The Celebrated ‘Lalita Kumari v. Government of  U.P. and Others’;
A Cause of Confusion

(By Nizam Azeez Sait, Advocate, Alappuzha)

The Cardinal Issue Involved in the Case

As stated in the Constitution Bench Judgment in “Lalita Kumari v. Government of Uttar Pradesh and Others(2013 (4) KLT 632 (SC)), the important issue therein for consideration was “Whether a Police Officer is bound to register a First Information Report (F.I.R.) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 or the Police Officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?”

The Back Drop Facts of the Case

On finding his minor daughter missing, Bola Kamath immediately filed a ‘missing report’ in the local police station. Later Bola got information that his daughter had been kidnapped, which was reported to the Police. But the Police did not register a case. Subsequently he approached the Superintendent of Police and as per the direction of the Superintendent F.I.R. was registered. As still the case was not investigated he approached the Supreme Court under Art.32 of the Constitution for issue of writ of Habeas Corpus or direction(s) of like nature.

Reference to the Constitution Bench

The case originally came up before the Bench comprising of B.N.Agarwal and G.S. Singhvi JJ. The Bench expressed grave anguish on the issue of Non-Registration of F.I.R.s in cognizable cases and issued Notices to all Chief Secretaries of the States and also issued various interim directions. (See reported Lalitha Kumari Ordersviz.,

2008 (11) SCALE 154, 2008 (11) SCALE 157, 2008 (11) SCALE 158, (2008) 7 SCC 164). Later, noticing conflict of views the case was referred to a 3 Judges Bench. After detailed hearing, the 3 Judges Bench concluded as under: “..it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench of this Court for the benefit of all concerned--the Courts, the investigating agencies and the citizens.”(Lalita Kumari & Ors. v. Government of U.P.,(2013) 4 KLT 632 (SC)) Accordingly, the case was finally heard by the Constitution Bench.

The Main Provision on the Anvil of Judicial Interpretation in the Case

Section 154(1) Cr.P.C., reads as follows: “154. Information in cognizable cases.-
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”

The Gist of the Arguments before the Bench

The Counsel for the Petitioner, most of the Counsel appearing for different States, the Counsel for the C.B.I. and also the Counsel appearing for the Union of India contendedthat the provision is mandatory in nature and if the information given to a Police Officer relates to the commission of a cognizable offence, then it is mandatory for him to register the case as per Section 154(1) and no preliminary inquiry is permissible. They relied on a plethora of decisions including the 3 Judges bench Judgment in Aleque Padamsee and Others v. Union of India & Ors.(2007 (3) KLT 1028 (SC)). But a few otherscanvassed the contra view that the discretion for preliminary inquiry before registration of an F.I.R. should be held permissible in certain situations as in the case of doubt about the correctness or credibility of the information. The main architects of the pro preliminary inquiry contentions were the learned Senior Counsel Mr.Shekhar Naphade and Mr.Sidharth Luthra. They pleaded for framing of guidelines by the Court in this regard. The bone of their contentions inter aliaas discernable from the judgment could be catalogued as under:

1.Various police rules prevailing in Punjab, Rajasthan, U.P., M.P., Kolkata, Bombay, etc., provide for conducting an inquiry before registering an F.I.R. Reference was also made to Crime Manual of the C.B.I. to highlight that a preliminary inquiry before registering a case is permissible and legitimate in the eyes of law. (See para 17 of the Judgment)

2.The scheme of the provisions of Sections 41,57,156,157,159,167,190, 200 and 202of the Code must be read together and have a bearing on the interpretation of Section 154. Giving a literal interpretation would reduce the registration of F.I.R. to a mechanical act. The word “shall” used in the statute does not always mean absence of any discretion in the matter. (See paras.19 and 20 of the Judgment)

3.The power to carry out an inquiry or preliminary inquiry by the police, which precedes the registration of F.I.R. will eliminate the misuse of the process, as the registration of F.I.R. serves as an impediment against a person. (See para 17 of the Judgment).

4. Registration of an F.I.R. without any scrutiny whatsoever is an extreme proposition and is contrary to the mandate of Article 21 of the Constitution of India. The Ld.Senior Counsel pleaded that the provision should be interpreted in such a manner as to avoid the vice of arbitrariness and unreasonableness.(See paras 19 and 104 of the Judgment).

The Constitution Bench’s Rebuttal of the above Contentions

The Court addressed the above contentions and categorically rejected the same inter aliafinding as follows:

Section 154 Vis-a-VisPolice Acts and C.B.I. Manual

As regard the various inconsistent provisions in the Police Acts and the Rules/Manuals, the Bench held as under:

“If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act, 1861, with regard to the fact as to whether the F.I.R. is to be registered in the F.I.R. book or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus, F.I.R. is to be recorded in the F.I.R. Book, as mandated under Section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as F.I.R.(See Paras 47 to 63 of the Judgment).

