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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REF. 1/2021
COURT ON ITS OWN MOTION ..... Petitioner
versus
STATE ..... Respondent
Through: Ms. Nandita Rao, ASC (Criminal)
for State.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
% 28.03.2022
The present criminal reference petition under Section 395 of Code
of Criminal Procedure, 1973, raises the following questions of law for
adjudication by this Court:-
“Q1. Whether registration of FIR, if made out otherwise as
per law, can be made conditional upon requirement of
approval from senior police officers?
Q2. Whether Cr. P.C. or any other law for the time being in
force admits such standing orders to be issued as would
override the express statutory provisions as well as
mandates of the courts higher above regarding registration
of FIR by adding a pre-condition for seeking approval from
senior police officers?
Q3. Whether every offence involving a monetory
transaction such as cheating, criminal breach of trust,
forgery etc falls withing the ambit of the definition of
"commercial disputes" as referred to in Lalita Kumari V.
State of U.P. S.L.P.(Crl.) No.5986 of 2006 necessitating
conducting of a preliminary enquiry prior to registration of
FIR and whether such preliminary enquiry includes within
its scope a prerequisite of seeking approval of the higher
police officials before registration of FIR.
CRL.REF. 1/2021 Page 1 of 9
Q4. In case the answers to question no.l, 2 and / or 3 are in
the negative, whether the police officials involved are liable
to be proceeded against for contempt of the mandate
enunciated in Lalita Kumar V. State (supra) and if so, how
would such reference for contempt be routed?”
We have heard Ms. Nandita Rao, learned Additional Standing
Counsel (Criminal) appearing on behalf of the GNCTD, at length.
Our attention has been invited by Ms. Nandita Rao to the decision
of the Constitution Bench in Lalita Kumari Vs.Government of Uttar
Pradesh and Others reported as (2014)2 SCC 1, and in particular
paragraphs 93, 96 and 120 thereof, to urge that the issues of law raised in
the present criminal reference are no longer res-integra.
We, therefore, consider it appropriate to extract the
aforementioned paragraphs, which read as follows:-
“93. The object sought to be achieved by
registering the earliest information as FIR is inter
alia twofold: one, that the criminal process is set
into motion and is well documented from the very
start; and second, that the earliest information
received in relation to the commission of a
cognizable offence is recorded so that there
cannot be any embellishment, etc. later.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
96. The underpinnings of compulsory registration
of FIR is not only to ensure transparency in the
criminal justice-delivery system but also to ensure
“judicial oversight”. Section 157(1) deploys the
word “forthwith”. Thus, any information received
under Section 154(1) or otherwise has to be duly
informed in the form of a report to the Magistrate.
Thus, the commission of a cognizable offence is
not only brought to the knowledge of the
CRL.REF. 1/2021 Page 2 of 9
investigating agency but also to the subordinate
judiciary.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
120. In view of the aforesaid discussion, we hold:
120.1. The 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.
120.2. 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.
120.3. If the enquiry 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.
120.4. 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.
120.5. 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.
CRL.REF. 1/2021 Page 3 of 9
120.6. 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.
120.7. 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.
120.8. 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.”
A conjoint reading of the paragraphs extracted hereinabove, leave
no manner of doubt that registration of an FIR is compulsory forthwith,
CRL.REF. 1/2021 Page 4 of 9
not only to ensure transparency in the criminal justice-delivery system,
but also to maintain “judicial oversight”
Having said that, however, the dictum enunciated by the Hon’ble
Supreme Court in Lalita Kumari (Supra) also carves out an exception to
the above principle by holding that a preliminary inquiry may be
conducted by the police authorities concerned – not to verify the veracity
or otherwise of the information received – but to ascertain whether the
information received reveals the commission of a cognizable offence.
The Constitution Bench goes on to elaborate the type of cases in which a
preliminary inquiry is required to be conducted by holding that, these
may include the category of cases such as: (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.
Needless to state that, the Hon’ble Supreme Court has clearly and
unequivocally observed that the aforesaid category of cases, where a
preliminary inquiry may be made are only illustrative and not exhaustive
of all conditions which may warrant a preliminary inquiry.
A plain reading of the dictum of the Hon’ble Apex court in Lalita
Kumari (Supra) as well as the settled legal position qua registration of
FIR under Section 154 Code of Criminal Procedure, 1973, in cognizable
offences leaves us with not even an iota of doubt that police authorities
are duty-bound to register an FIR, no sooner than they receive credible
CRL.REF. 1/2021 Page 5 of 9
information about the commission of a cognizable offence within their
territorial jurisdiction.
