Delhi High Court
Court On Its Own Motion vs State on 28 November, 2024
Author: Prathiba M. Singh
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19th September,2024
Pronounced on: 28th November, 2024
+ CRL.REF. 3/2021
COURT ON ITS OWN MOTION .....Petitioner
Through: Mr. Vikas Padora (Amicus Curiae)
with Mr. Dipanshu Chugh, Adv.
versus
STATE .....Respondent
Through: Mr. Anupam Sharma, SPP-CBI with
Mr. Prakarsh Airan, Ms. Harpreet
Kalsi, Mr. Abhishek Batra, Mr.
Ripudaman Sharma, Mr. Vashisht Rao
& Mr. Syamantak Modgill, Advs.
AND
+ W.P.(CRL) 388/2022 & CRL.M.A. 3314/2022
CENTRAL BUREAU OF INVESTIGATION .....Petitioner
Through: Mr. Vikas Padora (Amicus Curiae)
with Mr. Dipanshu Chugh, Adv.
versus
STATE .....Respondent
Through: Mr. Anupam Sharma, SPP-CBI with
Mr. Prakarsh Airan, Ms. Harpreet
Kalsi, Mr. Abhishek Batra, Mr.
Ripudaman Sharma, Mr. Vashisht Rao
& Mr. Syamantak Modgill, Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
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Signing Date:28.11.2024
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2. The present connected cases arise from the same order of dismissal
and/or letter of reference dated 4th October, 2021. One is a criminal reference
made by the ld. Special Judge, C.B.I Court-20 (Prevention of Corruption Act),
Rouse Avenue District Courts, New Delhi and another is a criminal writ
petition preferred by the Central Bureau of Investigation (‘CBI’) against the
said order of dismissal.
I. BACKGROUND
3. The said cases arise from a series of allegations regarding corruption
that occurred during the execution of certain purchase orders placed for the
supply of spare parts by various Public Sector Undertakings (hereinafter
‘PSUs’) including the Hindustan Aeronautics Ltd. (hereinafter ‘HAL’), Oil &
Natural Gas Corporation (hereinafter ‘ONGC’), Gas Authority of India
(hereinafter ‘GAIL’) to M/s Rolls Royce Plc. (London). The allegations made
in the said PE related to certain purchase orders placed to Rolls Royce,
London. It is claimed that a source informer of CBI had informed that during
the period of 2007-2011, undisclosed commissions amounting to
approximately 10-11.3% of the contract value were paid by Rolls Royce Plc.
(hereinafter ‘Rolls Royce’) to M/s Aashmore Pvt. Ltd. (Singapore) and M/s
Infinity for appointing the latter as a commercial advisor to Rolls Royce in
contracts with different PSUs. The informer alleged that these amounts paid
as commission to M/s Aashmore Pvt. Ltd. were kickbacks to unknown
officials of HAL, ONGC and GAIL involved in the procurement process who
illegally aided Rolls Royce in the process of procuring the contract. Based on
the source information, the CBI had registered Preliminary Enquiry-PE
AC-1 2014 A0005 on 21st March, 2014.
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Signing Date:28.11.2024
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4. Upon initiation of enquiry, as per the PE it was revealed that M/s Rolls
Royce Ltd. was prohibited from engaging the services of any
intermediary/third party in the supply of materials/spare parts as per the
conditions enumerated in the purchase orders and the integrity pact. Thus, the
appointment of a commercial advisor was stated to be violative of the terms
& conditions of the purchase orders and integrity pact in respect of the supply
transactions. Further, it was revealed that such appointments and the
payments of commission made with respect to purchase orders of GAIL and
ONGC were wilfully concealed by Rolls Royce at the time of the subsequent
bid/tender with HAL. Lastly the enquiry officer is stated to have made several
requests to M/s Aashmore Pvt. Ltd. and its promoters: Mr. Ashok Patni and
Mr. Wolfram Krockow, for providing details of the accounts in which
commissions were received from Rolls Royce, however, the said company
and individuals did not extend cooperation to the enquiry. Based on the
above-mentioned events and information, the enquiry officer prima facie
concluded that M/s Aashmore Pvt. Ltd was hiding the corrupt public servants
of HAL, ONGC and GAIL involved in the process of procurement and illegal
gratification. Thus, the enquiry officer-Additional SP, CBI filed a complaint,
based on which the CBI then registered the FIR/RC. The said FIR bearing
no. FIR/RC No. AC-1 2019 A0004 is the subject matter of these cases.
5. After the registration of the FIR, the CBI moved an application before
the Special Judge, CBI claiming that the payment of commission to M/s
Aashmore Pvt. Ltd. by Rolls Royce was illegal and the same was made into
three bank accounts in Singapore vis-a-vis HSBC Pvt. Bank, HSBC and
United Overseas Bank. The case of the CBI was that, India and Singapore
are members of the International Criminal Police Organization
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(‘INTERPOL’) which enables mutual assistance in criminal matters between
members countries. The CBI wanted to collect certain documents from
Singapore and also wanted to investigate certain persons.
6. The details of the documents which the CBI wanted to collect from
Singapore were the following :
A. Bank Documents in respect of Account No. (i) 8205-072850-0001
with HSBC Pvt Bank at 21, Collyer Quay, HSBC Building,
Singapore of M/s Aashmore Pvt Ltd.
B. Bank Documents in respect of Account No. 260-655741-178 with
Hong Kong & Shanghai Banking Corporation of M/s Aashmore
Pvt. Ltd.
C. Bank Documents in respect of Account No. 101-348-103-8 with
United Overseas Bank Ltd., 80, Raffles Place, UOB Plaza,
Singapore of M/s Aashmore Pvt. Ltd.
7. In addition, the CBI wanted to investigate the bank officials of the said
banks. The CBI moved an application for issuance of a letter rogatory under
Section 166A of Code of Criminal Procedure (Hereinafter ‘Cr.P.C’). The
prayer in the said application is as under:
“It is, therefore, prayed that this Hon’ble Court may
kindly be pleased to issue the letter rogatory Letter of
Request u/s 166(A) of Code of Criminal Procedure.
1973 in favour of the Competent Authority (Govt. of
Republic of Singapore) for obtaining original
documents as given in Annexure – 6 and recording
statements of witnesses/persons as me mentioned in
Annexure – 7 for the purpose of completing
investigations in the aforesaid criminal case.”
8. Upon hearing this application, the Special Judge, CBI was of the
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Signing Date:28.11.2024
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opinion that the FIR does not show commission of any cognizable offense
particularly under the Prevention of Corruption Act, 1988 (Hereinafter ‘PC
Act’). In his opinion, the source informer had only expressed doubts about the
payment of any kickbacks. Therefore, non-cooperation by M/s Aashmore
Pvt. Ltd. cannot be presumed to constitute hiding of corrupt public officials.
The Special Court then came to the conclusion that there was no justifiable
reason for registration of the present FIR, and since the Special Court could
not quash the FIR the following questions were referred as questions of law
for decision by this Court. The observations of the Special Court are set out
below:
“26. Under Section 154 CrPC Officer in charge of
police station is under obligation to record (in the book
kept by such officer in such form as the State
Government may prescribe) substance of information
relating to commission of cognizable offense. The word
to be emphasized here is “commission” of cognizable
offense which word means information oral or in
writing must relate to “commission” of offense
(cognizable). Requirement of Section 154 CrPC is
definite information or confirm information about the
commission of offense from the point of view of
informant at least because when investigation is
undertaken investigating agency has also to collect
evidence confirming commission of offense and other
evidences are directed towards connecting the suspect
with the crime as perpetrator of crime. If there is no
evidence of commission of crime there is no way to hold
anyone guilty of that crime.