As regards the reference to C.B.I. Manual the Bench observed as under;

“…this Crime Manual is not a statute and has not been enacted by the Legislature. It is a set of administrative orders issued for internal guidance of the C.B.I. officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the C.B.I. Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that the C.B.I. is constituted under a Special Act, namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.” The Court after referring to Ss.4 and 5 of Cr.P.C. further observed that;“In view of the above specific provisions in the Code, the powers of the C.B.I. under the D.S.P.E. Act, cannot be equated with the powers of the regular State Police under the Code.”(See paras 79 to 82).

Mandatory Nature of ‘Shall’ Preposition in the Scheme of the Code

The Constitution Bench after referring various Precedents and explaining the scope of the word “shall” in S.154 in the context of the scheme of the Code, categorically held as under;

“ the use of the word ‘shall’ coupled with the Scheme of the Act lead to the conclusion that the legislators intended that if an information relating to commission of a cognizable offence is given, then it would mandatorily be registered by the officer-in-charge of the police station. Reading ‘shall’ as ‘may’, as contended by some counsel, would be against the Scheme of the Code. S.154 of the Code should be strictly construed and the word ‘shall’ should be given its natural meaning. The golden rule of interpretation can be given a go-by only in cases where the language of the section is ambiguous and/or leads to an absurdity.” (paras 36-46 in the Judgment).

Misuse Apprehensions; Unfounded

Regarding the scope for the abuse/misuse of the process of F.I.R., the Court said:

“While registration of F.I.R. is mandatory, arrest of the accused immediately on registration of F.I.R. is not at all mandatory...” The Court referred Joginder Kumar v. State of U.P. & Ors. (1994)4SCC260),wherein it was held that there must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. The Court further opined: “The registration of F.I.R. under Section 154 of the Code and arrest of an accused person under Section 41 are two entirely different things…..It is the imaginary fear that “merely because F.I.R. has been registered, it would require arrest of the accused and thereby leading to loss of his reputation” …..The remedy lies in strictly enforcing the safeguards available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of F.I.R. when the information discloses commission of a cognizable offence.”

The Court also referred 41st Report of the Law Commission and highlighted the following point based on Section 157 of the Code:

“14.1. .... If the offence does not appear to be serious and if the station-house-officer thinks there is no sufficient ground for starting an investigation, he need not investigate but, here again, he has to send a report to the Magistrate who can direct the police to investigate, or if the Magistrate thinks fit, hold an inquiry himself.”

Ultimately, the Court said: “..the apprehension of misuse of the provision of mandatory registration of F.I.R. is unfounded and speculative in nature.”(See Paras 97 to 105).

Mandatory Nature of Section 154; Article 21 Challenge Fails

After extensive discussions on the above lines and specifically on the interpretational challenge based on Art.21, the Court concluded as under:

“There are already sufficient safeguards provided in the Code which duly protect the liberty of an individual in case of registration of false F.I.R. At the same time, Section 154 was drafted keeping in mind the interest of the victim and the society. Therefore, we are of the cogent view that mandatory registration of F.I.R.s under Section154 of the Code will not be in contravention of Article 21 of the Constitution as purported by various counsel.” (Para 105 of the Judgment).

The Contra Views and Perceived Contra Views in Some Previous Judgments

Let us briefly analyse some of such Judgments put forth by the ‘pro preliminary inquiry’ counsel.

P. Sirajuddin v. State of Madras – Corruption Matter

It is true that in P.Sirajuddin v. State of Madras((1970)1SCC595), in the context of corruption cases,the SupremeCourt,speakingthroughJustice Mitter, observed as under:

“Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour 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 of 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.”

Jacob Mathew v. State of Punjab and Another – Medical Negligence Matter

The Judgments relating to Medical Negligence viz., Jacob Mathew v. State of Punjab & Anr.(2005 (3) KLT 965 (SC)) or Suresh Gupta v. Government of N.C.T. of Delhi & Anr.
(2004 (3) KLT 14(SC)),did not specifically deal with the issue of lodging of F.I.R. The cases primarily dealt with the issue regarding the facts to be proved for recording a finding of negligence by a Doctor. Doubting the correctness of Dr.Suresh Gupta, a two Judges Bench referred ‘Jacob Mathew’ to the 3 Judges Bench. The 3 Judges Bench inter aliaheld:

“Negligence in the context of medical profession necessarily calls for a treatment with a difference... The test for determining medical negligence as laid down in Bolam’scase (1957)1WLR 582, 586) holds good in its applicability in India.. What may be negligence in civil law may not necessarily be negligence in criminal law.”

Further the Court issued certain directions for protecting doctors from frivolous or unjust prosecutions. The Court inter aliasaid:

“The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’stest to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him).”

In ‘Jacob’, the Court never spoke about any preliminary inquiry or option of the Police Officer for Non Registration of a case or F.I.R. It is obvious that the above direction relates to the post F.I.R. stage as it refers to the unbiased opinion of Government doctor applying Bolam’stest to the facts collected in the investigation. In this context it is to be borne in mind that normally the F.I.R. precedes investigation. Therefore the restriction intended in ‘Jacob Mathew’ can only be with respect to the submission of Final Report under Section 173 of the Code and not with respect to the Registration of F.I.R. Moreover, if registration of a case is ‘proceeding against the doctor’, then conducting preliminary inquiry will also be no less than ‘proceeding against the doctor’. Registration of F.I.R. cannot be equated with prosecution of a Doctor.

