By Abhinav Sekhri
Six year old Lalita Kumari went missing from near her house on the night of May 5, 2008. When she did not come back, her father filed a missing persons report. A week later he was told that his daughter had been abducted, and so he filed a complaint with Police Station Loni, Ghaziabad, Uttar Pradesh. The police did not even register a First Information Report under Section 154 of the Criminal Procedure Code of 1973, in turn compelling Bhola Kamat to write to the Senior Superintendent of Police, Ghaziabad.
It was only on the direction of the Superintendent of Police, Ghaziabad, that FIR No. 484 was registered by Police Station Loni on 06.06.2008, under Sections 363, 366, 506, and 120-B of the Indian Penal Code. Things did not end here. The police refused to carry out a proper investigation, as per Kamat, unless he paid up. This led to Bhola Kamat invoking the extraordinary jurisdiction of the Supreme Court and file a habeas corpus petition to produce his missing child. This petition was registered as Lalita Kumari v. Government of Uttar Pradesh & Others [W.P. (Crl.) 68 of 2008].
The Five-Year Journey of Lalita Kumari
The records of this case do not clearly reflect what happened in respect of the main plea seeking production of Lalita Kumari. Instead, right from the outset, the focus of the proceedings appears to have become the purported inaction of the local police in registering the case. On the first date itself, the Bench of Justices G.S. Singhvi and B.N. Agrawal noted that:
“[I]t is a matter of experience of one of us … that in spite of law laid down by this Court, the police authorities concerned do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. … On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed … “
This apparent class-divide prompting the workings of the criminal process compelled the Bench to observe that it was “high time to give directions” to the governments to make police accountable for not only registering FIRs but also handing over copies, and where it was not being done, then to hold the errant officials accountable.
While it took some time to get responses from all states and union territories, very early on it became clear to the bench that it had, unwittingly almost, touched upon an arena of several contradictory views expressed in earlier opinions. There certainly was a line of judgments which implored prompt registration of FIRs where information disclosed commission of cognizable offences and sought to exclude any discretion in this matter with the police. This, however, coexisted with judgments which called upon the police to tread cautiously and make sufficient inquiries because registering an FIR, as per this view, was a critical stage that ought not to be triggered lightly.
As a result, Lalita Kumari’s petition first went before a Bench of Three Justices and remained there for almost four years. On 27.02.2012, this bench of Three Justices concluded that the conflict of opinion on the issue was such (both, in terms of precedent as well as the views taken by all the States and Union Territories) that it would be best for a Constitution Bench to settle the matter once and for all. The outcome of this exercise the decision reported as (2014) 2 SCC 1, titled Lalita Kumari v. Government of Uttar Pradesh & Others [“Lalita Kumari“]. From a criminal process standpoint, it is arguably one of the most important decisions over the past decade, and it is credited with having held that a police officer must register an FIR when information discloses the commission of a cognizable offence.
Critiquing the Constitution Bench Judgment
That the issue of non-registration of FIRs is still very much a live one since Lalita Kumari was decided is a well-known fact. In no small measure is this attributable to the class divide that the Bench had taken note of in its very first order — it is usually the cases filed by the haves that are resolved at a supersonic jet speed, while those of the have-nots continue to be neglected. Given this institutional malaise, hardly any significant critical engagement has happened with what the judgment in Lalita Kumari itself did. It is unacceptably simplistic to conclude that Lalita Kumari has held that FIRs must be registered and that it does not happen is because of rogue elements in the force.
Instead, I argue that Lalita Kumari actually failed to discharge its mandate of clarifying the law and, thus, has also contributed to the current state of affairs. While the Bench set out to resolve contradictory views, what it ended up doing was to place that contradiction at the very heart of the decision, and complicated things further. [Earlier posts on interpreting Section 154 are here, and here]
As a starting point, let us extract the complete paragraph from the Constitution Bench judgment which is supposed to lay down the law:
In view of the aforesaid discussion, we hold:
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 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry [Note: this was clarified to read 21 days by a subsequent order in the matter].
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.
Reading this paragraph in full makes it clear that there is no unequivocal directive being issued that the police must register FIRs. The judgment only held that police must register where information discloses a cognizable offence, and this one word changes everything. In affirming that FIRs need only be lodged if police find that a cognizable offence is disclosed, what Lalita Kumari does is unequivocally accept that there is clear discretion and application of mind being exercised by the police at this stage. FIRs are, therefore, matters of moment and not mere administrative exercises of power.
Having recognised, albeit indirectly, that registration of FIR is an exercise of police discretion, it fell to the Court to clarify the scope and extent of the same. This is what the subsequent paragraphs try to do. A preliminary inquiry may be conducted where the information does not disclose a cognizable offence, but this does not extend to verifying the veracity of the allegations, rather it is “only to ascertain whether the information reveals a cognizable offence” and must be done promptly.
By saying the same thing through a slightly different combination of words, the Court does not manage to offer any clarity on the issue. How will the police conduct this inquiry all the while staying clear of going into the merits? Can they call for documents or summon persons to question them? Can potential accused persons be called to the station as well? Since there is no clear recognition of such preliminary inquiries within the Criminal Procedure Code, what legal status will any such requests for documents or oral clarifications carry? These are only some necessary questions which arose once the Court affirmed the practice of preliminary inquiries, which continue to pose troubling questions till today.
In a judgment focused upon police discretion in the context of registering FIRs, the Court paid hardly any attention to issues of discretion that went beyond the mere registration of the FIR and touched upon the contents of such documents. Specifically, on the offences themselves that are disclosed.
Let me explain. There is a gap between information which a layperson brings to the police and the “First Information Report” which is born as a result of that interaction. This transformative exercise is, in many cases, not purely administrative because the informant will often not speak the language of the penal code. It will fall to the police to figure out which offences are made out, and view that information from the lens of mens rea and actus reus. Often, it will also fall to the police to decide which offences should be picked where the information discloses commission of both generic and special crimes.
These are not academic issues but carry significant liberty-related consequences, for the same narrative may not only trigger both cognizable and non-cognizable offences, but also offences where bail is a matter of right and others where no such right exists. All these aspects are also an element of discretion vested with the police officer, and required discussion, if not regulation, by the Court in Lalita Kumari. After all, the Court itself had framed the issue as requiring police to identify if cognizable offences are disclosed. Yet, these aspects of discretion wielded by police went entirely unnoticed.
Lalita Kumari ultimately failed to deliver on its initial promise. Legally, it did not clarify much. What it did very well was to prolong the status quo and keep all stakeholders happy. Victims are told that police are duty-bound to register FIRs for cognizable offences, while police are told that they are duty-bound to register cases if the information they get discloses the commission of cognizable offences. For good measure, failure to register cases could attract action, which again only continued status quo. In having taken up the issue of police discretion while registering cases, the Court had the perfect opportunity to take a closer look at the role played by police in framing the case and invoking offences at this initial stage of the process. It did not even recognise the significance of this power wielded by police officers, let alone meaningfully engage with it.
The exercise of discretion by police officers at Loni, which caused Bhola Kamat to run from pillar to post to get a case lodged for his abducted daughter, came out relatively untouched after the long journey that the Lalita Kumari petition had in the Supreme Court. It remains the principal reason why the police can refuse to register FIRs outright. What has changed, though, is that where victims and police would have earlier cited different precedent, today Lalita Kumari gives the answers for both sides in the room, by not really answering anything at all.
[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’.]