A while back, this blog begun a discussion on Section 154 Criminal Procedure Code 1973 [Cr.P.C.], the provision considered as the basis for perhaps the First Information Report [FIR]. The previous post had covered important history and ran through the previous incarnations of the procedural code. This exercise laid bare the various little tweaks that eventually resulted in the current Section 154 Cr.P.C. We left the post with one pointed observation: till the 1882 Code, the relevant provisions merely spoke of every information or complaint given to the police. From 1882 onwards, though, the statute now referred to situations where the public gave information relating to the commission of a cognizable offence. The issue, then, was this: who decided whether the information provided to the police relates to a cognizable offence?
Revisiting Lalita Kumari
This question lay at the heart of the reference made to a Constitution Bench of the Supreme Court in Lalita Kumari v. State of Uttar Pradesh [(2014) 2 SCC 1]. The Court was called on to decide whether it was mandatory for the police to register an FIR in each and every case. If Section 154 Cr.P.C. privileged the viewpoint of the police, then discretion was inbuilt into the provision to allow police to not register cases where it thought information did not relate to commission of a cognizable offence even where the complaint stated otherwise. But, if the viewpoint of the informant was seen as driving Section 154, then every complaint stating a cognizable offence is committed must result in an FIR.
Before this, an overwhelming majority of decisions had held no discretion ought to be present with the police, barring some very particular cases. For instance, Jacob Mathew [(2005) 6 SCC 1] held an FIR ought not to be immediately registered on a complaint alleging medical negligence against doctors. At the same time, the Supreme Court was not ignorant of how one's liberty could potentially be curtailed if an FIR was registered naming her. This possibility of abuse had led various states (led by Maharashtra) to argue for a discretionary model. The fallacy of the argument was that possibility of improper enforcement does not make the law bad, and it was not surprising to see the Supreme Court reaffirm the line of authority which held an FIR had to be registered.
This meant the Court thought the perspective of a complainant / informant is what guides the phrase "information relating to the commission of a cognizable offence" found in Section 154 Cr.P.C. Before concluding, though, the Court gave a set of 'conclusions / directions' [In Paragraph 120 of the SCC version]. These allowed for the police to conduct a 'preliminary inquiry' in cases where "the information received does not disclose a cognizable offence". This preliminary inquiry can last for 21 days [the initial time-limit of 7 days was changed in March 2015] and if the officer concludes no cognizable offence is made out then the informant must be notified. The court indicated that "as to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case" but went ahead and specified five areas as illustrations where an inquiry may be conducted: (i) matrimonial cases, (ii) commercial offences, (iii) medical negligence cases, (iv) corruption cases, (v) cases with abnormal delays on reporting (over 3 months).
Effectively, the Court bought the abuse argument and undid all the previous 119 paragraphs telling us that registration of an FIR is mandatory and how immediate registration brings various benefits. Not only this, but as subsequent practice across courts would reveal, the case has perversely given birth to an argument that preliminary inquiry must be conducted in the cases that find specific mention in the concluding paragraph. So, not only did the Supreme Court permit 21 day delays on the registration of an FIR, it also compounded delays by giving rise to petitions challenging the registration of FIRs where no inquiry was done. On a more theoretical level, we see how the Court never really answered the reference. In fact, the concluding paragraph leaves the basic question in limbo. If anything, it tells us that at the end of the day, it is the police whose word decides whether or not information is relating to commission of a cognizable offence in Section 154 Cr.P.C.
A Heretic's Guide to Section 154 Cr.P.C.
Since this part of the post offers proposals that are never going to see the light of day, we can call it my purely academic pursuit and proceed further. Reading Sections 154, 155 and 157 together, I argue that Section 154 was never meant to deal with something like the FIR as it exists today across most police rules. In this reading, I am buttressed by history and the evolution of these provisions over the various re-drafts of the code. The FIR is a historical oddity, for which the correct statutory basis, if any, is Section 157.
Take a moment and go back to the 1861 and 1872 versions of the Code. The evolution seems focused on (i) record-keeping through entry into a diary, and (ii) ensuring the genuineness information by making informants sign on it. Nothing in these provisions, and even in Section 154, spoke about the investigative powers of the police. That, always, had been the prerogative of Section 157 and its predecessors. 154 talks about information, 157 says that "from information or otherwise" the police can investigate. Before 1882, this scheme neatly refused to comment upon the kind of offences disclosed in the information sections which, at the cost of repetition I state, was unfortunately blurred in 1882 by Section 154 and Section 155.
Even so, what is clear is that Section 154 neither speaks of reports nor does it speak of investigations. Section 157 speaks of both. Section 157 says that if the police officer "has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate ..." If the officer thinks there is insufficient grounds to investigate, then the officer is required to explain this in the report and notify the informant. If you look at an FIR [I have not been able to find one blank FIR online] you will find all these requirements etched out in various columns. This, together with everything before, confirms my suspicions that the big header that reads "First Information Report under Section 154 Cr.P.C." on an FIR is certainly legally incorrect. It should have always been Section 157. If we do that now, then all this confusion is taken care of as well. Just insert the time-limit of 21 days into Section 157 and the entire Lalita Kumari architecture is rendered superfluous.
To conclude, I offer my alternate reality. In my world, Section 154 would simply mean registering the information received by the police in a diary / register / notebook / computer. Section 155 would operate if the police thought that the information disclosed a non-cognizable offence. The informant would be referred to the Magistrate, who may yet be convinced that the information disclosed a cognizable offence and then Section 156 allows necessary directions to be passed. Section 157 talks about cases where the police thinks a cognizable offence is disclosed / is told that such an offence is disclosed [Section 156(3)] and decides what to do next. This creates a report, which would be called a First Information Report, since this is the first information the Magistrate receives of the possible offence. Lalita Kumari would never have happened, and the docket might have been a shade lighter.