Sunday, 27 May 2018

Whether prosecution can be quashed on ground that entry in respect of FIR is not taken in General Diary?

 In light of the discussion above, the absence of entries in the
General Diary concerning the preliminary enquiry would not
be  per se  illegal. Our attention is not drawn to any bar
under any provision of CrPC barring investigating authority
to investigate into matter, which may for some justifiable
ground, not found to have been entered in the General Diary
right after receiving the Confidential Information. It may not
be   out   of   context   to   mention   that   nothing   found   in   the
paragraph   120.8  of   the  Lalitha   Kumari   Case  (Supra),
justifies   the   conclusion   reached   by   the   High   Court   by
placing   a   skewed   and   literal   reading   of   the   conclusions
reached   by   the   Bench   therein.   It   is   well   settled   that
judgments are not legislations, they have to be read in the
context and background discussions [refer Smt. Kesar Devi
v. Union of India & Ors., (2003) 7 SCC 427]. 
18. As the concept of maintaining General Diary has its origin
under the Section 44 of Police Act of 1861 as applicable to
States, which makes it an obligation for the concerned Police
Officer   to   maintain   a   General   Diary,   but   such   non maintenance
 per   se  may   not   be   rendering   the   whole
prosecution   illegal.   However,   on   the   other   hand,   we   are
aware of the fact that such non­maintenance of General
Diary may have consequences on the merits of the case,
which is a matter of trial. Moreover, we are also aware of the
fact that the explanation of the genesis of a criminal case, in
some   cases,   plays   an   important   role   in   establishing   the
prosecution’s   case.   With   this   background   discussion   we
must observe that the binding conclusions reached in the
paragraph  120.8  of  Lalitha  Kumari  Case  (Supra) is an
obligation of best efforts  for the concerned officer to record
all   events   concerning   an   enquiry.   If   the   Officer   has   not
recorded, then it is for the trial court to weigh the effect of
the same for reasons provided therein. A court under a writ
jurisdiction or under the inherent jurisdiction of the High
Court is ill equipped to answer such questions of facts. The
treatment provided by the High Court in converting a mixed
question of law and fact concerning the merits of the case,
into a pure question of law may not be proper in light of
settled jurisprudence. 
19. Our conclusion herein is strengthened by the fact that CrPC
itself has differentiated between irregularity and illegality.
The obligation of maintenance of General Diary is part of
course of conduct of the concerned officer, which may not
itself have any bearing on the criminal trial unless some
grave prejudice going to the root of matter is shown to exist
at   the   time   of   the   trial.1
  Conspicuous   absence   of   any
provision under CrPC concerning the omissions and errors
during  investigation  also   bolsters  the  conclusion  reached
herein.2

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO.775/2018

State by Lokayuktha Police Vs  H. Srinivas  
  Dated:MAY 18, 2018.