27. Hence, neither the source informer gave definite
information about the “commission” of any offense not
to speak of offenses under Prevention of Act, 1988 nor
could Preliminary Enquiry confirm about the
“commission” of offense under the Prevention ofCRL.REF. 3/2021 & W.P.(CRL) 388/2022 Page 5 of 45
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Signing Date:28.11.2024
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Corruption Act, 1988 or under the penal law and
therefore, there appears no justifiable reason for the
registration of the present FIR/RC at least for an offense
under the P. C. Act, therefore, certain legal questions
arise in the present circumstance which need
adjudication by Hon’ble High Court in reference
because if no call is taken on questioned raised herein
vis-a-vis the present FIR/RC, then the continued
investigation may result in wastage not only of services
of already limited manpower of the investigating agency
but also of public money. This Court is making separate
reference to the Hon’ble High Court for answering
following legal queries:-
a. Whether Officer in charge of a Police Station is at
liberty to register FIR and enter investigation even
if information does not disclose
commission/happening of offense (cognizable)?
b. Whether the Metropolitan Magistrate or the
Special Court, as the case may be, cannot bring to
notice of Hon’ble High Court for appropriate
order of quashing regarding the FIR registered on
the basis of information not disclosing commission
(happening) of offense (cognizable)? In order word
whether Magistrate or the Special Court has to
remain silent spectator till filling of report under
Section 173(2) CrPC and keep on assisting the
Investigating Agency by issuance of search
warrant, letter rogatory etc., as and when asked for
by the investigating agency during investigation?
c. Does not power of supervision over investigation,
of the Magistrate or the Special Court include
questioning the registration of FIR on facts not
disclosing commission of offense (cognizable)? If
yes, what course of action should Magistrate or the
Special Court follow if it holds the view that the
facts in the FIR does not disclose
happening/commission of any offense?
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Signing Date:28.11.2024
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d. In the event of doubt (reflected from the informant’s
points of view) about the commission of offense
(cognizable), will it not be appropriate for CBI to
seek permission of Hon’ble High Court or Hon’ble
Supreme Court to register FIR/RC for
investigation of doubtful commission of offense
(cognizable)?
e. Whether the power of reference under Section
395(2) can be exercised by the Court of Session or
Metropolitan Magistrate only during the hearing
of the case i.e., only after chargesheet has been
filed and accused summoned/arrested and not
during the investigation, if certain question of law
arises?”
9. After making the reference, vide the same order dated 4th October,
2021, the Special Court dismissed the petition seeking issuance of letter
rogatory:
“28. In view of the above discussion and reference being
made to Hon’bIe High Court, prayer made in the
application for issuance of letter rogatory is hereby
declined with liberty to CBl to move the application
afresh if Hon’ble High Court decides the reference in
favour of continuation of investigation or does not find
any irregularity/illegality in the registration of the
present FIR/RC and in continued investigation.”
10. The above order has been challenged by the CBI in W.P. (Crl.)
388/2022. As the subject matter of both the cases is the same, the said cases
were tagged together.
11. This Court is, therefore, concerned with the questions raised in the
reference by the Special Court as also the petition filed by the CBI. In the
reference matter i.e., Crl. Ref. 3/2021, this Court had appointed Mr. Vikas
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Signing Date:28.11.2024
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Padora as the Amicus Curiae. Submissions have been heard on behalf of the
CBI and the Amicus.
II. MAINTAINABILTY OF REFERENCE
12. Question (e), among the referred questions, relates to the
maintainability of the reference itself. Therefore, the first and foremost aspect
to be considered is whether the present reference itself would be
maintainable? Question (e) reads as under:-
“e. Whether the power of reference under Section
395(2) can be exercised by the Court of Session or
Metropolitan Magistrate only during the hearing of
the case i.e., only after chargesheet has been filed and
accused summoned/arrested and not during the
investigation, if certain question of law arises?”
13. The question raised above is considered in two parts:
A. Whether a reference can be made at the during investigation/
before filing of the chargesheet?
14. The above said question essentially relates to the period within
which a reference can be made under Section 395(2) of the CrPC. The said
section reads as under:
“395. Reference to High Court.–(1) Where any
Court is satisfied that a case pending before it involves
a question as to the validity of any Act, Ordinance or
Regulation or of any provision contained in an Act,
Ordinance or Regulation, the determination of which is
necessary for the disposal of the case, and is of opinion
that such Act, Ordinance, Regulation or provision is
invalid or inoperative, but has not been so declared by
the High Court to which that Court is Subordinate or by
the Supreme Court, the Court shall state a case setting
out its opinion and the reasons therefor, and refer the
same for the decision of the High Court.
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Explanation.–In this section, “Regulation” means any
Regulation as defined in the General Clauses Act, 1897
(10 of 1897), or in the General Clauses Act of a State.
(2) A Court of Session or a Metropolitan Magistrate
may, if it or he thinks fit in any case pending before it
or him to which the provisions of sub-section (1) do not
apply, refer for the decision of the High Court any
question of law arising in the hearing of such case.
(3) Any Court making a reference to the High Court
under sub-section (1) or sub-section (2) may, pending
the decision of the High Court thereon, either commit
the accused to jail or release him on bail to appear when
called upon.”
15. The reading of the section shows that a reference can be made if the
case is pending before the concerned Sessions Judge or a Magistrate. The term
‘case’ is not defined in Cr.P.C. The stand of the CBI is that the scope of the
phrase ‘case pending’ shall be limited the period of trial period i.e., period
between which the cognizance is taken and the judgement is delivered. To
this extent, CBI had relied on certain cases which interpret similar/associated
phrases such as ‘Proceedings before a Criminal Court’ in Section 10(3) of
the Passport Act, 1967 and ‘Institution of a case’ with respect an amendment
to the schedule I of Cr.P.C. On the said basis, the learned Counsel on behalf
of CBI submitted that unless and until there is a case pending (trial) before
the Court of Session or a Metropolitan Magistrate, a reference cannot be made
to the High Court and that this reference, arising from an application before
the trial, is not maintainable as the case currently is not pending before the
Special Court.
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16. On the contrary, the learned Amicus has submitted various decisions
where the reference has been entertained at stages before the commencement
and after the culmination of the Trial. In Re an Accused v. State of Kerala1,
where a reference to the High Court was made from an appeal before the
Sessions Judge, Kozhikode; the division bench of Kerala High Court
interpreting the phrase ‘case pending before it’ held that there is nothing in
Section 395 of Cr.P.C restricting the power to refer only to the original
jurisdiction. It held that a reference can be made by a Sessions Court even
from its appellate, revisional jurisdiction. The observations in the said
decision are set out below:
“7. In Sulaiman a Sessions Judge made a reference to
the Lower Burma Chief Court in the view that the
construction of S. 57, Excise Act which was involved in
the appeal pending before him was an important
question of law on which there should be an
authoritative ruling. In refusing the reference the Chief
Court held:
“When an Appellate Court does not dismiss an
appeal summarily, it is bound by the provisions of
S. 423 of the Code of Criminal Procedure which
define its powers–these powers do not authorize
the Court to refer to the High Court for decision a
question of law arising in the appeal. Nor does S.
438 confer any such authority; that section permits
the Sessions Judge to report for orders the result of
his examination of any proceeding before an
inferior Criminal Court, but does not apply to
appellate proceedings pending before the Sessions
Judge himself. It is clearly the intention of the law1
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that all questions arising in a criminal appeal
should be determined by the Appellate Court itself.
Since the question referred by the Sessions Judge
is not properly before the Court no decision can be
given on it. The learned Judge will have to decide
it according to his own judgment. If either party
should be aggrieved at the Sessions Court’s orders
in appeal, it will be open to that party to move this
Court in revision if he thinks fit.”
