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
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.
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.
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