    N. V. RAMANA., J.


1. Leave granted.
2. These appeals are filed against the common order passed by
the High Court of Karnataka at Bengaluru, in Writ Petition
No   (s).   21782,   38450,   38451   and   38498   of   2014,   and
Criminal Petition No. 7166 of 2015, wherein the High Court
has quashed the proceedings instituted against the accused
respondents.
3. There are two separate and distinct crimes alleged to have
been committed by the different individuals. Therefore, we
would like to note both set of facts so as to understand the
issue at hand.
4. The   first   set   of   facts   pertain   to   Crime   No.   103/2013
registered under Section 13(1)(e) read with Section 13(2) of
the Prevention of Corruption Act, 1988 [PC Act] against one
H. Srinivas (respondent in SLP (Crl.) No. 5391/2017). On
25.10.2013,   Police   Inspector,   Karnataka   Lokayuktha,
Davanagere Division, submitted a Source Report against the
Respondent/accused,   who   was   working   as   Assistant
Engineer, Jagaluru Pattana Panchayat, Davangere District,
for   having   acquired   disproportionate   assets   against   his
known source of income. It may be relevant to extract a part
of the source report as underIt
is hereby stated that AE Sri. H. Srinivasa,
Assistant   Engineer,   Town   Panchayath,
Jagaluru   has   earned   only   Rs.   17,25,000
from known source and his disproportionate
asset is Rs. 24,54,300­00 and the Percentage
of   Disproportionate   asset   is   142.27%.
2Presently   AE   residing   at   Jagaluru   Town,
J.C.R. Extension in the first floor of Khasim
Miyya’s   (owner   of   Grocery)   house.  This
source report is submitted in order to file
out more details about additional property
details,   gold,   silver,   and   lockers   in   the
person’s house, (2) and Assistant Engineer
office, Town Panchayath, Jagaluru and (3)
Smt.   Gowramma’s   sister  Smt.   Umadevi’s
house at J.C.R. Extension.
(emphasis supplied)
It is said that the aforesaid report was prepared basing on a
secret   information,   received   from   an   informant.   The
Superintendent of Police endorsed taking action against the
respondent   under   Section   13(1)(e),   13(2)   of   PC   Act.
Thereafter, the Deputy Superintendent of Police, Karnataka
Lokayuktha, Davanagere registered Crime No. 103/2013
u/Sec.   13(1)(e)  r/w.  Section   13(2)   of  the   PC   Act,  dated
29.10.2013, against the Respondent herein. In the column
No. 3(d) of the FIR, General Diary reference entry No and
time is noted as ’04 11:30 AM’. The State herein has not
disputed the fact that there was no entry in the General
Diary, during the conduction of the preliminary enquiry. It
may not be out of context to note that after completion of
the investigation, a Final Report was prepared and filed
3before the appropriate court. Aggrieved by the manner in
which   the   police   have   conducted   the   investigation,   the
respondent herein, filed a Criminal Petition No. 7166 of
2015, before the Karnataka High Court.
5. The   second   set   of   facts   reveals   that   on   21.07.2011,   the
Karnataka   Lokayuktha   Police,   basing   on   a   confidential
information about amassing of the disproportionate assets
by one C. Mrutyunjayaswamy (respondent in SLP (Crl.) No.
5606/2017), who was working as Secretary to Government,
PWD, Vikas Saudha, Bengaluru, prepared a Source Report
recommending investigation into the assets of the aforesaid
accused. Superintendent of Police, Karnataka Lokayuktha,
City   Division,   Bengaluru   by   Order   No.
LOK/INV(G)SP/CITY/01/2011, dated 21/07/2011 ordered
his deputy to register a FIR. On the same date, a FIR being
Crime   No.   28/2011   was   registered   accordingly.   On   22­
23.07.2011,   the   investigating   team   searched   the   office,
residence, bank lockers and other places of the contesting
respondents in this appeal [arising  out  of SLP   (Crl.)   No.
5606­09/2017]. On 07.05.2013, final Report was prepared
4after   completion   of   the   investigation,   wherein
disproportionate assets were observed. Being aggrieved C.
Mruthyunjayaswamy filed a Writ Petition No. 21782 of 2014,
before the High Court of Karnataka, seeking quashing of the
preliminary investigation report dated 21.07.2011 submitted
by the Police Inspector of Lokayuktha and consequently the
FIR dated 21.07.2011 filed by the deputy Superintendent of
Police,   Karnataka   Lokayuktha   Police   in   Crime   No.   28   of
2011 and all the subsequent proceedings on the file of the
XXIII Addl. City Civil and Special Judge, Bangalore (CCH No.
23). Dr. H.M. Hema (wife of C. Mrutyunjayaswamy) filed a
writ petition being W.P. No. 38450 of 2014, seeking  inter
alia  quashing   of   the   seizure   proceedings   in   respect   of
passbooks and also freezing of the accounts etc. One Smt.
Sowbagyamma   (mother­in­law   of   C.   Mrutyunjayaswamy)
filed W.P. No. 38451 of 2014 seeking inter alia quashing of
the seizure proceedings in respect of passbooks and against
freezing   of   certain   bank   accounts.   One   H.M.   Prabhu
(brother­in­law   of   C.   Mrutyunjayaswamy)   filed   W.P.   No.
38498 of 2014 seeking  inter alia  quashing of the seizure
proceedings. 
56. The   main   contention   raised   by   the   respondents   herein,
before the High Court as well as this Court, is that the
preliminary enquiry and the consequent Source Report filed
by the Officer were done without entering the same in the
General Diary, which according to them was mandatory and
non­compliance of the same resulted in vitiating the entire
proceeding.
7. The High Court clubbed all the cases as discussed above
and framed common questions of law, which area.
Whether there could be a preliminary enquiry conducted
by the Police as to whether a cognizable offence had been
committed, even in the absence of a complaint, or even
prior to the registration of an FIR?
b. Whether Complainant could also act as the investigating
Officer?
c. Whether an illegal search and seizure would be fatal to
the case of the prosecution?
8. By the impugned order the High Court quashed the FIR on
the main grounds as underi.
That the preliminary report conducted by the police
was   done   without   any   entries   made   in   the   Station
Diary­ as to the conduction of the preliminary enquiry.
ii. Reliance was placed on the Case of Lalitha Kumari,
(2014) 2 SCC 1, paragraph 120.7 and 120.8, to come to
6a conclusion that it is mandatory to make entries in
the Station Diary and failure of the same would be fatal
for the prosecution.
iii. That   any   proceedings   conducted   after   such   alleged
illegality would be rendered non­est in the eyes of law
and consequently are liable to be quashed accordingly.
