Is S.154(3) of the CrPC rendered redundant?

In evolutionary biology, it is theorised that organs or body parts of a living organism/animal becomes degenerate, rudimentary, or atrophied, rendering it functionless in the course of evolution if not used for the purpose it was evolved. Section 154(3) of the Code of Criminal Procedure 1973 (CrPC) similarly has been rendered redundant and there are strong reasons for this analogy with a biological phenomenon.

S.154, the First Information Report (FIR)

There is hardly a day where we do not come across some news about how a certain cognisable offense was not registered by police officers of a police station? Lawyers practicing criminal law are well aware as coming across such grievances is ‘routine’ for them. What it means is that the police refused to register an FIR (First Information Report) as per S.154 of the CrPC. 

It is the registering of the first information report u/s 154 that sets the criminal law in motion. The offence can be brought to the notice of the concerned police officer by the victim or the first informer who may or may not be a witness to the crime/criminal action. An officer registers an FIR only when he concludes that the criminal action so reported is a cognisable offence. The criminal law can be set into motion by anybody, as there is no requirement of locus standi as required in civil law (locus standi meaning – right to bring an action, to be heard in a court of law).

S.154 of CrPC, reads as follows:

‘154. Information in cognizable cases.

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under subsection (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.’

When the remedy u/s 154(3) comes into play?

By plain reading of S.154 it is unambiguous that when a person is aggrieved by non-registration of FIR by the concerned police officer of a police station, the CrPC provides the aggrieved person a remedy under S.154(3), whereby, he can approach the DCP/Supt. of Police (competent officers) praying for registration of FIR which is mandatory as per S.154(1), if the offense is cognisable. 

The remedy provided u/s 154(3) rendered redundant?

However, what has become almost customary and routine is that the applications filed u/s 154(3) before the competent officers by the aggrieved person remains undecided, an eerie silence follows the application. Also, any application by a person aggrieved by non – registration of an FIR is deemed to be an application warranting exercise of power u/s 154(3). Mere omission to mention application u/s 154(3) does not make the application not requiring an order in writing because the provision defines and provides for the exercise of power independent of the format of application.

The remedy u/s 154 (3) is undeniably being rendered redundant by the officers competent to act under the said section, the consequences for the complainant, resulting from this silence can be disastrous or even lethal. The constitutional safeguards are thus buried deep and die not just of suffocation but because of the grave injustice. What brings one to this conclusion? Let’s try to answer it.

Interpreting guidelines of the Apex Court in terms of S.154(3)

The judgement by the constitution bench of the Hon’ble Supreme Court in Lalita Kumari vs. Govt. of UP & Ors. is a landmark judgement. This judgement has settled questions pertaining to S.154 of CrPC and more importantly has provided guidelines to be followed in setting the criminal law in motion.

What were the questions answered by the constitutional bench?

Para 22 of the Lalita Kumari judgement states the questions before the constitutional bench which reads as follows,

‘22) The issues before the Constitution Bench of this Court arise out of two main conflicting areas of concern, viz., 

(i) Whether the immediate non­-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and 

(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused.’

Lot has been written about the said judgement, however, the present discussion intends to point out specifically how S.154(3), an effective remedy has been rendered redundant despite the set guidelines. Is the judgement silent on the manner in which the provision u/s 154(3) is made functional/operational? The answer is ‘NO’, all that needed to be delineated and declared is done by the Hon’ble Supreme Court through this judgement.

The guidelines of the Hon’ble Supreme Court as set out in the judgement reads as follows,

‘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 offence and no preliminary inquiry is permissible in such a situation. 

ii) 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. 

iii) If the inquiry discloses the commission of a cognizable offence, 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 offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 

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 offences 

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 7 days. 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 offences, 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.’

What is understood by the guidelines?

