-By Megha Chaturvedi
Associate, H.K. Law Offices
Whenever we talk about criminal litigation or procedure, the first thing that comes to our mind is F.I.R. or complaint. First Information Report is registered u/s 154 Cr.P.C. in case of cognizable offences, only after which the police proceeds with the investigation, infact it becomes the duty of police officers to investigate upon such offences file charesheet/police report in the court. But before diving deeper into the concept, I would like to introduce you with the term ‘Zero FIR’. The concept came into light with the recommendation of the Justice Verma Committee Report which was set up after the heinous Nirbhaya Case of December 2012- New Criminal Law (Amendment) Act, 2013 brought the concept of Zero FIR.
ZERO FIR means that the FIR can be lodged at any police station irrespective of jurisdiction, which is not numbered and known as Zero FIR, it will be sent to concerned police station having territorial jurisdiction. Justice Suresh Kumar Kait in case of Kirti Vashisht v. State & Ors.[1] further directed the Commissioner of Police, Delhi to issue circular/standing order to all Police Stations in NCT of Delhi and all concerned to register a ZERO FIR in case a complaint is made by any person of cognizable offence.
Another term which is casually used in criminal litigation is ‘PRELIMINARY INQUIRY’ which forms the basis of first information report under Section 154 of the CrPC. The purpose of a preliminary inquiry is to ascertain whether a cognizable offence has been made out on the basis of which a first information report can be lodged.[2] It shall be noted that as per guidelines passed by the Constitutional Bench of Supreme Court of India in case of Lalita Kumari vs Govt. of U.P.& Ors[3] that Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation whereas If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. And if the inquiry discloses the commission of a cognizable offence, the FIR must be registered.
Henceforth, comes the process and stage of ‘INVESTIGATION’ which includes all the proceedings for the collection of evidence conducted by a police officer or by any person, authorised by a Magistrate[4] and it is the duty of police officers to investigate upon any complaint that is received by them and further the police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.[5] Even 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, disclosing the reasons in brief for closing the complaint and not proceeding further.[6]
Further, the Apex Court has elucidated that the Investigation can be ordered in varied forms and at different stages and comprises of various kinds namely Initial Investigation, Further Investigation and Fresh or de novo or reinvestigation. It has been clarified thar Right at the initial stage of receiving the FIR or a complaint, the court can direct investigation in accordance with the provisions of Section 156(1) in exercise of its powers under Section 156(3) of the Code.[7]
The Supreme Court of India in the recent judgement of State by Karnataka Lokayukta Police Station, Bengaluru v. M. R. Hiremath[8] has further emphasized on the guidelines that have been framed in the case of Lalita Kumari by holding that-
“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 offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence 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 offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, 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 information is genuine, whether the information is credible etc.”
Whereas in case of non-cognizable offences, the police officers cannot investigate without the order of the magistrate, and they shall only enter or cause to be entered the substance of the information in a book to be kept by such officer and refer the informant to the Magistrate.[9] Therefore, in order to carry investigation, order of magistrate is necessary before proceeding and subsequent permission will not validate the illegality.[10] Further, magistrate also has the power to direct the police to conduct investigation if any private complaint is made to him under Section 156(3) Cr.P.C.
Further, it is a settled proposition of law that no external agency can dictate the course of investigation in a criminal case. It is within the exclusive jurisdiction of the police and the Court also cannot control the investigation[11] but if the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.[12] Therefore, the Supreme Court has differentiated between the power of magistrate to hold or direct an investigation u/s 159 Cr.P.C. and supervise the investigation or monitor the same in case of unsatisfactory discharging of duties by Police Officers during the Investigation. When such investigation or preliminary inquiry is held by Magistrate in the Complaint cases, the process and stage is known ‘INQUIRY’ which is vaguely defined u/s 2(g) of Cr.P.C. It is noteworthy that Inquiry not only takes place in Complaint cases but is an important and mandatory stage prior to trial in all cases. The power of magistrate comes into play at this stage in pre-trial situations. The Magistrate while in the stage of inquiry can even direct reinvestigation or further order re-opening of the investigation even after the police submits the final report.[13]
The Magistrate is empowered to take cognizance of any offence u/s 190 Cr.P.C. upon receiving complaint directly u/s 156(3) Cr.P.C, police report u/s 173 Cr.P.C. or suo-motu. When complaint in made u/s 156(3) Cr.P.C., it is examined u/s 200 Cr.P.C. The Court of Sessions may also take cognizance of offences u/s 193 Cr.P.C. but not as Court of Original Jurisdiction. When Magistrate has taken cognizance of the offence, Court of Session cannot take cognizance again during the same period. If the case is committed by Magistrate to Sessions Court, then only Court of Session can exercise original jurisdiction.[14]
Thereby the Supreme Court has clearly observed the difference between these two significant Pre-Trial Stages by noting that the process of collecting evidence is called investigation whereas determining the truth and authenticity of the crime reported and its facts which is conducted by magistrate concerned is called inquiry.[15]
Further, in a recent landmark judgement of Supreme Court of India in the case of Vinubhai Haribhai Malaviya and Ors vs. The State of Gujarat and Anr[16], the Three Judges Bench has clearly marked the distinction between the Investigation, Inquiry and Trial by observing that-
“13. The statutory scheme contained in the Cr.P.C. therefore puts “inquiry” and “trial” in water-tight compartments, as the very definition of “inquiry” demonstrates. “Investigation” is for the purpose of collecting evidence by a police officer, and otherwise by any person authorised by a Magistrate in this behalf, and also pertains to a stage before the trial commences. Investigation which ultimately leads to a police report under the Cr.P.C. is an investigation conducted by the police and may be ordered in an inquiry made by the Magistrate himself in ‘complaint’ cases.”[17]
[1] 2019 SCC OnLine Del 11713
[2] P Sirajuddin Vs. State of Madras (1970) 1 SCC 595
[3] (2014) 2 SCC 1.
[4] Section 2(h) of the Criminal Procedure Code, 1973
[5] Ibid.
[6] Ibid.
[7] Vinay Tyagi v. Irshad Ali and Ors. (2013) 5 SCC 762
[8] (2019) 7 SCC 515
[9] Section 155 of the Criminal Procedure Code, 1973
[10] Sudharshan v. State of Karnataka
[11] R. Sarala v. T.S. Velu & Others (2000) 4 SCC 459), Ishwar Pratap Singh v. State of U.P. (2018) 13 SCC 612
[12] Sakiri Vasu v. State of U.P (2008) 2 SCC 409
[13] State of Bihar vs. A.C. Saldanna AIR 1980 SC 326
[14] Balveer Singh v. State of Rajasthan, (2016)
[15] Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel & Ors 2017 SCC OnLine SC 86
[16] JT 2019 (10) SC 537
[17] Ibid.
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