It appears that the 3 Judges Bench and the Constitution bench in ‘Lalitha Kumari’ have misread ‘Jacob Mathew’ and ‘Dr. Suresh Gupta’, as providing latitude to the Police Officer in the matter of recording of F.I.R./registering of case.

Preeti Gupta v. State of Jharkhand – Family Matter

In Preeti Gupta v. State of Jharkhand((2010) 7 SCC 667), the Supreme Court, speaking through Justice Dalveer Bandari, expressed its concern over misuse of Section 498A of the Indian Penal Code and observed that a serious relook of the entire provision is warranted by the legislation. A copy of the judgment was sent to the Law Commission also, which evoked the 243rd Report of the Law Commission. The Court in this case never considered the issue or held that in matrimonial or family disputes preliminary inquiry is permissible before the registration of a case.

Sevi v. State of T. N. and Another (1981 Supp. SCC 43)

 In this case Justice O.Chinnappa Reddy, observed as under: “If the Sub Inspector is not satisfied on the information received by him that a cognizable offence has been committed and wants to verify the information his duty is to make an entry in the general diary, proceed to the village and take a complaint at the village from someone who is in a position to give a report about the commission of a cognizable offence. Thereafter, the ordinary procedure is to send the report to the Police Station to be registered at the Police Station by the Officer-in-charge of the Police Station.”

The case related to cryptic telephonic information relating to rioting and has no significance in cases where the information recorded clearly discloses the commission of cognizable offence.

Rajinder Singh Katoch v. Chandigarh Administration(2007(4) KLT 877(SC))-- Civil Dispute 

The case related to the alleged wrongful restrain of a Cosharer by his Cosharer brother from entering into the joint property (house), allegedly owned by 7 persons. The Supreme Court rejected the plea for registering a case by the Police. The Court speaking through Justice S.B.Sinha, held as under:

“Although the officer-in-charge of a police station is legally bound to register a first information report in terms of S.154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not.”

“Criminal proceedings, in our opinion, cannot be taken recourse to for enforcing such a civil right. In any event, in a case of this nature where the authorities bound by law have already investigated into the matter and found that the allegations made by the appellant against respondent No. 4 were not correct, it would not be proper for us to issue any direction to the respondent Nos. 1 to 3 to lodge a first information report.”

Shashikant v. Central Bureau of Investigation & Ors. ((2007) 1 SCC 630)

Upon an anonymous complaint alleging corrupt practices and financial irregularities on the part of some officers, a preliminary inquiry was conducted by the Central Bureau of Investigation in which the statements of various officers were recorded. However, the investigating officer was of the opinion that it was not necessary to register a First Information Report but recommended for holding of departmental proceedings against the concerned officers. The Supreme Court relied on Vineet Narain v. Union of India, ((1998) 1 SCC 226), while justifying the preliminary inquiry and dismissing the Petition, againspeaking through Justice S.B.Sinha, the Court observed:

 In Vineet Narain(supra), it was held :

“The C.B.I. Manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the C.B.I.’s functioning….” The court further observed:

“C.B.I. Manual provides for a preliminary inquiry. A preliminary inquiry in terms of Para.9.1 of the C.B.I. Manual may be converted into a regular case as soon as sufficient material becomes available to show that prima faciethere has been commission of a cognizable offence.”   

 (Note- Sub-section(2) of Section 2 D.S.P.E. Act provides that “subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout any Union Territory in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein”. This provision cannot be taken as empowering the Government to make Rules/Manual so as to override the general provisions in the Code including S.154… In this context it would also be worth noting that even the challenge to the legal existence of the C.B.I., which was established by a mere Resolution of Ministry of Home Affairs, Government of India, without any reference to D.S.P.E. Act, was upheld by a well reasoned Judgment of the Gauhati High Court in Navendra Kumar v. Union of India & Anr.(2013 Cri.L.J. 5009). However the operation of the said judgment has been stayed by the Supreme Court to avert undesirable consequences). The Court further observed in ‘Shashikant’ as under:

 Although ordinarily in terms of S.154 of the Code, when a report is received relating to the cognizable offence, a First Information Report should be lodged, to carry out a preliminary inquiry even under the Code is not unknown.

….In In re Rangarujulu,Ramaswami,J. of the Madras High Court described the following three stages a policeman has to pass in a conspiracy case:

“...hears something of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up informants and is in the second stage of qui viveor lookout; and finally gathers sufficient information enabling him to bite upon something definite and that is the stage when first information is recorded and when investigation starts.”

Information Indicating the Necessity for an Inquiry but not Disclosing Offence

The following view In Thulia Kali v. State of Tamil Nadu((1972) 3 SCC 393), has beenendorsed by the Constitution Bench:

“It is well settled that a first information report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence.”