If the offence falls in any of the four categories of cognisable offences identified in the judgement, registration of an FIR may not be considered mandatory as per S.154(1) and the police officer is empowered to conduct a preregistration preliminary inquiry (PPI) in the manner specified before registering the FIR. The manner and time period for the preregistration preliminary inquiry has been specified in the guidelines. 

Therefore, if the police officer identifies the offence as falling under the category warranting a PPI then it becomes mandatory for him to provide the PPI report within seven days to the complainant. The report should reflect the reasons and manner of application of mind for non – registration of the FIR is obvious. The guidelines have totally undeciphered the true meaning and purpose of the provisions u/s 154 with the additional safeguard against frivolous and non – cognisable complaints.

When to approach the competent officers u/s 154(3)?

The police officer has to either register an FIR or otherwise provide a PPI report to the complainant after following the procedure as mandated by the guidelines. In case of non – registration of the FIR without a PPI report or with a PPI report, the aggrieved complainant can approach the competent officers as per S.154(3).

Options before the competent officer in exercise of powers u/s 154(3)

The guidelines make it amply clear that the powers under 154(3) endowed on the competent police officers are statutory administrative / quasi-judicial powers. If the FIR is not registered and no PPI report is provided then the only option before the competent officer is to order the registration of the FIR or seek the PPI report. The competent officer is also duty bound to take cognisance of not providing a PPI report and order for necessary departmental action against the concerned police officer for dereliction of duty. Not only that the section also provides powers to the competent officers to themselves investigate into the matter or direct an investigation by a subordinate officer also deriving powers of an officer in charge of a police station. Question is, are these powers exercised?

Do the guidelines decipher the manner of exercise of power u/s 154(3) by the competent officer?

The law with respect to the exercise of administrative and quasi-judicial powers is well settled and the competent officers are duty bound to put down their application of mind or exercise of discretion in writing with reasons recorded. In the case where the PPI report is challenged on any viable grounds, the matter before the competent officers clearly becomes a quasi-judicial matter and even otherwise the requirement of a written order with reasons is indispensable as the law is well settled by the Hon’ble SC in these matters. The competent officer if concurs with the findings of the PPI can put it in writing in his order as the law does not provide or approve of any other mode of exercise of powers apart from an order/communication in writing. Para 84 of the Lalita Kumari judgement also provides clearly that all actions of the police need to be documented and therefore the requirement of an order in writing becomes indispensable. Para 84 of the judgement answers this question, which reads as follows,

‘84) Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police etc., are provided to be written and documented. For example, in case of arrest under Section 41(1)(b) of the Code, arrest memo along with the grounds has to be in writing mandatorily; under Section 55 of the Code, if an officer is deputed to make an arrest, then the superior officer has to write down and record the offence etc., for which the person is to be arrested; under Section 91 of the Code, a written order has to be passed by the concerned officer to seek documents; under Section 160 of the Code, a written notice has to be issued to the witness so that he can be called for recording of his/her statement, seizure memo/panchnama has to be drawn for every article seized etc.’

What is notable that the provision requires the aggrieved person to give his grievance in writing. So there is no room whatsoever to assume or interpret that the competent officers u/s 154(3) are not required to issue written orders in exercise of this power.

The ideal vs the normal

What is normally seen is that when there is a refusal to register an FIR for lack of any cognisability, the concerned police officer does not conduct any PPI. The refusal to register the offence, thus, is arbitrary in the absence of a PPI report. When the matter is taken before the competent officers u/s 154(3), there is an omission of exercise of powers by silence or the competent officers generally convey orally to the complainant that how there is no cognisability and that the complainant should approach the Magistrate u/s 156 of the CrPC. What should be an order in writing in exercise of a statutory power is reduced to a mere formality, not to mention in clear contempt of the Hon’ble Supreme Court guidelines. A right thus is trampled as a statutory safeguard and a remedy is rendered useless.