8. In substance the reasoning of the court was that the
Sessions Judge had no power to refer the question of
law involved in the appeal pending before him as no
such power has been conferred on him by the
provisions which deal with appeals and that he was
bound to dispose of the appeal of course with the
question of law. With respect we find it unable to agree.
In the context the power to make a reference is
governed by S. 395 and in this case by sub-section (2)
and the power must have its full play unless it is
restricted by some other provision. Sub-section (2) is
general in the sense that it is not limited to cases where
the Sessions Court is acting in its original capacity
excluding its appellate or revisional capacities. The
court is bound to dispose of every work, original,
appellate or revisional according to the prescribed
procedure and subject to the prescribed powers. The
reasoning in Sulaiman’s case, if valid, must apply to
the original or revisional capacities also; there is
nothing compelling in it to restrict the decision to
appeals alone. It is the Sessions Court that is given the
power to make the reference; it does not cease to be the
Court of Session when it hears the appeal; indeed the
appropriate appellate court for the cases specified in
the “Chapter on Appeals”–Chapter XXIX–is the
Court of Session. We could find no special reason to
think that the Sessions Court in its appellate capacity
is outside the provisions of sub-section (2); it is still a
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Court of Session and therefore competent to make a
reference. The expression “hearing” and “case” in the
sub-section are also general in scope; far from
supporting the opinion in Suiaiman they go against it.
A Court of Session is therefore competent, in its
original or appellate jurisdiction, to make a reference
under sub-section (2) provided of course the prescribed
conditions exist.”
17. Similarly, in Mahesh Chand v. State of Rajasthan2, and in Ajaz
Ahmad Dobi & Ors v. State3, both of which are discussed in detail in the next
section, the High Court had entertained references made by the learned Trial
Court during investigation. Therefore, the High Courts in the above-
mentioned cases have dealt with references under Section 395 made either
before the charge sheet was filed or after the judgment was pronounced i.e.,
beyond the period of trial.
18. Further, the inclusion of a broad term like ‘Case’ in place of a specific
term like ‘Trial’ appears to reflect the legislative intent to empower Judges to
refer questions of law at any stage of the criminal process, in order to facilitate
the delivery of justice in a comprehensive manner. Thus, it is clear that a
reference can be made even before the charge sheet is filed or even during an
investigation. Accordingly, the Question (e) is answered.
19. However, it is important to note that the Special Court has adopted a
unique procedure in this case while considering an application for issuance of
letter rogatory under Section 166A. The Court has dismissed the application
for issuance of letter rogatory on the grounds of lack of merits in the FIR
while simultaneously, referring five questions for the decision by the High
2
MANU/RH/0019/1986
3
MANU/JK/0246/2020
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Court. Therefore, the next aspect to be considered is whether the present
reference itself would be maintainable in the absence of the root case (i.e., the
application seeking letter rogatory u/s under Section 166A from which the
reference was made.
B. Is a reference maintainable if the case from which the reference
arises is dismissed ?
20. In Mahesh Chand v. State of Rajasthan4, a reference under Section
395 of Cr.P.C was made from a set of bail applications of the accused at the
stage of investigation. But at the time of reference, the bail application from
which the question was referred for adjudication had already been dismissed.
In such a circumstance, the Full Bench of the Rajasthan High Court observed
that in the absence of any case to be resolved upon the answering of the
referred questions, the said reference is merely academic in nature and the
Court declined to decide the questions. The observations in the said decision
are set out below:
“8. Before going into the questions raised by Kasliwal
J. we may straightway dispose of the other three
references, for we find that they do not present any
difficulty against such disposal. Let us first take up
Criminal Reference No. 4 of 1983 which was registered
as such in this Court on an order of reference, dated,
Nov. 30, 1983, made by the learned Sessions Judge
Jodhpur. As already stated, before making the said
reference, the learned Sessions Judge had already
dismissed the application under Section 439, Cr. P.C.
on Nov. 16, 1983. In other words, the case (i.e. the bail
application), involving the question or questions of law
raised by the learned Sessions Judge in his order of
reference for decision by the High Court, was no longer4
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pending before him on the date when he made this
reference. A plain reading of Section 395, Cr. P.C.
would at once show that no reference to the High Court
is maintainable under that section unless the question
referred is necessary to be decided for the disposal of
the pending case. Sub-section (2) of Section 395, Cr.
P.C., which is material for our present purpose, reads :
A Court of Session or a Metropolitan Magistrate
may, if it or he thinks fit in any case pending
before it or him to which the provisions of Sub-
section (1) do not apply, refer for the decision of
the High Court any question of law arising in the
hearing of such case.
It will be seen that in order that a Sessions Judge may
make a valid reference under Section 395(2), Cr. P.C. it
must be shown that the question of law referred for
decision of the High Court arises in a case pending
before him. We have already mentioned that the bail
application, which is said to have thrown up the
question of law referred for the decision of the High
Court, had already been disposed of by the learned
Sessions Judge, Jodhpur on Nov. 16, 1983. Since the
case involving the question referred was no longer
pending before the learned Sessions Judge on Nov. 30,
1983, he had no power or jurisdiction to make the
reference. On that ground mainly, and also on the
ancillary ground that a Court should not engage itself
in deciding moot controversies and academic
questions, we decline to decide the questions raised in
Criminal Reference No. 4 of 1983. The application for
bail made by Pramod Kumar which is still pending
before the single Bench and which has been kept so
pending on account of the reference made by the learned
Sessions Judge, Jodhpur relatable to the bail
application of the said Pramod Kumar made earlier
before the Sessions Judge, may be sent back to the single
Bench for disposal according to law.”
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21. In Ajaz Ahmad Dobi & Ors v. State5, a bail application of the accused
was made to the learned Chief Judicial Magistrate (‘CJM’) at the stage of
investigation. The learned CJM, being unsatisfied with the manner of
investigation, upon dismissing the bail application on merits, made a
reference under Section 395(2) of Cr.P.C from the said application requesting
the High Court to issue a direction to constitute a Special Investigation Team
to investigate the offense on the ground of general public interests. The High
Court of Jammu and Kashmir upon observing that the reference was made (a)
without formulating a ‘question of law’ and (b) upon dismissing the bail
application from which the reference was made, held that a reference can be
made only for some compelling reason in an extraordinary circumstance,
and not for any fanciful or spent up purpose. Reference was declined by
the Court with the following observations:
“9. The Courts, including the Magisterial Courts, have
been constituted to do justice in accordance with law. A
Judicial Magistrate, while dealing with an application
for bail or with proceedings relating to investigation of
a case, has to strictly proceed in accordance with the
provisions contained in the Code of Criminal
Procedure. He cannot go beyond the four corners of law
while passing orders in such proceedings. The crime
under investigation regarding which the ld. Magistrate
has decided the bail application of the accused may, in
his opinion, have ramifications of general public
importance but the same does not give a licence to the
Magistrate to beseech the High Court to issue
directions. It seems that the ld. Magistrate sensing that
his direction regarding constitution of a Special
Investigating Team is not going to be implemented and5
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is likely to be challenged before a higher forum, made
the instant reference to circumvent the aforesaid
course of action by the State. The ld. Magistrate by
passing the order of reference, which does not state
any question of law, perhaps wants this Court to treat
it as a public interest petition. I am afraid the course
adopted by the ld. Magistrate is unknown to law and
without any legal sanctity. There was absolutely no
occasion for the learned Magistrate to make any
reference to the High Court in the facts and
circumstances of the case.
10. It is needless to state that a reference should be
made by a subordinate court under sub-section (2) or
sub-section (1) of Section 395 of Cr.P.C. only for some
compelling reason in an extraordinary circumstance,
and not for any fanciful or spent up purpose. In the
instant case, the purpose for which the reference has
been made by the ld. Magistrate is wholly irrelevant and
no question for reference to this Court at all has been
stated. The reference is, therefore, wholly unwarranted
and deserves to be declined.”
