount to proof" is applicable. The person who executed a document or its attestors must be examined."

It added, "The sanction order is not incriminating evidence against the accused. Assuming that there is valid sanction and that the competent authority is also examined before the court, it cannot be said that based on such evidence, the accused can be convicted. All that the competent authority through his order granting sanction states is that he is convinced about the existence of materials for prosecuting the accused, but it is not inculpatory material against the accused."

Further it said, "Omission to put a question to accused under section 313 Cr.P.C, unless it is demonstrated that it has resulted in miscarriage of justice or the interest of the accused is prejudiced substantially, cannot be considered to be a good ground for upsetting the judgment of conviction."

Pasha had also argued that right from the beginning, that is, from the stage of registration of FIR till conclusion of investigation, the investigator did not follow the procedure established under law and thus Article 21 of the Constitution was offended

However, the bench held that Article 21 applies when personal liberty of a person is deprived without following the procedure. It said, "There is a great lot of difference in no procedure being followed and infraction in the procedure. While following the procedure, if a mistake occurs or if there is infraction, it cannot be said that personal liberty is affected unless the person complaining of violation of Article 21 demonstrates as to how his liberty is affected substantially or his interest is prejudiced affecting liberty."

Accordingly it dismissed the petition.

Case Title: Iqbal Ahmed v C.B.I. SCB

Case No: CRIMINAL REVISION PETITION NO.538 of 2014

Citation; 2022 LiveLaw (Kar) 110

Date of Order: 22ND DAY OF MARCH, 2022

Appearance: Senior Advocate Hashmath Pasha a/w advocate Budrannisa for petitioner

Advocate P. Prasanna Kumar for respondent

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