9. Aggrieved   by   the   judgment   of   the   High   Court,   which
prematurely   terminated   the   proceedings   at   the   threshold
without allowing a full­fledged trial, the State of Karnataka
and other authorities are in appeal before this Court.
10. Mr. Devadatt Kamat, learned AAG, appearing on behalf of
the State has contended thati.
That   the   impugned   order   is   completely   cryptic   and
without reasoning.
ii. That the conclusion reached in Para 120.8 of Lalitha
Kumari Case  (Supra), needs to be read in context of
earlier discussion, wherein it is clear that for lodging
an   FIR,   entry   in   the   General   Diary   is   not   a   precondition.
iii. Defect/irregularity   in   investigation   cannot   result   in
quashing of the proceedings.
iv. That the Lodging of the FIR is not a precondition for
initiation of criminal proceedings.
v. He   has   placed   reliance   on   catena   of   judgments,
wherein   this   Court   has   stamped   its   approval   for
conduction of such preliminary enquiry in corruption
cases, for safeguarding the interest of the government
servants from unwarranted prosecutions. 
vi. The consideration provided by the High Court in the
Criminal   Petition   No.   7166   of   2015   (concerning   the
case of H. Srinivas) is highly insufficient and would
clearly reflect non­application of mind.
11. On the other hand, Mr. Siddharth Luthra, learned senior
counsel appearing on behalf of respondent (H.   Srinivas),
has   drawn   our   attention   to   the   fact   that   the  Lalitha
Kumari   Case  (Supra), was a declaratory judgment. This
Court has time and again emphasised the significance of
Station   Diary   entry   for   conduction   of   the   preliminary
enquiry   thereby   requiring   the   strict   adherence   to   the
conclusions reached in the Lalitha Kumari Case (Supra).
He argued that in the present case, the illegality goes to the
root of the matter thereby mandating the quashing of the
FIR on a pure question of law. We may note that the other
respondents have not advanced any arguments concerning
the third issue.
12. Heard   the   arguments   advanced   by   the   learned   counsels
appearing on behalf of the parties and perused the material
8available on record. At the outset, we are in agreement with
the contention of the appellant­State that the consideration
provided to the  Criminal  Petition  No.  7166  of  2015, is
highly   insufficient,   which   in   other   cases   may   have   itself
mandated a remand for non­application of facts. We refrain
from taking such an approach, as lot of time has already
been   wasted   in   unnecessary   litigation   and   therefore,   we
deem it appropriate that we put a quietus this issue herein
without   remanding   the   aforesaid   case   back   to   the   High
Court for proper consideration.
13. As both sides have placed excessive reliance on the case of
Lalitha Kumari Case (Supra), it would be appropriate for
us to discuss certain nuances of this case in detail. This
Court   therein,   having   noticed   certain   contradictory
judgments concerning the interpretation of Section 154 of
CrPC, referred the matter to a larger Bench for providing a
mechanism under the criminal justice system imbued with
due process.
14. In   the   aforesaid   case,   this   Court   while   repelling   the
contention by the learned ASG appearing for the State of
Chhattisgarh that recording of the first information under
Section 154 in the “book” is subsequent to the entry in the
General Diary, held that the concept of General Diary does
not flow from the Section 154 of CrPC, 1973 and the same
conclusion would be apparent from the departure made in
the   present   Section   154   of   CrPC   when   compared   with
Section 139 of the Code of Criminal Procedure, 1861. It may
be relevant to extract some paragraphs, which may have
bearing on the case concerned­
64. The   General   Diary   is   a   record   of   all
important   transactions/events   taking   place
in a police station, including departure and
arrival of police staff, handing over or taking
over of charge, arrest of a person, details of
law and order duties, visit of senior officers,
etc.   It   is   in   this   context   that   gist   or
substance of each FIR being registered in the
police   station   is   also   mentioned   in   the
General Diary since registration of FIR also
happens to be a very important event in the
police   station.   Since   General   Diary   is   a
record that is maintained chronologically on
day ­to ­day basis (on each day, starting with
new   number   1),   the   General   Diary   entry
reference is also mentioned simultaneously
in   the   FIR   book,   while   FIR   number   is
mentioned in the General Diary entry since
both of these are prepared simultaneously.
1065. It is relevant to point out that FIR book
is maintained with its number given on an
annual basis. This means that each FIR has
a unique annual number given to it. This is
on similar lines as the case numbers given in
courts. Due to this reason, it is possible to
keep   a   strict   control   and   track   over   the
registration of FIRs by the supervisory police
officers   and   by   the   courts,   wherever
necessary. Copy of each FIR is sent to the
superior   officers   and   to   the   Judicial
Magistrate concerned.
66. On   the   other   hand,   General   Diary
contains a huge number of other details of
the proceedings of each day. Copy of General
Diary is not sent to the Judicial Magistrate
having   jurisdiction   over   the   police   station,
though its copy is sent to a superior police
officer. Thus, it is not possible to keep strict
control of each and every FIR recorded in the
General Diary by the superior police officers
and/or   the   court   in   view   of   enormous
amount  of other details mentioned therein
and the numbers changing every day.
67. The   signature   of   the   complainant   is
obtained in the FIR book as and when the
complaint is given to the police station. On
the other hand, there is no such requirement
of obtaining signature of the complainant in
the General Diary. Moreover, at times, the
complaint given may consist of large number
of pages, in which case it is only the gist of
the complaint which is to be recorded in the
General   Diary   and   not   the   full   complaint.
This does not fit in with the suggestion that
what is recorded in the General Diary should
be   considered   to   be   the
fulfilment/compliance with the requirement
of Section 154 of registration of FIR. In fact,
the usual practice is to record the complete
complaint in the FIR book (or annex it with
the FIR form) but record only about one or
two paragraphs (gist of the information) in
the General Diary.