22. In Brajesh Bahadur Singh v. State of Jharkhand6, the High Court of
Jharkhand clearly observed that unless a case is pending before the
subordinate court, a reference would not lie. The observations of the Court are
set out below:
“3. From the facts appearing the reference as stated by
the learned Sub-Divisional Judicial Magistrate, Gumla,
it appears that nowhere it has been stated that any case
involving the question referred by him is pending
before him.
4. Section 395 of the Code of Criminal Procedure
clearly envisages that to make a valid reference under
the aforesaid section it must be shown that the question
6
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of law referred for the decision of the High Court arises
in a case pending before the Court, which has referred
it.
If no case is pending before a Subordinate Court, then
it has no power or jurisdiction to make reference under
Section 395, Cr PC.
5. The High Court will not under Section 395, Cr PC
answer any hypothetical question of law. Any
Subordinate Court cannot make reference to the High
Court under Section 395 of the Cr PC unless the
questions referred to arise in a particular case pending
before it.”
23. Therefore, from the above said decisions it can be observed that for
making a valid reference under Section 395(2) of Cr.P.C:
i. The case (any application, petition, trial, appeal or revision etc,.) must
be pending before the court.
ii. The Court of Session or a Metropolitan Magistrate ought to formulate
the question of law arising from the hearing of the said case.
iii. The reference has to be made only for some compelling reason in an
extraordinary circumstance, and not for any fanciful or spent up
purpose
24. In the present case, the Special Judge under the PC Act, 1988
functioning as the CBI Court has not only made a reference upon the dismissal
of the letter rogatory application but has also sought clarification on well
settled legal principles, which appears to be unwarranted. In fact, the CBI
Court has made various observations on the merits of the matter when the case
is at a nascent stage of investigation. The opinion of the said Special Judge is
that the FIR, in itself, lacks any basis. The Special Judge goes to the extent of
holding that this FIR in itself deserves to be quashed when none of the persons
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who are under investigation have sought quashing of FIR.
25. As elaborated in the following sections, it is settled law that the Court’s
duty is to refrain from interfering in the investigative process and to confine
its role to providing judicial assistance in course of investigation. The Apex
Court in Union of India (UOI) vs. Prakash P. Hinduja and Ors7 observed as
under
“19. Thus the legal position is absolutely clear and also
settled by judicial authorities that the Court would not
interfere with the investigation or during the course of
investigation which would mean from the time of the
lodging of the First Information Report till the
submission of the report by the officer in charge of
police station in court under Section 173(2) Cr.P.C.,
this field being exclusively reserved for the
investigating agency.”
26. Thus, in this context, this Court is of the opinion that the impugned
order dated 4th October, 2021 dismissing the application of the CBI and
raising questions for reference is not maintainable and wholly unsustainable.
The order deserves to be set aside and the application of the CBI deserves to
be restored to its original number for consideration. Although, this Court is
of the opinion that none of the questions raised, in fact, arise for consideration
and the legal position thereof is quite well settled, in order to avoid any further
delay, the same are being answered briefly.
III. QUESTION-(a)
Whether the officer in charge of a Police Station is at liberty to register
an FIR and enter an investigation even if the information does not
disclose the commission/happening of offense (cognizable)?
7
MANU/SC/0446/2003
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27. The framing of this question itself shows a lack of basic understanding
by the ld. Special Judge. The answer to the question is clearly in the negative.
It is the settled position in law that if the information received does not
disclose a cognizable offense but, in fact, a non-cognizable offense, the police
officer can investigate the same only under the order of a Magistrate under
Section 155(2) of Cr.P.C and for the said purpose, the police officer has to
approach the concerned Magistrate. This is clear from a reading of Section
155 of Cr.P.C and the decision of the Supreme Court in State of Haryana v.
Bhajan Lal8. The said paragraph reads as under:
“34. In this connection, it may be noted that though a
police officer cannot investigate a non-cognizable
offense on his own as in the case of cognizable offense,
he can investigate a non-cognizable offense under the
order of a Magistrate having power to try such non-
cognizable case or commit the same for trial within the
terms Under Section 155(2) of the Code but subject to
Section 155(3) of the Code. Further, under the newly
introduced Sub-section (4) to Section 155, where a case
relates to two offenses to which atleast one is cognizable,
the case shall be deemed to be a cognizable case
notwithstanding that the other offenses are non-cognizable
and, therefore, under such circumstances the police
officers can investigate such offenses with the same powers
as he has while investigating a cognizable offense.”
28. The procedure prescribed under Section 155 of Cr.P.C is mandatory in
nature even for executive agencies such as CBI. In Adesh Kumar Gupta v.
CBI9, where the Petitioner had sought quashing of the FIR registered by CBI,
Anti-Corruption Bureau under Section 168 IPC (a non-cognizable offense) on
8
MANU/SC/0115/1992
9
MANU/DE/2516/2015
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the grounds that there was non-compliance of mandatory provision of Section
155(1) of the Cr.P.C, the learned Single Bench of Delhi High Court held that
the procedure under Section 155 of Cr.P.C was mandatory even in cases
registered by the CBI. The relevant observations are as under
“19. In this context I am reminded of the luminous
observations of Hon’ble Supreme Court in Viteralli v.
Seton, 359 U.S. 535: 3L.Ed. 1012 that were echoed by
the Hon’ble Supreme Court in the landmark decision
reported as R.D. Shetty vs. International Airport
Authority of India and Ors., MANU/SC/0048/1979 : AIR
1979 SC 1628 wherein it was observed as follows:-
“An executive agency must be rigorously held to
the standards by which it professes its action to be
judged. Accordingly, if dismissal from employment
is based on a defined procedure, even though
generous beyond the requirements that bind such
agency, that procedure must be scrupulously
observed. This judicially evolved rule of
administrative law is now firmly established and, if
I may add, rightly so. He that takes the procedural
sword shall perish with the sword.”
20. It requires no reiteration that observance of due
process of law is fundamental in the effective
functioning of the executive machinery. The Supreme
Court, since 1950, in the celebrated decision in A.K.
Gopalan vs. State of Madras, reported as
MANU/SC/0012/1950 : AIR 1950 SC 27 has emphasized
and re-emphasized the importance of following due
process. The CBI is a premier investigating agency
professing high standards of professional integrity and
must be held strictly to those standards. Resultantly,
the CBI ought to have followed the procedure
mandated by law in the recording of the relevant
information and further ought to have referred the
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“informant” to the Magistrate. Ex facie this
mandatory statutory requirement was violated and not
complied with in the present case.
21. In view of the aforesaid discussion, the question
“whether the impugned order was passed in violation of
the procedure prescribed under section 155 of the
Code”, is answered in the affirmative. The concerned
Magistrate has clearly erred in allowing the application
filed on behalf of the CBI.”
These cases clearly inform that a Police Officer in charge of a Police Station
and CBI, is not at liberty to register FIR and start investigation if the
information does not disclose commission of offense a cognizable offense.