Anonymous or cryptic or vague information or even rumors though would not in itself constitute information within the meaning of S.154 of the Code may alert the Police Officer to keep vigil or inquire, which may lead to information within the scope of S.154. In a case of ‘man missing’ the plain information as such will not disclose the commission of a cognizable offence but certainly it indicates the necessity for an inquiry so the practice in vogue has been to make a General Diary entry and conduct inquiry and only when information disclosing offence is gathered F.I.R. would be registered (Though in Bachpan Bachao Andolan v. Union of India(2013 (7) SCALE 509), the Supreme Court directed that F.I.R. must be lodged in all ‘Child missing’ cases). When there is no specific first informantthe Station House Officer can suo motualso register a case (See Section 157 of the Code).

The Constitution Bench in ‘Lalitha Kumari’ has held as under:

“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.)”.

Inherent Ambiguities and Vagueness in the Constitution Bench Judgment

In the Judgment, up until Paragraph 105, the Court vigorously thwarted all the arguments put forth in favour of any sort of preliminary enquiry by the police when information discloses cognizable offence. The Court many a times in unreserved manner stated that the Provision in S.154 of the Code is mandatory. For instance the Court in unequivocal words said:

“For “cognizable offences”, a duty has been cast upon the police to register F.I.R. and to conduct investigation except as otherwise permitted specifically under S.157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of F.I.R.s, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality.”(Para. 43)

Again the Court said; “Therefore, reading Section 154 in any other form would not only be detrimental to the Scheme of the Code but also to the society as a whole. It is thus seen that this Court has repeatedly held in various decided cases that registration of F.I.R. is mandatory if the information given to the police under Section 154 of the Code discloses the commission of a cognizable offence.”(Para 96).

The Court also emphasized the fact that the word information appearing in S.154 is not qualified by the terms like ‘reasonable’ or ‘credible’. Hence the Bench held that, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. (See para 67 of the Judgment)

But in Paragraph 106, titled ‘Exceptions’, the Court again after reiterating that S.154 of the Code is mandatory, in the same breath states that, “yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.” In that regard the Court cited and quoted from JacobMathew v.State of Punjab (supra). The Court also stated: “In the context of offences relating to corruption, this Court in P.Sirajuddin v. State of Madras (supra), expressed the need for a preliminary inquiry before proceeding against public servants.”

The Court in the concluding part of the Judgment further, under the title ‘Directions’, holds abruptly without much deliberation, as under:

“(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 categories 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.The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” Here the Court has given it to the subjective satisfaction of the Station House Officer. The Court has also made the ‘preliminary inquiry’ time bound.

As per the doctrine of separation of powers enshrined in our Constitution, Law making is not generally the function of the Courts. After having interpreted the provision in S.154 of the Code as absolutely fair and reasonable on the touchstone of Art. 21 and mandatory, how the Court on its own could exempt certain categories of cases from the purview of such mandatory provision and also provide that: “The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry?” It could have been left to the wisdom of the legislature, to exempt certain categories of cases or not to do so. Obviously it was not a reading down exercise to bring the law in conformity with Art.21. When there is clear provision dealing with the matter even Art.142 of the Constitution cannot be resorted to rewrite the same. The Court cannot blow hot and cold at the same time. But, here the Court in the first instance constructed a dam, strengthened it with valid legal reasons and blocked the water from flowing away and instantly thereafter with the same hands carved open a hole on the dam to allow whole of the water to escape without assigning any legally sustainable reasons. It is like glowing both red and green lights simultaneously on a traffic signal post.

Another strange direction in the Judgment is as under:

“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.”

If taken literally, the Court has restricted the preliminary enquiry to the interpretation of the information so as to see whether, on the face of it, commission of a cognizable offence is disclosed. But the exemption of certain categories of cases from the mandate of Section 154 of the Code and the subsequent residuary provision “The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry” suggests that the ‘Preliminary inquiry’ referred therein is not merely an interpretational inquiry but a fact finding/fact verifying inquiry. Moreover, the said residuary provision virtually gives unqualified discretion to the police officer to register or not to register F.I.R. upon any type of information, which runs counter to the earlier affirmed mandatory nature of Section 154 of the Code and the categorical denial of any latitude to the Police Officer when the information discloses cognizable offence. Therefore, the Judgment in its practical application has become vulnerable to support divergent interpretations/views on any same fact scenario.

Magistrate/Special Court’s Power to Order Preliminary Inquiry; ‘Lalita Kumari’ Jurisprudence?

Recently, a Single Bench of the High Court of Kerala in Sanker Reddy v. Chief Secretary (2016 (4) KLT 538), upheld the order of ‘the Court of the Enquiry Commissioner and Special Judge (Vigilance)’, as per which, a direction for preliminary inquiry was issued upon allegation in the Complaint that the Petitioner, a top ranked Police Officer attempted to “hush up the issues” for helping the accused, the then Finance Minister, in a previously ordered investigation with respect to alleged large scale corruption. The complainant alleged that such attempts “are writ large from the contents of the Case Diary of that case”, therefore order for conducting the Preliminary inquiry was made after calling for and perusing the Case Diary of the said investigation. The High Court said:

“True that in ‘Lalita Kumari’, the Apex Court was dealing with complaints being filed regarding corruption cases directly before the police. At the same time, the aforesaid mandate contained in ‘Lalita Kumari’ clearly covers a situation of the present kind also. If the information contained in the complaint does not disclose a cognizable offence; but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not. Here, in this particular case, serious allegations have been raised against a Senior Superior Police Officer. In such case, the court below was very vigilant in not ordering an investigation under S.156(3) Cr.P.C. After perusing the Case Diary, the court below had ordered a preliminary inquiry as per the mandate in ‘Lalita Kumari’, in order to ascertain whether a cognizable offence is disclosed or not in the complaint.”

