Supreme Court Mandates Preliminary Inquiry Before FIR On Certain Offences Related To Speech & Expressions

 At this stage, we may refer to Clause (a) of Article 51-A of the Constitution, which reads thus:

"51-A. Fundamental duties.-It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

The police officers must abide by the Constitution and respect its ideals. The philosophy of the Constitution and its ideals can be found in the preamble itself. The preamble lays down that the people of India have solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure all its citizens liberty of thought, expression, belief, faith and worship. Therefore, liberty of thoughts and expression is one of the ideals of our Constitution. Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. Moreover, the police officers being citizens, are bound to abide by the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens. Clause (2) of Article 19 of the Constitution carves out an exception to the fundamental right guaranteed under sub- Clause (a) of Clause (1) of Article 19. If there is a law covered by Clause (2), its operation remains unaffected by sub- Clause (a) of Clause (1). We must remember that laws covered by the Clause (2) are protected by way of an exception provided they impose a reasonable restriction. Article 19(2) is an exception to the freedom enumerated Under Article 19(1)(a). The reasonable restrictions provided for in Article 19(2) must remain reasonable and not fanciful and oppressive. Article 19(2) cannot be allowed to overshadow the substantive rights Under Article 19(1), including the right to freedom of speech and expression. Therefore, when an allegation is of the commission of an offence covered by the law referred to in Clause (2) of Article 19, if Sub-section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the Accused. This will ensure that the fundamental rights guaranteed under Sub-clause (a) of Clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in Sub-section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry. Therefore, when the commission of cognizable offences is alleged, where punishment is for imprisonment up to 7 years, which is based on spoken or written words, it will always be appropriate to exercise the option Under Sub-section (3) of Section 173 and conduct a preliminary inquiry to ascertain whether there exists a prima facie case to proceed. If an option Under Sub-section (3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right Under Article 19(1)(a) even though Clause (2) of Article 19 is not attracted. If, in such cases, the option Under Sub-section (3) of Section 173 is not exercised, it will defeat the very object of incorporating Sub-section (3) of Section 173 of the BNSS and will also defeat the obligation of the police Under Article 51-A(a). {Para 29}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1545 of 2025

Decided On: 28.03.2025

Imran Pratapgadhi Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/0408/2025,2025 INSC 410.

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Whether disciplinary authority can rely on statements of witnesses recorded in preliminary enquiry if enquiry officer has not permitted delinquent to cross-examine them?

In the aforesaid backdrop, we have to consider the most relevant issue involved in this case. Admittedly, the Enquiry Officer, the High Court on Administrative side as well on Judicial side, had placed a very heavy reliance on the statement made by Shri C.B. Gajjar, Advocate, Mr. G.G. Jani, complainant and that of Shri P.K. Pancholi, Advocate, in the preliminary inquiry before the Vigilance Officer. Therefore, the question does arise as to whether it was permissible for either of them to take into consideration their statements recorded in the preliminary inquiry, which had been held behind the back of the Appellant, and for which she had no opportunity to cross-examine either of them.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2668 of 2005

Decided On: 18.03.2013

 Nirmala J. Jhala Vs.  State of Gujarat and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and F.M. Ibrahim Kalifulla, JJ.

Author: B.S. Chauhan, J.

Citation:MANU/SC/0257/2013,AIR 2013 SC 1513

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How to prove the statement of delinquent recorded in preliminary enquiry?

Learned counsel for the State argued that the petitioner is not entitled to any relief only on the technical ground of non-supply of documents unless it is shown as to what prejudice was caused to the petitioner in his defence. It is contended that the petitioner, during preliminary enquiry, had given a statement on 7.9.1991 in which he admitted that he had interpolated the official records in order to mislead the authority and created an evidence of felling of trees which were otherwise illegally felled and transported away from the forest area. In his reply to charge sheet, the petitioner nowhere stated that he had never given any such statement of admission of his gilt on 7.9.1991 and he only gave evasive denial of charges against him. It is further submitted that all relevant documents as stated in Sr. No. 1 of his application dated 30.4.1992 were supplied to him and remaining documents demanded by the petitioner were not relevant to the charges because the charge No. 1 was not found proved against the petitioner and charge No. 2 was found proved on the basis of petitioner's own statement dated 7.9.1991 recorded during preliminary enquiry prior to issuance of charge sheet, which the petitioner did not dispute but only sought to justify at a later stage and not at the first instance while submitting his reply to the charge sheet. Once the petitioner had admitted having interpolated the records, the other ground of violation of principle of nature justice would not come to his aid and the enquiry cannot be said to be vitiated.

 A perusal of the enquiry report and the order of the Disciplinary Authority would at once reveal that the statement of Kishan Lal Sonwani, Kamta Ram Sahu as also pre-recorded statement of the petitioner himself was made a basis to sustain the charge No. 2 proved against him that he, acting in concert with Cherpa Gopal and Kishal Lal Sonwani, tampered the official record. As a matter of fact, the so called pre-recorded statement of the petitioner was used as an admission of the guilt by the petitioner. But this document was never supplied to the petitioner despite demand. This was the most crucial documents because the Enquiry Officer as well as the Disciplinary Authority both have heavily relied upon this document to hold charge No. 2 proved against the petitioner. The petitioner in his memo of appeal and even before this Court has taken a categoric stand that he was coerced to put signature on certain documents. Whether or not the petitioner would not been able to make out his defence, on this aspect, is one thing, but it can certainly be concluded that non-supply of this crucial documents seriously prejudiced the petitioner. It would not out of place to mention here that so called statement of the petitioner was not even proved by examining the officer who is alleged to have recorded the said statement. Therefore, serious prejudice on account of non-supply of statement is writ large on the fact of it.{Para 24}

 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

WPS No. 935 of 2005

Decided On: 31.10.2017

Dhanpati Barik Vs. State of Madhya Pradesh and Ors.

Hon'ble Judges/Coram:

Manindra Mohan Shrivastava, J.

Dated:MANU/CG/0595/2017

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