29. However, it is also the settled position in law that upon information
being given to a Police Officer, he/she only needs to examine whether a
cognizable offense has been committed to register an FIR and start an
investigation. Two important aspects that are worth noting are that (a)
the threshold that the information received needs to satisfy under Section
157 of IPC is low (standard of reasonable suspicion); and (b) it is
completely at the subjective discretion of the Police Officer. In other
words, the information has to satisfy only the Police Officer as to the
existence of a reasonable basis to suspect the commission of a cognizable
offense. Therefore, at the stage of registration of an FIR, the police need not
assess the issue on merits. The Supreme Court in Superintendent of Police,
CBI & Ors. v. Tapan Kumar Singh has observed as follows
“22. It is well settled that a First Information Report is
not an encyclopedia, which must disclose all facts and
details relating to the offense reported. An informant
may lodge a report about the commission of an offense
though he may not know the name of the victim or his
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assailant. He may not even know how the occurrence
took place. A first informant need not necessarily be an
eye witness so as to be able to disclose in great details
all aspects of the offense committed. What is of
significance is that the information given must disclose
the commission of a cognizable offense and the
information so lodged must provide a basis for the
police officer to suspect the commission of a
cognizable offense. At this stage it is enough if the
police officer on the basis of the information given
suspects the commission of a cognizable offense, and not
that he must be convinced or satisfied that a cognizable
offense has been committed. If he has reasons to
suspect, on the basis of information received, that a
cognizable offense may have been committed, he is
bound to record the information and conduct an
investigation. At this stage it is also not necessary for
him to satisfy himself abut the truthfulness of the
information. It is only after a complete investigation
that he may be able to report on the truthfulness or
otherwise of the information. Similarly, even if the
information does not furnish all the details, he must
find out those details in the course of investigation and
collect all the necessary evidence. The information
given disclosing the commission of a cognizable
offense only sets in motion the investigative
machinery, with a view to collect all necessary
evidence, and thereafter to take action in accordance
with law. The true test is whether the information
furnished provides a reason to suspect the commission
of an offense, which the concerned police officer is
empowered under Section 156 of the Code to
investigate. If it does, he has no option but to record
the information and proceed to investigate the case
either himself or depute any other competent officer to
conduct the investigation.”
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30. In Lalita Kumari v. State of Uttar Pradesh10, the Constitution Bench
while interpretating Section 154 (1) of Cr.P.C observed as under:
“40. The use of the word “shall” in Section 154(1) of the
Code clearly shows the legislative intent that it is
mandatory to register an FIR if the information given to
the police discloses the commission of a cognizable
offense.
41. In Khub Chand (supra), this Court observed as
under:
7…The term “shall” in its ordinary significance is
mandatory and the court shall ordinarily give that
interpretation to that term unless such an
interpretation leads to some absurd or
inconvenient consequence or be at variance with
the intent of the legislature, to be collected from
other parts of the Act. The construction of the said
expression depends on the provisions of a
particular Act, the setting in which the expression
appears, the object for which the direction is given,
the consequences that would flow from the
infringement of the direction and such other
considerations….
42. It is relevant to mention that the object of using the
word “shall” in the context of Section 154(1) of the Code
is to ensure that all information relating to all
cognizable offenses is promptly registered by the police
and investigated in accordance with the provisions of
law.
43. Investigation of offenses and prosecution of
offenders are the duties of the State. For “cognizable
offenses”, a duty has been cast upon the police to
register FIR and to conduct investigation except as
otherwise permitted specifically under Section 157 of
the Code. If a discretion, option or latitude is allowed to10
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the police in the matter of registration of FIRs, 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.
44. Therefore, the context in which the word “shall”
appears in Section 154(1) of the Code, the object for
which it has been used and the consequences that will
follow from the infringement of the direction to register
FIRs, all these factors clearly show that the word “shall”
used in Section 154(1) needs to be given its ordinary
meaning of being of “mandatory” character. The
provisions of Section 154(1) of the Code, read in the
light of the statutory scheme, do not admit of conferring
any discretion on the officer in-charge of the police
station for embarking upon a preliminary inquiry prior
to the registration of an FIR. It is settled position of law
that if the provision is unambiguous and the legislative
intent is clear, the court need not call into it any other
rules of construction.
45. In view of the above, 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
offense 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. Section 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.
46. In view of the above, we are satisfied that Section
154(1) of the Code does not have any ambiguity in this
regard and is in clear terms. It is relevant to mention
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that Section 39 of the Code casts a statutory duty on
every person to inform about commission of certain
offenses which includes offenses covered by Sections
121 to 126, 302, 64A, 382, 392 etc., of the Indian Penal
Code. It would be incongruous to suggest that though it
is the duty of every citizen to inform about commission
of an offense, but it is not obligatory on the officer-in
charge of a Police Station to register the report. The
word ‘shall’ occurring in Section 39 of the Code has to
be given the same meaning as the word ‘shall’ occurring
in Section 154(1) of the Code.”
31. The Supreme Court also concluded in paragraph 111 as under:
“111. 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 offense and no preliminary inquiry is
permissible in such a situation.”
32. The conclusion, therefore, on Question (a) is that upon information
being received, if the information does not disclose a cognizable offense but
rather a non-cognizable offense, the Police or CBI cannot register an FIR or
start an investigation. They must file a CSR report and mandatorily follow the
procedure prescribed under Section 155 of Cr.P.C to initiate an investigation.
But, in case the information discloses the commission of a cognizable offense,
an FIR can be registered and investigation can be initiated.
IV. QUESTIONS (b) AND (c)
Question-(b) Whether the Metropolitan Magistrate or the Special Court,
as the case may be, can bring to the notice of the Hon’ble High Court for
appropriate order of quashing the FIR registered on the basis of
information not disclosing commission (happening) of offense
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(cognizable)? In order words, whether Magistrate or the Special Court
has to remain a silent spectator till filling of the report under Section
173(2) CrPC and keep on assisting the Investigating Agency by issuance
of search warrant, letter rogatory etc., as and when asked for by the
investigating agency during investigation?
Question-(c). Does not power of supervision over investigation, of the
Magistrate or the Special Court include questioning the registration of
FIR on facts not disclosing commission of offense (cognizable)? If yes,
what course of action should the Magistrate or the Special Court follow
if it holds the view that the facts in the FIR do not disclose
happening/commission of any offense?
33. As answers to Questions (b) & (c) are closely related, they are answered
together in this section. The above two questions require this Court to revisit
the basic principles of criminal law. Once an FIR is registered, it is the settled
position that investigation is purely within the domain of the Police/ any other
investigating agency. The Magistrate whose assistance may be sought at
different steps of the investigation is not to go into the validity of the FIR.
Earlier the Cr.P.C and presently the B.N.S.S, contemplates various stages at
which the Magistrate’s assistance could be sought by the police or by the
investigating agency These principles have been settled in a catena of
judgements.
34. In Nazir Ahmad and The King-Emperor11, the Privy Council was
dealing with a case where the Appellant was convicted on the strength of a
11
1936 SCC OnLine PC 41
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confession said to have been made by him to a Magistrate under the provisions
of Section 164 of the Cr.P.C. Oral evidence of the said alleged confession was
given by the learned Magistrate but the same was not recorded by him. While
dealing with the aforesaid situation, the Privy Council observed and held as
under:-
“The rule which applied is a different and not less well
recognized rule, namely, that where a power is given to
do a certain thing in a certain way the thing must be
done in that way or not at all. Other methods of
performance are necessarily forbidden.”
35. The Privy Council in Emperor v. Khwaja Nazir Ahmad12
“12. In their Lordships’ opinion however, the more
serious aspect of the case is to be found in the resultant
interference by the Court with she duties of the police.
Just as it is essential that every one accused of a crime
should have free access to a Court of justice so that he
may be duly, acquitted if found not guilty of the offence
with which he is charged, so it is of the utmost
importance that the judiciary should not interfere with
the police in matters which are within their province
and into which the law imposes upon them the duty of
enquiry.
In India as has been shown there is a statutory right
on the part of the police to investigate the
circumstances of an alleged cognizable crime without
requiring any authority from the judicial authorities,
and it would, as their Lordships think, be an
unfortunate result if it should be held possible to
interfere with those statutory rights by an exercise of
the inherent jurisdiction of the Court.