If the scope of the preliminary inquiry is only to ascertain whether a cognizable offence is disclosed or not in the complaint, then it would be better for the Judicially trained Special Judge/Magistrate to do that at his end rather than leaving it to the less equipped Police Officer. But on a whole reading of the Judgment it would appear that the scope of the ‘preliminary inquiry’ is beyond that. At any rate, in ‘Lalitha Kumari’ there are obvious ambiguities and lack of proper guidance as to the scope of the ‘Preliminary Inquiry’ by the Police.

Generally the courses available for a magistrate when a complaint is filed are as follows:

(a) When it does not contain allegation of facts constituting an offence/lacks cause of action, then, it is not a proper complaint and the court can reject the same as a case of institutional defect (see the definition of complaint in S.2(d) of the Code), (b) Can direct an investigation after registering a case by the Police under S.156(3) of the Code (c) Take

cognizance and proceed under Chapter XV of the Code.

Now the High Court of Kerala in ‘Sanker Reddy’ has approved one more option, which is of ordering ‘preliminary inquiry’ purportedly as per the mandate in ‘Lalita Kumari’.

Obviously, ‘Sirajuddin’ stands approved in ‘Lalitha Kumari’. But, in this regard it may be recalled that in Madathil Marakar Haji v.Vakkom B. Purushothaman &Ors.(2007 (4) KLT 659), another single bench had held that the Magistrate/Special Judge cannot direct such a preliminary inquiry upon a complaint. The Court observed:

“..the order passed by the Special Judge in a complaint received by him under S.190 of the Code to conduct ‘vigilance enquiry’ or ‘preliminary enquiry’ by VACB cannot be said to be in tune with the dictum laid down by the Supreme Court in Sirajuddin’scase. Every Criminal Court is bound to act in accordance with the provisions contained in the Code, while dealing with criminal cases, unless any Special Statute provides to the contrary.”

In ‘Madathil Marakar Haji’ the earlier contra view in Biju C. Valluvanandan v. State of Kerala, 2004 (3) KLT 296, was held to be ‘per incurium’ and in ‘Sanker Reddy’ the Court did not notice ‘Madathil Marakar Haji’. Now the conflict of views has to be resolved by a larger bench.

It is submitted that when it is found that S.154 of the Code is mandatory when the information discloses commission of cognizable offence and the law as laid down by the various decisions of the Supreme Court has ensured that the police cannot arbitrarily arrest and there should be independent reasonable justification for effecting arrest, the conduct of ‘preliminary inquiry’ instead of ‘regular investigation’ will not make much of a difference on the reputation/stigma/misuse aspects as often projected, even in cases with respect to public servants or doctors or with respect to any other category of cases.

Conclusion

Some of the Counsel before the Constitution Bench submitted that the court should choose a ‘middle path’ rejecting both the extreme propositions. But, it appears that, in the end, in the process of trying to cut open some sort of a nonexistent ‘middle path’ the Court got itself landed in the dark and obscure ‘no-man’s-land’ far from the maze. In the result, the Judgment has rendered itself legally inoperative/purposeless by reasons of its inherent ambiguities and vagueness as explained above. Now it has become the need of justice that the Supreme Court should through another Constitution Bench or otherwise put some light on the issue by coming up with the required precision and clarity for settling the correct law on the subject. In other words, the confusion caused by ‘Lalita Kumari’ should be put to rest at the earliest opportunity.

Tail Piece:To err (in Judgment) is humane; my critical views on the Constitutional Bench Judgment i.e. ‘my judgment of the judgment’ may be sound or may be erroneous, but those are my bona fideviews. In India the Supreme Court is regarded as ‘the Sentinel of thequi vive’. A citizen’s constitutional rights including freedom of expression have always been zealously guarded by this great institution. I humbly salute the Hon’ble Supreme Court for what it has generally been for over 60 years.

Highlights of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 & Security Interest (Enforcement) Rules, 2002 & The Debt Recovery Tribunal (Procedure) Rules, 1993

(By Dr.P.Syamjith, Ph.D. in Law from Dr. Ambedkar Law University, Chennai)

The Central Government introduced the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016 in Lok Sabha as Bill No.144 of 2016 to primarily amend the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act (DRT Act) and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act). Later on, the bill was passed by both houses of Parliament and got the assent of the President of India on 12th August, 2016. In terms of S.1(2), the Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. The Central Government vide notification appointed 1st September, 2016 as the date on which some of the provisions of the Amendment Act shall come into force. Some more provisions are notified on 4th November, 2016. Further, the Central Government has also made rules to amend the Security Interest (Enforcement) Rules, 2002 & Debt Recovery Tribunal (Procedure) Rules, 1993 vide notification dated 3rd November, 2016.

