Complaint, Preliminary Enquiry and FIR or Regular Case especially re Public Servants

Complaint, Preliminary Enquiry and FIR or Regular Case especially re Public Servants 

1). The Constitution Bench of the Supreme Court in the case of Lalita Kumari vs Govt. Of  U.P. &  Ors., WP (Criminal) No. 68 of 2008 (DOD 12 November, 2013) held thus:

i) Registration of FIR is mandatory under Section 154 of the Code of Criminal Procedure, 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.

2. The chapter IX of the crime manual of the CBI also permits some kind of preliminary inquiry before registering the FIR inter alia against public servants in corruption cases. The ACB rules of various states also provide for the same.

3. Complaint in a corruption case against a public servant to CBI/ACB/Police is generally followed by PE (Preliminary Enquiry). And registration of FIR or Regular Case follows PE report. If PE does not find any prima facie incriminating material against a person, such person is not ordinarily arraigned as accused in the FIR. Otherwise, the very rationale of conducting PE before registering a FIR in such cases will be rendered superfluous and nugatory.