The functions of the judiciary and the police are
complementary not overlapping and the combination
of individual liberty with a due observance of law and
12
MANU/PR/0007/1944
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order is only to be obtained by leaving each to exercise
its own function, always, of course, subject to the right
of the Court to intervene in an appropriate case when
moved under Section 491, Criminal P.C. to give
directions in the nature of habeas corpus”
36. As far back as 1970, the Supreme Court in S.N. Sharma v. Bipin
Kumar Tiwari & Ors.13 observed that the Cr.P.C does not vest the power to
the Magistrate to stop an investigation. The observations of the Supreme
Court read as under:
“5. It may also be further noticed that, even in Sub-
section (3) of Section 156, the only power given to the
Magistrate, who can take cognizance of an offense
under Section 190, is to order an investigation; there
is no mention of any power to stop an investigation by
the police. The scheme of these sections, thus, clearly
is that the power of the police to investigate any
cognizable offense is uncontrolled by the Magistrate,
and it is only in cases where the police decide not to
investigate the case that the Magistrate can intervene
and either direct an investigation, or, in the alternative,
himself proceed or depute a Magistrate subordinate to
him to proceed to enquire into the case. The power of
the police to investigate has been made independent of
any control by the Magistrate.
6. …
7. This interpretation, to some extent, supports the view
that the scheme of the Criminal Procedure Code is that
the power of the police to investigate a cognizable
offense is not to be interfered with by the judiciary…
8. ….. It appears to us that, though the Cr. PC gives to
the police unfettered power to investigate all cases
13
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where they suspect that a cognizable offense has been
committed, in appropriate cases an aggrieved person
can always seek a remedy by invoking the power of the
High Court under Article 226 of the Constitution
under which, if the High Court could be convinced that
the power of investigation has been exercised by a
police officer mala fide, the High Court can always
issue a writ of mandamus restraining the police officer
from misusing his legal powers.”
37. The Apex Court in Union of India (UOI) vs. Prakash P. Hinduja and
Ors (Supra) observed as under
“19. Thus the legal position is absolutely clear and also
settled by judicial authorities that the Court would not
interfere with the investigation or during the course of
investigation which would mean from the time of the
lodging of the First Information Report till the
submission of the report by the officer in charge of
police station in court under Section 173(2) Cr.P.C.,
this field being exclusively reserved for the
investigating agency.”
38. From the above, it is clear that the only way in which investigation can
be interdicted is through an exercise of the inherent powers by the High Court
or the Supreme Court to quash the FIR at the instance of the aggrieved person.
Hon’ble Supreme Court in Adalat Prasad v. Rooplal Jindal And Others14,
while overruling the judgment of the Hon’ble Supreme Court in K.M. Mathew
v. State of Kerala15 held that the observation made in K.M. Mathew (supra)
case that no specific provision of law is required for recalling an erroneous
order of issuance of process; would run counter to the scheme of Code which
14
(2004) 7 SCC 338, MANU/SC/0688/2004
15
(1992) 1 SCC 217
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has not provided for review and prohibits interference at interlocutory stages.
The Hon’ble Supreme Court was dealing with a case where after issuance of
process under Section 204 of the CrPC the summoned accused could make an
application for discharge by invoking Section 203 of the Code. The Court
observed and held as under:-
“15. It is true that if a Magistrate takes cognizance of
an offence, issues process without there being any
allegation against the accused or any material
implicating the accused or in contravention of provision
of Sections 200 & 202, the order of the Magistrate may
be vitiated, but then the relief an aggrieved accused can
obtain at that stage is not by invoking Section 203 of the
Code because the Criminal Procedure Code does not
contemplate a review of an order. Hence in the absence
of any review power or inherent power with the
subordinate criminal courts, the remedy lies in
invoking Section 482 of Code.”
39. Similarly, in Mithabhai Pashabhai Patel and Ors. vs. State of
Gujarat16 the Apex Court observed as follows
“21. The investigating agency and/or a court exercise
their jurisdiction conferred on them only in terms of the
provisions of the Code. The courts subordinate to the
High Court even do not have any inherent power
under Section 482 of the Code of Criminal Procedure
or otherwise. The pre- cognizance jurisdiction to
remand vested in the subordinate courts, therefore, must
be exercised within the four-corners of the Code.”
40. In Union of India v. W.N. Chadha17, where the Supreme Court was
considering the validity of a letter rogatory issued by the Magistrate, the Court
16
MANU/SC/0858/2009
17
MANU/SC/0149/1993
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held that even the person against whom the letter rogatory is sought does not
have the locus to oppose the same at that stage. The observations of the
Supreme Court are set out below:
“48. According to the respondent, even the entire
allegations in the FIR do not constitute any offense
against any of the accused much less against him and
they are all frivolous, baseless and nothing more than
mud slinking. Further, he has started attacking the
conduct of the investigating agency in requesting the
Court to issue letter rogatory and the authority of the
Special Court in issuing letters rogatory on 5/7th
February, 1990 and subsequently the ratified letter,
rogatory issued on 21/22nd August, 1990. In short,
before the High Court his effort was to show that the
entire criminal proceeding is an aimless voyage or a
roving expedition with oblique motive and that he has
been caught in a political cross fire which smacks of
personal vendetta and in which he has absolutely no
role to play. The above breathtaking deliberation and
debate made before the High Court has yielded the
desired effect of quashing the F.I.R., letters rogatory,
and all other proceedings arising therefrom, as pointed
out earlier.
xxx
103. Merely because the Special Judge heard counsel
for the CBI before issuing letter rogatory the
respondent cannot make such a complaint that he
should have also been given prior notice to present his
case as we have repeatedly pointed out that the stage
of investigation is only at the door. The order sought
for from the Special Judge by CBI is only for process
of judicial assistance from the competent judicial
authorities in the Confederation of Switzerland for
investigation and collection of evidence. In such a case
the accused has no right to raise the voice of
opposition.
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158……… Only if the investigation is freely allowed
without any hindrance, the investigating agency can
collect all the requisite particulars and bring the
names of those public servants on record, the secrecy
of which, it is said, is deeply buried in various places
and under various Departments. Hence this reasoning
is devoid of any merit.”
Thus, even in the case of issuance of a letter rogatory, the Supreme Court
clearly holds that the Magistrate is not to go into merits of the FIR. But, the
Court has to satisfy itself with the procedural aspect of the letter rogatory.
41. It is also well settled that the non-identification of an accused in an FIR
does not vitiate the same. The FIR, being the first document to commence
investigation, can also be registered against an unknown person. In Tapan
Kumar Singh(Supra)18, the nature of the FIR as a document, was dealt with
in detail by the Supreme Court, and it observed as under:
“21. The High Court fell into an error in thinking that
the information received by the Police could not be
treated as a First Information Report since the
allegation was vague in as much as it was not stated
from whom the sum of rupees one lakh was demanded
and accepted. Nor was it stated that such demand or
acceptance was made as motive or reward for doing or
forbearing to do any official act, or for showing or
forbearing to show in exercise of his official function,
favour or disfavour to any person or for rendering,
attempting to render any service or disservice to any
person. Thus, there was no basis for a police officer to
suspect the commission of an offense which he was
empowered under Section 156 of the Code to
investigate.
22. It is well settled that a First Information Report is
18
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not an encyclopedia, which must disclose all facts and
details relating to the offense reported. An informant
may lodge a report about the commission of an offense
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 details
all aspects of the offense committed. What is of
significance is that the information given must disclose
the commission of a cognizable offense and the
information so lodged must provide a basis for the
police officer to suspect the commission of a
cognizable offense. At this stage it is enough if the
police officer on the basis of the information given
suspects the commission of a cognizable offense, and not
that he must be convinced or satisfied that a cognizable
offense has been committed. If he has reasons to
suspect, on the basis of information received, that a
cognizable offense may have been committed, he is
bound to record the information and conduct an
investigation. At this stage it is also not necessary for
him to satisfy himself about the truthfulness of the
information. It is only after a complete investigation
that he may be able to report on the truthfulness or
otherwise of the information. Similarly, even if the
information does not furnish all the details, he must
find out those details in the course of investigation and
collect all the necessary evidence. The information
given disclosing the commission of a cognizable
offense only sets in motion the investigative
machinery, with a view to collect all necessary
evidence, and thereafter to take action in accordance
with law. The true test is whether the information
furnished provides a reason to suspect the commission
of an offense, which the concerned police officer is
empowered under Section 156 of the Code to
investigate. If it does, he has no option but to record
the information and proceed to investigate the caseCRL.REF. 3/2021 & W.P.(CRL) 388/2022 Page 33 of 45
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either himself or depute any other competent officer to
conduct the investigation.”