In the long history of recovery laws, both the Acts, DRT Act and the SARFAESI Act have traveled through various stages in its evolution. During such long journey, these Acts have been subjected to judicial scrutinies at various judicial forums and faced variety of legal objections, which ultimately lead to consequential amendments for perfecting the provisions of these Acts. Though the objects of both the Acts are to expedite the recovery of dues to banks, respective Acts are operating at different platform. In its long journey, both the recovery laws proved to be a beneficial legislation in facilitating the recovery of large dues to the Banks albeit with attentive delay and unavoidable litigation.

While enforcing the provisions of the SARFAESI Act, numerous legal issues and challenges have cropped up which demanded resolution through amendment in the provisions of the Acts. On analysis of the provisions of the Amendments Act, it appears that it has brought out some revolutionary changes in both the Acts, which have got far reaching consequences.

Further, the Central Government has also made rules to amend the Security Interest (Enforcement) Rules, 2002 vide notification dated 3rd November, 2016. The important highlights of the amendments brought in the Recovery of Debts Due to Banks and Financial Institutions Act (DRT Act), the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), the Security Interest (Enforcement) Rules, 2002 and the Debt Recovery Tribunal (Procedure) Rules, 1993 are as follows:-

Amendments in the Security Interest (Enforcement) Rules, 2002

AMENDMENTS  IN  DRT ACT -- EFFECTIVE  DATES

Victim’s Participation in Criminal Justice Process -- Need for Change

(By Devi A.R., Advocate, Assistant Legal Officer in Law Department, Government Secretariat, Tvm. (On deputation as Assistant in Kerala Human Rights Commission)

The effective and fair administration of Criminal Justice System is the corner stone of a free welfare society and it is the vital component of the public confidence in the institutions of Government. In a free society, aim of every Criminal Justice System should be to protect the rights of individuals against the intentional invasion of criminals who violate the basic norms of the society.

 The machinery which administers criminal justice system must be able to punish the offender in heinous crimes so as to boost confidence of the public in the justice administration process and to prevent or deter others from committing the same offence. In our State sponsored criminal justice administration, how far this aim is protected remains as a question. Now we often hear that many offenders are set free or awarded with lesser sentence as the prosecution has blundered or has not placed the case before the Trial Judge in a systematic manner.

In due process model of justice administration the interests of the offenders are protected by many constitutional guarantees and procedural safeguards like presumption of innocence, proof beyond reasonable doubt etc. The adversarial system of trial, which we follow, gives more importance to procedural safeguards to the accused. The accused may be tried only once for the same offence and shall not be forced to testify against himself. He has the right to be notified of the charges against him and to have an impartial trial. If he cannot afford a counsel the State will provide him with a lawyer. Moreover the Supreme Court of India has given broad interpretation to Article 21 of the Constitution in favour of an arrested person in a criminal offence.

 Procedural fairness is an underlying principle of rule of law and in a modern State it is acceptable that individual rights are being more focussed but criminal justice administration process concerns meagerly about the person who suffered actual loss. Victims are entirely overlooked in misplaced sympathy for criminals. The factual reality is that merely relying on procedural fairness will adversely affect the ruling of truth.

 In a criminal case the victim gets justice when the justice administration machinery is able to prove the case before the court of law. The participation of the victim in investigation and trial will accelerate finding out of truth. And if he is able to make his views before the court of law pronouncing judgment, it will execute the principle of natural justice in its precise sense.

In India criminal justice process both in pretrial and trial stage, the victim’s participation is not ensured either in the Criminal Procedure Code or any other national legislation. Starting from the registration of first information report, the participation of the victim is neglected, of course the victim has got the right to register the first information report (F.I.R.) but it depends upon the discretion of the police as to register it or not. In law, against non registry of F.I.R., the victim can approach the higher authority but how far the machinery is able to guarantee is a question of fact. During the investigation stage the victim is not at all informed about the progress of the case. To conduct investigation of a case is the statutory rights of the police1 and investigating officer is considered to be the master of the investigation. If the police is not conducting investigation properly or the victim is not satisfied with the manner of investigation, the victim can only approach the court. But at that stage normally, a Magistrate cannot interfere in the matter before the completion of the investigation and police report under Section 173 Cr.P.C. is filed2.What the victim can do is to wait for completion of police investigation and then approach the Court for further investigation or reinvestigation.

Coming to the appointment of a lawyer, the accused is vested with the right to appoint the lawyer of his own choice, but the victim has no such right to appoint the lawyer of his own choice, of course a private lawyer can be appointed under S.301(2), Cr.P.C. but he has no independent role to play. He can act only under the direction of the public prosecutor3. He cannot appear before the court without the permission of the court. He cannot examine or cross examine the witness; this cross examination of witness is considered as the main instrument of the lawyer to elucidate the truth .The private lawyer can only submit the written arguments with the permission of the court.

Before rendering the judgment the accused will be given an opportunity to be heard by the court4 but the victim is not even given an opportunity to make his view and on a non satisfactory sentence of the Court, right to appeal is very limited to victim. The victim has right to appeal only against order of acquittal and not against the inadequacy of sentence that too only in case of private complaint. Though plea-bargaining is adopted in our Criminal Procedure Code it is not an effective provision to deal with the right of participation of victim in the process, as it is limited to certain cases only.

