Dipanshu Chugh v. State

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 19:03 Padora as the Amicus Curiae. Submissions have been heard on behalf of the CBI and the Amicus.

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:

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:

19:03 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. 19:03

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 Kerala[1], 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:

MANU/KE/0730/2007 19:03 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 19:03 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 Rajasthan[2], and in Ajaz Ahmad Dobi & Ors v. State[3], 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 abovementioned 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 MANU/RH/0019/1986 MANU/JK/0246/2020 19:03 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.

20. In Mahesh Chand v. State of Rajasthan[4], 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:

MANU/RH/0019/1986 19:03 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 Subsection (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.” 19:03

21. In Ajaz Ahmad Dobi & Ors v. State[5], 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:

MANU/JK/0246/2020 19:03 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 Jharkhand[6], 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:

MANU/JH/0850/2004 19:03 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 19:03 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 Ors[7] observed as under

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)? MANU/SC/0446/2003 19:03

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 Lal[8]. The said paragraph reads as under:

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. CBI[9], where the Petitioner had sought quashing of the FIR registered by CBI, Anti-Corruption Bureau under Section 168 IPC (a non-cognizable offense) on MANU/SC/0115/1992 MANU/DE/2516/2015 19:03 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

19:03 "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

19:03 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.” 19:03

30. In Lalita Kumari v. State of Uttar Pradesh10, the Constitution Bench while interpretating Section 154 (1) of Cr.P.C observed as under:

MANU/SC/1166/2013 19:03 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 19:03 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.

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 19:03 (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

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 1936 SCC OnLine PC 41 19:03 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

MANU/PR/0007/1944 19:03 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:

MANU/SC/0182/1970 19:03 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

19:03 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:-

39. Similarly, in Mithabhai Pashabhai Patel and Ors. vs. State of Gujarat16 the Apex Court observed as follows

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 MANU/SC/0858/2009 MANU/SC/0149/1993 19:03 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:

19:03 158……… 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:

MANU/SC/0299/2003 19:03 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 investigate. If it does, he has no option but to record the information and proceed to investigate the case 19:03 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

MANU/SC/0272/2021 19:03 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 19:03 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 19:03 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 time 19:03 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:

MANU/SC/0831/2021 19:03 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

19:03 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.” 19:03

47. In the context of the CBI, the Supreme Court in CBI v. Thommandru Hannah(supra) observed as under:

19:03 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 19:03 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 noncognizable 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 19:03 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 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 19:03 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 19:03