Time for a Seven-Judge Bench Reference to resolve the FIR conundrum?

~By Abhinav Sekhri

On 12.08.2022, the Supreme Court in XYZ v. State of Madhya Pradesh & Ors. [Crl. Appeal No. 1184 of 2022] set aside an order of the Madhya Pradesh High Court, and directed that a First Information Report [“FIR”] ought to be registered under Section 154 of the Criminal Procedure Code, 1973 [“Cr.P.C.’] by the local police on the complaint of the Petitioner XYZ. The allegations were of sexual offences being committed by persons occupying positions of responsibility in the place of work of XYZ. 

In its order, the Court made important observations about the roles of both police and courts when dealing with such cases. In respect of the courts considering applications for directing police investigations, the Supreme Court accepted that there was an element of discretion here, but in respect of sexual offences the courts ought not to “further burden” victims and “press upon the police to investigate” cases [Para 25]. In respect of the police, it referred to the Constitution Bench judgment in Lalita Kumari [(2014) 2 SCC 1] and noted that:

“18. Whether or not the offence complaint of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence s made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR. The law in this regard is clear – police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence.” [emphasis mine] 

Five days later, on 17.08.2022, a Single Judge Bench of the Delhi High Court passed an order in Syed Shahnawaz Hussain v. State & Anr. [Crl MC No. 3456/2018]. This, too, involved alleged sexual offences – rape, no less. The petition was filed in 2018 challenging orders of a magistrate directing that an FIR be registered (the High Court proceedings arose after a Sessions Court had rejected a revision petition against the magistrate order). 

By way of an interim order of 13.07.2018, the High Court had stayed registration of an FIR. Four years later though, the High Court dismissed the petition and directed police to register the FIR and proceed with a speedy investigation. While it did not cite XYZ v. Madhya Pradesh, the High Court also invoked Lalita Kumari to conclude that the decision as to whether or not an offence was made out was the result of an investigation after lodging an FIR, and could not be relied upon to forestall lodging an FIR itself.

Another five days after the order of the High Court, it was challenged [SLP (Crl.) 7653/2022] and came before a different bench of the Supreme Court than XYZ v. State of Madhya Pradesh. This bench on 22.08.2022 stayed operation of the High Court’s and has, for now, returned the case to cold storage.

The contrast between the positions adopted in XYZ v. State of Madhya Pradesh—where the police had also conducted an inquiry and found no offence was made out—and the arguments of the Petitioner in Syed Shahnawaz Hussain could not be more striking. In the former, the Court emphatically rules out an element of discretion for the police in registering FIRs where complaints make out cognizable offences. Whereas in the latter, it is precisely the exercise of this discretion that the Petitioner submits is laudatory and ought to be considered by courts. Admittedly, only an interim order has been passed by the Supreme Court so far in the petition, but interim orders are only passed where the court thinks some merit exists in the case. As the order itself notes, the Court thinks that the issues “require consideration”.

Both XYZ v. State of Madhya Pradesh and Syed Shahnawaz Hussain ultimately trace their roots back to the Constitution Bench judgment of the Supreme Court in Lalita Kumari, and I would argue that is where the problem lies. This very issue of whether police officers have any discretion to register FIRs was placed before the Constitution Bench, and in a remarkable judgment, the Court failed to resolve it with the level of clarity that it required [as explained at length in a different post]. Lalita Kumari failed to sufficiently decide what is an FIR — is it simply a ministerial act required to be done by the police once they receive a complaint, or is it something more? 

The text of the Cr.P.C. suggested it should be the former, but practice suggested that lodging of an FIR was a critical stage in the process, indicating that a formal accusation had been made by the state legitimising exercise of its coercive powers and imposing collateral consequences for persons (such as difficulties in obtaining passports or government jobs). If an FIR is such a critical stage, surely it cannot be reduced to the stage of a ministerial act, and must allow an element of discretion to ensure frivolous cases aren’t lodged without requiring a full-blown investigation every time. 

After vacillating between the two views, the Court tried to adopt a middle path, which meant not deciding the issue one way or another, and without even considering the deeper issue of if there is no discretion in the police lodging an FIR, what about discretion in choosing the offences that it is invoking. Ultimately, it held that there is no discretion in lodging an FIR, but there is still some discretion in some cases, and did not say anything about deciding which offences are made out. 

The equanimity within Lalita Kumari has been reflective in practice ever since. It has meant that parties on both sides of the spectrum can invoke the same Constitution Bench judgment to make their case, which must be a unique distinction but certainly has left the practice of law poorer. The sharp contrasts between these two cases around alleged sexual offences highlighted in this post are only the most recent examples of the problems that this judgment has fostered. 

Would referring Lalita Kumari to seven judges help? I am not sure, because it is not possible for the courts to sufficiently resolve the complex problem of unravelling the significance of an FIR. Nevertheless, a clear judgment could help restore some clarity by looking closely at the scheme of the Cr.P.C. which does allow for some elements of discretion, albeit not at the registration of FIR itself. 

Perhaps it could even result in a de-linking of the registration of an FIR from collateral consequences, and allow a level of judicial oversight to come in between giving the process greater fairness and pre-emptively securing liberty interests. 

In that reference, a related and equally critical issue must be considered – the role of magistrates through the investigation process. Both XYZ v. State of Madhya Pradesh and Syed Shahnawaz Hussain concerned a magistrate’s powers under Section 156(3) of the Code to direct the police to conduct investigations. This is one amongst many other clauses which bring the magistrate within the investigative process. 

Sitting along side this statutory involvement of magistrates in investigations, there exists a strong judicial view—stretching all the way back before independence—that courts and police operate in separate silos. A seven-judge reference would be an apt opportunity to reflect on the relative merits of this approach. 

Till that day comes, Lalita Kumari and its vacillation will continue to plague the system. 

[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’]


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