In certain cases the discretion of the Court decides the fate and in case of anticipatory bail5 The court can grant the anticipatory bail on its discretion, if the public prosecutor does not object the granting of bail in such cases as the court may not be aware of the facts and circumstances of the case. Judicial discretion is being exercised in case of award of compensation as it is only an additional remedy available to victim on to certain cases which come under the purview of Section 357 of Cr.P.C.

There is an argument that the participation of victim in Indian legal system is limited because Indian legal system follows accusatorial or adversarial system of trial. It is true that we follow the adversarial system of trial, where the trial is accused oriented, but it doesn’t mean that the victim's right to participation cannot be recognized in adversarial model of trial. Many other nations like U.K., U.S.A., Newzealand which follow the adversarial system of trial, are able to recognize the rights of the victims through their national legislations and guideline. Victim impact statements are taken and in that the victim can make his statement about the physical, mental and emotional injuries as a result of the crime.

At the international level also efforts are made to protect the rights of the victims. UN Convention on Justice and Support for Victims of Crime and Abuse of Power6 details about the right of the victim against the abuse of power and also requires the state parties to take adequate steps to protect the rights of the victims and also to take the adequate steps to prevent further victimization of the victim to give adequate participation in the criminal justice process and also requires their rehabilitation and restitution. Other regional organizations like European Union recognize victim’s participation through various guidelines in dealing with victims of crime.

The aim of criminal justice administration is not only to reform and rehabilitate the accused but also to protect the victim and thereby satisfy the vengeance of the society towards the offender. At various national and international levels the rights of the victims are protected through various domestic laws and international conventions. But our criminal justice system shows no progress in this regard still and in Indian criminal justice administration the victim’s role is limited to that of a witness. So, now in the interest of justice, it became necessary to adopt those provisions in our legal system to ensure victims right to participation in criminal justice process and thereby protect their natural justice.

SUGGESTIONS

•    After the registration of first information report the copy of the report shall be given to the victim and the officer who is recording the statement shall duly sign on it.

•    When the investigation of the case begins, the victims shall be informed about it in writing and it shall contain the name of the officer who conducts the investigation and also the persons who assist him in such investigation.

•    If there is any change in the officer conducting investigation, that shall be informed to the victim in writing.

•    The progress of the case shall be informed to the victim in writing. And if the victim want to make any suggestions in the mode of investigation, allow him to make his views before the officer conducting investigation.

•    A special wing of the police who are specially trained in the investigation, of cases should be created7 to deal with all complicated cases other than petty offences and offences triable summarily.

•    A monitoring committee consisting of members from the judiciary and higher officials of the police should be allowed to monitor the police officer conducting investigation and his dealings with the victim. And the victim should be allowed to rate investigating officer conducting investigation and it shall be considered by the committee and give directions to the officer concerned.

•    Victim shall be heard before granting anticipatory bail to the accused.

•    Victim should be allowed to have proper representation through a private lawyer. Amendments should be made to Section 301(2) so that the private lawyer appointed should have independent status, and should be allowed to appear before the court in appropriate cases.

•    Victim should be allowed to present evidence before the court and also to put question to the accused.

•    Allow private prosecution in cases where the prosecutor wants to withdraw without reasonable ground.

•    Victim or his legal representative shall be allowed to be implied as party to the prosecution.

•    Victim shall be allowed to file civil suit for material loses occurred to the victim as a result of the conduct of the accused.

•    If the victim dies before the completion of trial, the legal representatives of the victim shall be allowed to continue with the civil suit for compensation.

•    Victim or his legal representative shall be provided with the right of appeal in case of acquittal and inadequacy of sentence.

•    Victim’s opinion should be considered before granting parole.

•    State shall appoint a Victims of Crime Co-ordinator and this Victims of Crime Co-ordinator shall assist the victim in getting legal and health services.8

Foot Note:

1.     S.N.Basak v.Union of India (AIR 1963 S.C.447).

2.     Zulfiqar Beg alias Babyy v State of U.P. (1992 Cr.L.J 2067).

3.     Code of Criminal Procedure (1973,S.301(2)).

4.     Code of Criminal Procedure (1973, Ss.248(2) and 235).

5.     Code of Criminal Procedure,1973,S.439 reads: “Special powers of High Court or Court of Sessions regarding bail: (1) A High Court or Court of Sessions may direct,-(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.”

6.     UN Convention on Justice and Support for Victims of Crime and Abuse of Power, 1985.

7.     Malimath committee recommendation on criminal justice administration.

8.     In March 2001 South Australia appointed a Victims of Crime Co-ordinator. The Victims of Crime Co-ordinator will assist government agencies and non-government organizations involved in the criminal justice system, health, education and welfare services to improve the delivery and co-ordination of victims’ services. relied on www.voc.sa.gov.au/Publications/News/Achievements_in_SA_Victim_Policy (visited on 9.4.09).