Effect of the omissions

The omission to exercise jurisdiction under section 154(3) by the competent police officers, through silence, is sheer violation of the fundamental right to justice. What is the effect? It leaves no check on the misuse of discretion by the police officers duty-bound to register an FIR in a cognisable offence. The absence of any check and balance mechanism only means a green signal for corruption and unfettered power to the police officer at the station. The omission by the competent police officers to exercise jurisdiction under 154(3) is nothing but preventing the criminal law to take its course. It also raises the question as to what gives the competent police officers the confidence to blatantly violate the guidelines of the Apex Court. It raises a question mark on the rule of law.

If the lower rung officers are confident of the fact that there would be no action by the competent officers under 154(3) it can lead to unchecked abuse of power, unfettered power, the colourable exercise of power, apathy, disregard for well-settled law and a license to corruption. Not to mention the harassment of the victim or the first informant, thus, leading to gross injustice and at times may lead to more crime. Despite the clear guidelines set in the Lalita Kumari judgement, the competent officers u/s 154(3) continue to omit the exercise of powers/jurisdiction by remaining silent on the applications/complaints of the aggrieved first informant/victim.

As far as the State of Maharashtra is concerned, subsequent to the Lalita Kumari judgement, the DGP, Maharashtra, has issued a circular acknowledging the Lalita Kumari guidelines and making it mandatory for all police officers of the State to follow these guidelines. 

Consequence of the eerie silence by competent police officers

Rendering section 154(3) redundant only means, 

delay/omission in setting the criminal law in motion;

possibility of destruction of evidence;

possibility of influencing witnesses to the crime;

victimisation of the first informer/victim;

promoting corruption;

increasing criminal litigation through private complaints;

compelling the complainant to approach the magistrate u/s 156 without exhausting the remedy u/s 154(3);

rendering the police station unaccountable and above the law;

that the arbitrary actions of the police officers can go unnoticed with no scope for a reprimand;

social unrest;

restlessness in society;

obfuscation of the rule of law.

Point of view

The magistrates if make the utilisation of the remedy u/s 154 (3) mandatory by seeking production of orders u/s 154(3) before giving orders u/s 156 can easily check this unfettered power of the police. The remedy provided of CrPC 154(3) renders the police machinery/administration accountable and omission to exercise powers under the said provision means sheer unaccountability of policing. The magistrates can also take cognisance of the omission of an officer to provide a PPI report, wherever required, as mandated by the guidelines.

The grey area

S.154(3) of CrPC does not provide for the time period within which the competent officers should dispose of the matter or act in the matter before them. The Right to Information 2005 provides an appellate procedure, wherein, the time period given to the Appellate officer for disposing the first appeal is 30 days which can be extended till 45 days with reasons recorded for delay. The aggrieved person has the right to receive information, a statutory right, regarding his information/complaint (of cognisable offence) within a period of 30 days and therefore in consideration of this right it will be reasonable to assume that the competent officers should decide the matter u/s 154(3) within a period of 30 days extendable to 45 days as the right to information cannot be alienated or rendered ineffective for default of statutory powers under any other law.

Conclusion

The competent police officers are bound to give an order in writing in exercise of powers u/s 154(3) of CrPC and as mandated through the guidelines of the Hon’ble Supreme Court. Only then the concerned police officer will be compelled to either register and FIR or conduct a preregistration preliminary inquiry report as per laid down procedure. This check will ensure that there is no abuse of power and no rights are trampled upon by sheer arbitrariness. The bottom line is any application of mind or use of discretion by any statutory authority mandates it to record the application of mind in writing and any omission to do so is nothing else but dereliction of duty warranting action. Not to mention in a given period of time.

Lack of political and administrative will to enforce the mandatory guidelines given by the Hon’ble SC is a challenge to the rule of law and the hallowed Constitution of India? A simple order in writing can resolve violations of fundamental rights and human rights, but will it ever be so? The situation reminds us of the quote, ‘the worst form of injustice is pretended justice’.

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