70. If at all, there is any inconsistency in the
provisions of Section 154 of the Code and
Section   44   of   the   Police   Act,   1861,   with
regard to the fact as to whether the FIR is to
be   registered   in   the   FIR   book   or   in   the
General Diary, the provisions of Section 154
of the Code will prevail and the provisions of
Section 44 of the Police Act, 1861 (or similar
provisions   of   the   respective   corresponding
Police Act or Rules in other respective States)
shall be void to the extent of the repugnancy.
Thus,   FIR   is   to   be   recorded   in   the   FIR
book,  as  mandated  under  Section  154  of
the   Code,   and   it   is  not   correct   to   state
that  information will  be first recorded  in
the   General   Diary   and   only   after
preliminary   inquiry,   if   required,   the
information will be registered as FIR.
(Emphasis supplied)
15. On the aspect of the preliminary enquiry the court discussed
as under­
115. Although,   we,   in   unequivocal   terms,
hold that Section 154 of the Code postulates
the mandatory registration of FIRs on receipt
of all cognizable offences, yet, there may be
instances where preliminary inquiry may be
required owing to the change in genesis and
novelty of crimes with the passage of time.
One   such   instance   is   in   the   case   of
allegations relating to medical negligence on
the   part   of   doctors.   It   will   be   unfair   and
inequitable   to   prosecute   a   medical
professional   only   on   the   basis   of   the
allegations in the complaint.