42. Lastly, as recently as 2021, the Supreme Court in Neeharika
Infrastructure Pvt. Ltd. vs. State of Maharashtra and Ors.19, again reiterated
and upheld the above mentioned principles as under
“23. In view of the above and for the reasons stated
above, …, our final conclusions are as under:
i) Police has the statutory right and duty under the
relevant provisions of the Code of Criminal
Procedure contained in Chapter XIV of the Code
to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the
cognizable offences;
iii) It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first
information report that the Court will not permit
an investigation to go on;
…
v) While examining an FIR/complaint, quashing of
which is sought, the court cannot embark upon an
enquiry as to the reliability or genuineness or
otherwise of the allegations made in the
FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the
initial stage;
…
viii) Ordinarily, the courts are barred from usurping
the jurisdiction of the police, since the two organs
of the State operate in two specific spheres of
activities and one ought not to tread over the other
sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
xii) The first information report is not an
19
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encyclopaedia which must disclose all facts and
details relating to the offense reported. Therefore,
when the investigation by the police is in progress,
the court should not go into the merits of the
allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature
to pronounce the conclusion based on hazy facts
that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process
of law. After investigation, if the investigating
officer finds that there is no substance in the
application made by the complainant, the
investigating officer may file an appropriate
report/summary before the learned Magistrate
which may be considered by the learned Magistrate
in accordance with the known procedure”
43. The finding of the Supreme Court with respect to ‘non-identification
of the accused in an FIR’ is subsequently followed in various decisions of this
Court which are listed below:
A. CBI v. SBI [W.P.(Crl) 2842/2022]
B. CBI v. Shayam Narang [W.P.(Crl) 847/2021]
C. CBI v. Union Bank of India [W.P.(Crl) 1909/2022]
D. CBI v. Punjab National Bank [W.P.(Crl) 2408/2022]
E. CBI v. Bank of Baroda [W.P.(Crl) 2070/2022]
44. The conclusion, therefore, on Questions (b) and (c) is that the
Magistrate or the Special Court must, in fact, remain a silent spectator till
filling of the report under Section 173(2) Cr.P.C and limit its actions to
judicial assistance because investigation is the prerogative of the police/
investigative agency and the Court shall not interfere with it till the Final
Report is submitted. The questioning of the validity of the FIR can only be
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raised under the provisions of Section 482 of the Cr.P.C or Articles 226/227
of the Constitution of India and since the concerned learned Metropolitan
Magistrate or the Special Court do not exercise inherent powers under the
Cr.P.C and there is no provision provided for in the Cr.P.C for bringing to
the notice of Hon’ble High Court for appropriate order for quashing of the
FIR then the same would be not impermissible. Similarly, the power to
supervise an investigation definitely does not include the right to question the
same. However, it is also a pre-settled principle of law that learned
Metropolitan Magistrate or the Special Court on being approached by the
investigating agency for issuing of search warrant or similar assistance will
exercise judicial discretion in the overall facts and circumstances of each case.
For the sake of the present refernce it will be suffice to say that, although, the
validity of the FIR cannot be examined by the concerned Court, however, any
assistance sought by the investigating agency during the course of the
investigation still have to be determined by such Courts in view of the settled
principles of law. Questions (b) and (c) are answered, accordingly.
V. QUESTION – (d)
In the event of doubt (reflected from the informant’s points of view) about
the commission of the offense (cognizable), will it not be appropriate for
CBI to seek permission of Hon’ble High Court or Hon’ble Supreme Court
to register FIR/RC for investigation of doubtful commission of offense
(cognizable)?
45. In the above question, the doubt raised is that since the Special Judge
is of the opinion that no cognizable offense is disclosed, shouldn’t the CBI be
asked to approach the High Court or the Supreme Court for investigation of
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doubtful offenses. The above question is replete with anomalies and errors.
The CBI, being an investigation agency, upon having sufficient information
for registration of an FIR, as per law, could proceed to register the FIR. In
cases where the Investigation Officer of CBI is of the opinion that a complaint
received indicates a misconduct, but is not adequate to justify registration of
an FIR/Regular Case, he is empowered to proceed with a Preliminary Enquiry
(hereinafter ‘PE’) to ascertain the existence and nature of the offense. This is
provided in paragraph 9.1 Chapter 9 of the CBI Manual which reads as under:
“PRELIMINARY ENQUIRY
9.1 When, a complaint is received or information is
available which may, after verification as enjoined in
this Manual, indicate serious misconduct on the part
of a public servant but is not adequate to justify
registration of a regular case under the provisions of
Section 154 Cr.P.C., a Preliminary Enquiry may be
registered after obtaining approval of the Competent
Authority. Sometimes the High Courts and Supreme
Court also entrust matters to Central Bureau of
Investigation for enquiry and submission of report. In
such situations also which may be rare, a ‘Preliminary
Enquiry’ may be registered after obtaining orders from
the Head Office. When the verification of a complaint
and source information reveals commission of a prima
facie cognizable offense, a Regular Case is to be
registered as is enjoined by law. A PE may be converted
into RC as soon as sufficient material becomes available
to show that prima facie there has been commission of
a cognizable offense. When information available is
adequate to indicate commission of cognizable offense
or its discreet verification leads to similar conclusion,
a Regular Case must be registered instead of a
Preliminary Enquiry. It is, therefore, necessary that the
SP must carefully analyse material available at the timeCRL.REF. 3/2021 & W.P.(CRL) 388/2022 Page 37 of 45
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of evaluating the verification report submitted by
Verifying Officer so that registration of PE is not
resorted to where a Regular Case can be registered.
Where material or information available clearly
indicates that it would be a case of misconduct and not
criminal misconduct, it would be appropriate that the
matter is referred to the department at that stage itself
by sending a self-contained note. In such cases, no
‘Preliminary Enquiry’ should be registered. In cases,
involving bank and commercial frauds, a reference may
be made to the Advisory Board for Banking,
Commercial & Financial Frauds for advice before
taking up a PE in case it is felt necessary to obtain such
advice.”
46. The said procedure set out in the manual has been approved by the
Supreme Court in Lalita Kumari (supra) as also CBI v. Thommandru
Hannah20. In Lalita Kumari (supra), the Supreme Court has observed in the
context of police investigations as under:
“110. Therefore, in view of various counter claims
regarding registration or non-registration, what is
necessary is only that the information given to the police
must disclose the commission of a cognizable offense. In
such a situation, registration of an FIR is mandatory.
However, if no cognizable offense is made out in the
information given, then the FIR need not be registered
immediately and perhaps the police can conduct a sort
of preliminary verification or inquiry for the limited
purpose of ascertaining as to whether a cognizable
offense has been committed. But, if the information
given clearly mentions the commission of a cognizable
offense, there is no other option but to register an FIR
forthwith. Other considerations are not relevant at the
stage of registration of FIR, such as, whether the
information is falsely given, whether the information20
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is genuine, whether the information is credible etc.
These are the issues that have to be verified during the
investigation of the FIR. At the stage of registration of
FIR, what is to be seen is merely whether the
information given ex facie discloses the commission of
a cognizable offense. If, after investigation, the
information given is found to be false, there is always an
option to prosecute the complainant for filing a false
FIR.