The other issue that requires our consideration is the question as to
whether the police authorities are justified in law, in issuing
departmental instructions qua the oversight, to be carried out by a senior
Police Officer of the rank of DCP, as has been done vide Standing Order
No. 173/2021 dated 21.01.2021- Procedure/ Guidelines for enquiry of
complaints and investigation of cases related to economic offences -
which is the subject-matter of the instant reference.
In this behalf, Ms. Nandita Rao, learned Additional Standing
Counsel has invited our attention to the decision of the Hon’ble Supreme
Court in Joginder Kumar Vs. State of U.P and Others reported as AIR
1994 SC 1349, and in particular paragraphs 23 and 24 thereof, to urge
that the said issue is already covered, by the dictum of the Hon’ble
Supreme Court.
For the sake of completeness, the paragraphs relied upon are
extracted in extenso, which read as follows:-
“23. In India, Third Report of the National Police
Commission at page 32 also suggested:
“….An arrest during the investigation of a
cognizable case may be considered justified in
one or other of the following circumstances:-
(i) The case involves a grave offence like
murder, dacoity, robbery, rape etc., and it is
necessary to arrest the accused and bring his
movements under restraint to infuse confidence
among the terror stricken victims.
(ii) The accused is likely to abscond and
evade the processes of law.
CRL.REF. 1/2021 Page 6 of 9
(iii) The accused is given to violent behavior
and is likely to commit further offences unless his
movements are brought under restraint.
(iv) The accused is a habitual offender and
unless kept in custody he is likely to commit
similar offences again.
It would be desirable to insist through
departmental instructions that a police officer
making an arrest should also record in the case
diary the reasons for making the arrest, thereby
clarifying his conformity to the specified
guidelines…….”
24. The above guidelines are merely the incidents
of personal liberty guaranteed under the
Constitution of India. No arrest can be made
because it is lawful for the Police Officer to do so.
The existence of the power to arrest is one thing.
The justification for the exercise of it is quite
another. The Police Officer must be able to justify
the arrest apart from his power to do so. Arrest
and detention in police lock-up of a person can
cause incalculable harm to the reputation and
self-esteem of a person. No arrest can be made in
a routine manner on a mere allegation of
commission of an offence made against a person.
It would be prudent for a Police Officer in the
interest of protection of the constitutional rights
of a citizen and perhaps in his own interest that
no arrest should be made without a reasonable
satisfaction reached after some investigation as
to the genuineness and bona fides of a complaint
and a reasonable belief both as to the person’s
complicity and even so as to the need to effect
arrest. Denying a person of his liberty is a serious
matter. The recommendations of the Police
CRL.REF. 1/2021 Page 7 of 9
Commission merely reflect the constitutional
concomitants of the fundamental right to a
personal liberty and freedom. A person is not
liable to arrest merely on the suspicion of
complicity in an offence. There must be some
reasonable justification in the opinion of the
officer effecting the arrest that such arrest is
necessary and justified. Except in heinous
offences, an arrest must be avoided if a police
officer issues notice to person to attend the
Station House and not to leave Station without
permission would do.”
A plain reading of the above-extracted paragraphs leaves no
manner of doubt that, it is desirable to understand through departmental
instructions that the Police are at liberty to issue guidelines, so as to
safeguard personal liberty guaranteed under the Constitution of India.
The next issue flagged in the instant reference is that, whether
every disputed monetary transaction tantamounts to commercial dispute
and commends for a preliminary inquiry by the police authorities prior to
registration of FIR in accordance with the exception carved out in the
decision of Lalita Kumari (supra), to which the answer is in negative.
Commercial disputes involving monetary transaction arising in the
ordinary course of business cannot be by default treated as criminal
offence requiring registration of FIR, rather such disputes needs to be
resolved by an efficacious remedy available as per statutory law in civil
court rather than converting a dispute of civil nature involving tortious
liability into the criminal liability in the garb of labelling it as
‘commercial dispute’. Needless to state, that no straight-jacket formula
can be applicable to every commercial dispute, and invocation and
CRL.REF. 1/2021 Page 8 of 9
involvement of criminal liability and fraudulent element, need to be
ascertained depending upon the facts and circumstance of each case.
In view of the detailed discussion in the foregoing paragraphs, we
answer the issues that arise for consideration in the present Reference in
the affirmative.
No further issues arise for consideration in the present reference.
The above criminal reference is answered and disposed of
accordingly.
A copy of this order be sent to concerned District Judge, South-
West, Dwarka, New Delhi-110075, for information and compliance.
SIDDHARTH MRIDUL, J.
RAJNISH BHATNAGAR, J.
MARCH 28, 2022/at
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CRL.REF. 1/2021 Page 9 of 9