    117. In the context of offences relating to
corruption, this Court in     P. Sirajuddin [P.
    Sirajuddin     v.     State   of   Madras,   (1970)   1
SCC 595 : 1970 SCC (Cri) 240] expressed
the need for a preliminary inquiry before
proceeding against public servants.
(Emphasis supplied)
16. Thereafter this  Court concluded in the following mannerConclusion/Directions
120. In view of the aforesaid discussion, we
hold:

13120.5. 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.
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   time­bound   and   in   any
14case   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.
(Emphasis supplied)
17. In light of the discussion above, the absence of entries in the
General Diary concerning the preliminary enquiry would not
be  per se  illegal. Our attention is not drawn to any bar
under any provision of CrPC barring investigating authority
to investigate into matter, which may for some justifiable
ground, not found to have been entered in the General Diary
right after receiving the Confidential Information. It may not
be   out   of   context   to   mention   that   nothing   found   in   the
paragraph   120.8  of   the  Lalitha   Kumari   Case  (Supra),
justifies   the   conclusion   reached   by   the   High   Court   by
placing   a   skewed   and   literal   reading   of   the   conclusions
reached   by   the   Bench   therein.   It   is   well   settled   that
judgments are not legislations, they have to be read in the
context and background discussions [refer Smt. Kesar Devi
v. Union of India & Ors., (2003) 7 SCC 427]. 
18. As the concept of maintaining General Diary has its origin
under the Section 44 of Police Act of 1861 as applicable to
States, which makes it an obligation for the concerned Police
Officer   to   maintain   a   General   Diary,   but   such   non maintenance
 per   se  may   not   be   rendering   the   whole
prosecution   illegal.   However,   on   the   other   hand,   we   are
aware of the fact that such non­maintenance of General
Diary may have consequences on the merits of the case,
which is a matter of trial. Moreover, we are also aware of the
fact that the explanation of the genesis of a criminal case, in
some   cases,   plays   an   important   role   in   establishing   the
prosecution’s   case.   With   this   background   discussion   we
must observe that the binding conclusions reached in the
paragraph  120.8  of  Lalitha  Kumari  Case  (Supra) is an
obligation of best efforts  for the concerned officer to record
all   events   concerning   an   enquiry.   If   the   Officer   has   not
recorded, then it is for the trial court to weigh the effect of
the same for reasons provided therein. A court under a writ
jurisdiction or under the inherent jurisdiction of the High
Court is ill equipped to answer such questions of facts. The
treatment provided by the High Court in converting a mixed
question of law and fact concerning the merits of the case,
into a pure question of law may not be proper in light of
settled jurisprudence. 
19. Our conclusion herein is strengthened by the fact that CrPC
itself has differentiated between irregularity and illegality.
The obligation of maintenance of General Diary is part of
course of conduct of the concerned officer, which may not
itself have any bearing on the criminal trial unless some
grave prejudice going to the root of matter is shown to exist
at   the   time   of   the   trial.1
  Conspicuous   absence   of   any
provision under CrPC concerning the omissions and errors
during  investigation  also   bolsters  the  conclusion  reached
herein.2
1 Union of India and Ors. v. T. Nathamuni, (2014) 16 SCC 285
2 Niranjan Singh and Ors. V. State of Uttar Pradesh, AIR 1957 SC 142.
1720. Moreover, the requirement of the preliminary enquiry is well
established   by   judicial   precedents   as   a   check   on
mushrooming false prosecution against public servants by
persons who misuse the process of law for their personal
vengeance. Such preliminary check would be beneficial and
has been continuously approved by catena of judgments of
this Court. [refer to P. Sirajuddin Case, (1970) 1 SCC 595,
Lalitha  Kumari  Case  (Supra)]. In light of the discussion,
we cannot sustain the reasoning provided by the High Court
on this aspect.
21. Therefore, we allow these appeals and, accordingly, set aside
the order of the High Court. Before we part it may be noted
that we have not expressed any views on merits of the case
and the trial court is to proceed expeditiously uninfluenced
by any observations made herein.
       …………......................J.
(N.V. RAMANA)
   ..................................J.
             (S. ABDUL NAZEER)
NEW DELHI,
MAY 18, 2018.

Print Page

No comments:

Post a comment