Scope of Amending the Execution Petition

(By V.S. Girija, Advocate, Kuzhithurai, Kanyakumari District, Tamil Nadu )

An urge to pen a few words on amending the Execution petition emerged while watching arguments in the Court Hall over an application seeking leave of the court to amend the execution petition which was filed under Order VI Rule 17 and Section 151 of the Civil Procedure Code.

The Execution petition was one for attachment of the movable property scheduled. The suit was of the year 1996 and the Execution petition was filed in 2002. The amendment petition was filed in 2014. The most important averment in the affidavit attached to the amendment petition was that, ‘if the execution petition is not pressed and a fresh execution petition is filed for the purpose of introducing a property which did not initially find a place in the property sought to be attached, the latter will be barred by limitation’. Hence, it was clear that the amendment petition was meant to get over the bar of limitation.

Scope of Order VI Rule 17 in the Execution Stage

A reading of Order VI Rule 17 will make it clear that the said provision is applicable to amendment of pleadings. According to Order VI Rule 1 ‘Pleading’ shall mean Plaint or Written Statement. In (2000) 3 Andh 431 (431), it is seen that Order VI Rule 17 is meant only for amending the pleading as given in Order VI Rule 1 land it cannot apply to the Execution Petition. Therefore, a petition to amend the E.P. filed under Order VI Rule 17 is prima facie defective.

However, when an application is filed in the execution stage for amending the Execution application under O.VI R.17, when the object of the petition is to correct an error manifest, but, without changing the nature and character of the Execution Proceedings, courts have inherent power under S.151 & S.153 C.P.C to act in interest of justice. The proposition of law in this aspect is recently found in the Madras High Court decision reported as 2016(1) MWN (Civil) 141.

Execution of Decrees and Orders

Order 21, with the most number of Rules, deals with Execution of Decrees and Orders.

Order 21 Rule 17 contemplates the ‘Procedure on receiving application for execution of decree’. Order 21 Rule 17 provides:

On receiving an application for the execution of a decree as provided by Rule 11 sub-rule (2) (Order 21 Rule 11(2) prescribes the requirements for a written execution application such as number of the suit, names of the parties, date of decree etc...) the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it.

1A. If the defect is not so remedied, the Court shall reject the application:

Provided that where, in the opinion of the Court, there is some inaccuracy as to the amount referred to in clauses (g) and (h) of sub-rule (2) of Rule 11, the Court shall instead of rejecting the application, decide provisionally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for the amount so provisionally decided.

2. Where an application is amended under the provisions of sub-rule (1) it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

3. Every amendment made under this rule shall be signed or initialled by the Judge.

4. When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application.

Provided that, in the case of a decree for the payment of money, the value of the property attached shall as nearly as may be, correspond with the amount due under the decree.

Scope of Order 21 Rule 17

Thus, Order 21 Rule 17(1) makes it precise that an application for amending the Execution Petition can be filed if such petition suffers from defects for having not complied with the requirements contemplated under Rules 11 to 14 of Order 21. Eventually, the Rule does not apply where the defect in the application is one which has no reference to Rules 11 to 14. Likewise, if the subsequent application is not one for amendment of the original application but is really an independent application for execution seeking a relief not included in the original application, sub-rule (2) cannot apply and the subsequent application cannot be said to be presented on the date of the original application.

As seen thus, the scope of amending an execution petition lies within the purview of what is provided in Order 21 Rule 17. To make it clear, an execution petition can be amended only as provided in Order 21 Rule 17, and hence Order VI Rule 17 is not applicable for amending an execution petition so as to alter the nature and character of the relief granted in favour of the plaintiff and thereby cause prejudice to the defendant/judgment debtor. Therefore the scope of amending an execution petition is much more limited than amendment of pleadings.

Question of Limitation

In this context, it has to be looked into whether an application for substituting entirely new property for that mentioned in the execution petition must be treated as a fresh application or not. As reported in AIR 1942 All. 442(443), ‘an application for substituting entirely new property for that mentioned in the execution application must be treated as a fresh application’. Therefore an application for amending the execution petition meant to substitute or introduce or add an entirely new property has to be considered as a fresh application. A fresh application can be entertained only if the same is filed within the period of limitation. Therefore, by virtue of Art.136 of the Limitation Act, an application of the kind mentioned above gets barred by limitation after twelve years from the date of decree. The Kerala High Court by its judgment reported in2010 (4) KLT 127 has elaborately discussed whether an item of property can be proceeded against in execution of a decree for recovery of money after the period of limitation prescribed under Art.136 of the Act though the execution petition was filed within the period of limitation. While holding its answer in the negative, the Honourable High Court has discussed the rigour of Section 48 of the C.P.C 1908, (which was repealed by Section 28 of the Act), when read with Art.136 of the Limitation Act. A comparison of the said provisions and the distinction between the expressions ‘fresh application’ (occurring in Section 48 of the Code) and ‘subsequent application’ (in Section 230 of the old Code) is analysed.

It has to be borne in mind that when a party to the proceedings fails to exercise his right provided to him by law, a valuable right accrues in favour of the opponent. It may more or less be by way of a bar of limitation. This right which accrues to the opponent is nevertheless lesser than the right which was available to the former before it became barred. Therefore such a right cannot be taken away to the detriment of the party in whose favour it has bloomed.