Conclusion/Directions:
111. 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 offense and no preliminary inquiry is
permissible in such a situation.
(ii) If the information received does not disclose a
cognizable offense but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only
to ascertain whether cognizable offense is disclosed or
not.
(iii) If the inquiry discloses the commission of a
cognizable offense, 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 offense if cognizable offense is disclosed.
Action must be taken against erring officers who do not
register the FIR if information received by him discloses
a cognizable offense.
(v) The scope of preliminary inquiry is not to verify the
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veracity or otherwise of the information received but
only to ascertain whether the information reveals any
cognizable offense.
(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 offenses
(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 fifteen days generally and in exceptional cases,
by giving adequate reasons, six weeks time is provided.
The fact of such delay and the causes of it must be
reflected in the General Diary entry.
(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 offenses, 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.”
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47. In the context of the CBI, the Supreme Court in CBI v. Thommandru
Hannah(supra) observed as under:
“29. The precedents of this Court and the provisions
of the CBI Manual make it abundantly clear that a
Preliminary Enquiry is not mandatory in all cases
which involve allegations of corruption. The decision
of the Constitution Bench in Lalita Kumari (supra)
holds that if the information received discloses the
commission of a cognizable offense at the outset, no
Preliminary Enquiry would be required. It also clarified
that the scope of a Preliminary Enquiry is not to check
the veracity of the information received, but only to
scrutinize whether it discloses the commission of a
cognizable offense. Similarly, para 9.1 of the CBI
Manual notes that a Preliminary Enquiry is required
only if the information (whether verified or unverified)
does not disclose the commission of a cognizable
offense. Even when a Preliminary Enquiry is initiated, it
has to stop as soon as the officer ascertains that enough
material has been collected which discloses the
commission of a cognizable offense. A similar
conclusion has been reached by a two Judge Bench in
Managipet (supra) as well. Hence, the proposition that
a Preliminary Enquiry is mandatory is plainly contrary
to law, for it is not only contrary to the decision of the
Constitution Bench in Lalita Kumari (supra) but would
also tear apart the framework created by the CBI
Manual.
xxx
33. The above formulation does not take away from the
value of conducting a Preliminary Enquiry in an
appropriate case. This has been acknowledged by the
decisions of this Court in P Sirajuddin (supra), Lalita
Kumari (supra) and Charansingh (supra). Even in
Vinod Dua (supra), this Court noted that “[a]s a matter
of fact, the accepted norm-be it in the form of CBI
Manual or like instruments is to insist on a preliminaryCRL.REF. 3/2021 & W.P.(CRL) 388/2022 Page 41 of 45
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inquiry”. The registration of a Regular Case can have
disastrous consequences for the career of an officer, if
the allegations ultimately turn out to be false. In a
Preliminary Enquiry, the CBI is allowed access to
documentary records and speak to persons just as they
would in an investigation, which entails that
information gathered can be used at the investigation
stage as well. Hence, conducting a Preliminary Enquiry
would not take away from the ultimate goal of
prosecuting Accused persons in a timely manner.
However, we once again clarify that if the CBI chooses
not to hold a Preliminary Enquiry, the Accused cannot
demand it as a matter of right. As clarified by this Court
in Managipet (supra), the purpose of Lalita Kumari
(supra) noting that a Preliminary Enquiry is valuable in
corruption cases was not to vest a right in the Accused
but to ensure that there is no abuse of the process of law
in order to target public servants.”
48. A perusal of the above two decisions would show that a PE is not
mandatory in all cases of corruption. The purpose of the PE is only to analyse
whether the information received discloses the commission of a cognizable
offense.
49. Therefore, in conclusion, the answer to Question (d) is that if the CBI
feels that the information received does not disclose sufficient information to
justify the registration of a RC/FIR for a cognizable offense, it can register a
PE, conduct an enquiry and then arrive at a conclusion as to whether a
cognizable offense is disclosed and whether an RC/FIR has to be registered
or not. Thus, the question of the CBI approaching the High Court or the
Supreme Court does not arise. The remedies of the accused in respect of an
FIR are always left open and the CBI, as an investigative agency, cannot be
compelled to approach the High Court or the Supreme Court for seeking
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permission to register an FIR. Such a procedure is beyond the contemplation
of law.
50. The questions referred are accordingly answered as under:
Question (a) – Whether Officer in charge of a Police Station is at liberty
to register FIR and enter investigation even if
information does not disclose commission/happening of
offense (cognizable)?
Upon information being received, if the information does
not disclose a cognizable offense but rather a non-
cognizable offense, the Police or CBI cannot file an FIR and
start an investigation. They must file a CSR report and
mandatorily follow the procedure prescribed under Section
155 of Cr.P.C to initiate an investigation.
Question (b) – Whether the Metropolitan Magistrate or the Special
Court, as the case may be, cannot bring to notice of
Hon’ble High Court for appropriate order of quashing
regarding the FIR registered on the basis of information
not disclosing commission (happening) of offense
(cognizable)? In order word whether Magistrate or the
Special Court has to remain silent spectator till filling of
report under Section 173(2) CrPC and keep on assisting
the Investigating Agency by issuance of search warrant,
letter rogatory etc., as and when asked for by the
investigating agency during investigation?
The Magistrate or the Special Court must, in fact, remain a
silent spectator till filing of report under Section 173(2)
Cr.P.C and limit its actions to judicial assistance because
investigation is the prerogative of the police/ investigative
agency and Court shall not interfere in an investigation till
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the Final report is submitted.
Question (c) – Does not power of supervision over investigation, of the
Magistrate or the Special Court include questioning the
registration of FIR on facts not disclosing commission of
offense (cognizable)? If yes, what course of action should
Magistrate or the Special Court follow if it holds the
view that the facts in the FIR does not disclose
happening/commission of any offense?
The power to supervise an investigation definitely does not
include the right to question the validity of the FIR. The
questions are answered accordingly.
Question (d) – In the event of doubt (reflected from the informant’s
points of view) about the commission of offense
(cognizable), will it not be appropriate for CBI to seek
permission of Hon’ble High Court or Hon’ble Supreme
Court to register FIR/RC for investigation of doubtful
commission of offense (cognizable)?
If the CBI feels that the information received does not
disclose sufficient information to justify registration of an
RC/FIR for a cognizable offense, it can register a PE,
conduct an enquiry and then arrive at a conclusion as to
whether a cognizable offense is disclosed and whether an
RC/FIR has to be registered or not. Thus, the question of
CBI approaching the High Court or the Supreme Court does
not arise and such procedure is beyond contemplation of
law.
Question (e) – Whether the power of reference under Section 395(2)
can be exercised by the Court of Session or Metropolitan
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Magistrate only during the hearing of the case i.e., only
after chargesheet has been filed and accused
summoned/arrested and not during the investigation, if
certain question of law arises?
A reference can be made at any stage of a criminal process
including at the stage of investigation prior to the
submission of final report under Section 173(2) of Cr.P.C.
But for making a valid reference under Section 395(2), the
case (i.e., any application, petition, trial, appeal or revision
etc.,) ought to be pending before the Metropolitan
Magistrate or the Sessions Judge.
51. In W.P. (Crl) 388/2022, the application of the CBI for issuance of letter
rogatory under Section 166A is remanded for consideration before the Special
Judge, CBI Court. The case shall, however, be assigned to a different judicial
officer then the one who passed the impugned order. The CBI’s writ is,
accordingly, allowed in the above terms. The reference is disposed of in the
above terms.
52. The assistance provided by the ld. Amicus has been valuable and the
Court acknowledges his assistance as also the assistance of Mr. Anupam
Sharma, ld. Counsel for the CBI.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
NOVEMBER 28, 2024/dj/am
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