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TMI Blog2021 (12) TMI 1487X X X X Extracts X X X X X X X X Extracts X X X X ..... t a preliminary enquiry unless it is not shown that immediate registration of FIR would defeat the very purpose of investigation or conducting a preliminary enquiry will be an empty formality. The State has failed to justify the registration of the F.I.Rs without conducting the preliminary enquiry in both the cases - Accordingly, it is directed that the concerned police shall conduct the preliminary enquiry, in both the cases, within a period of three weeks from the date of communication of this order and upon preliminary enquiry if it is found that there exists sufficient grounds to carry out a fullfledged investigation, they shall proceed with the investigation in terms of Section 156 (1) of the Code of Criminal Procedure, 1973. The two F.I.Rs shall be kept in abeyance till conclusion of the preliminary enquiry. Application disposed off. - The Hon ble Justice Kausik Chanda For the petitioner : Mr. Rajdeep Mazumder, Adv., Mr. Pritam Roy, Adv., Ms. Arushi Rathore, Adv. For the opposite party no. 2 : Mr. Kallol Mondal, Adv., Mr. Krishan Ray, Adv., Ms. Amrita Chel, Adv., Mr. Souvik Das, Adv., Ms. Anamitra Banerjee, Adv., Mr. Ayan Bhattacharya, Adv. For the State : Mr. Saswata Gopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing for the petitioners in C.R.R. No. 1534 of 2021 and C.R.R. No. 1383 of 2021, submits that, opposite party no. 2 in C.R.R. No. 1534 of 2021 had left the matrimonial home on July 24, 2020, but she lodged the complaint against the petitioner only on July 20, 2021, and the first information report does not disclose any reason for such delay. The police also on the very first date without conducting any preliminary enquiry registered the F.I.R. in violation of the mandate of Lalita Kumari (supra). 8. Mr. Mazumder, further, submits that the Supreme Court in the judgment reported at (2010) 7 SCC 667 (Preeti Gupta v. State of Jharkhand) has observed that the tendency of implicating the husband and his relatives is very common. The Courts have to be extremely careful and cautious in dealing with the complaints related to matrimonial cases and must take pragmatic realities into consideration. The allegations of the complaint are required to be scrutinised with great care and circumspection. 9. He has placed reliance on the case reported at (2014) 8 SCC 273 (Arnesh Kumar v. State of Bihar) where the Supreme Court noted a phenomenal increase in matrimonial disputes in the country. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 14. The judgment reported at (2021) 5 SCC 469 (Charansingh v. State of Maharashtra) has also been relied upon to argue that if a cognizable offence is disclosed in the F.I.R, it is imperative for the police to initiate an investigation. 15. Mr. Mondal has argued that in the instant case since the F.I.R. discloses the commission of a cognizable offence which has been lodged at the earliest possible opportunity, the same cannot be set aside or quashed and when the investigation has already commenced, the same should be allowed to continue. 16. Mr. Mondal suggests that the use of the word may used in paragraph 120.6 of Lalita Kumari (supra) indicates that it is the discretion of the investigating officer either to lodge a first information report or to conduct a preliminary enquiry. Once the investigation has proceeded the question of preliminary enquiry ceases to exist and there cannot be any looking back. The Court should not quash the investigation by interfering with the discretion exercised by the police in initiating an investigation. 17. Mr. Ayan Bhattacharya, learned advocate appearing for the opposite party no. 2 in C.R.R. No. 1534 of 2021, has submitted before this Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certaining as to whether a cognizable offence has been committed. But if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an F.I.R. forthwith. Whether the information is falsely given or credible is not relevant at the stage of registration of F.I.R., what is to be seen is merely whether the information given ex-facie discloses the commission of a cognizable offence. 23. From the arguments advanced by the respective parties the point of law that falls for consideration is whether in matrimonial offences the investigating agency should conduct a preliminary enquiry before registration of the F.I.R. even if the first information discloses cognizable offence. 24. To answer the issue it is necessary to advert to the directions issued in Lalita Kumari (supra) which read as follows: Conclusion/Directions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary enquiry must also be reflected, as mentioned above. 26. The direction contained in paragraph 120.1 as quoted above makes it clear that it is the duty of the investigating agency to mandatorily register an F.I.R. if the information discloses commission of cognizable offence. An exception to the aforesaid proposition has been carved out in paragraph 120.6 for the cases like matrimonial disputes/family disputes, commercial offences, medical negligences, corruption cases and the cases where there is an abnormal delay in lodging the F.I.R. without giving any proper explanation. 27. The Supreme Court in dealing with the scope of preliminary enquiry in a case under the Prevention of Corruption Act, 1988, reported at (1970) 1 SCC 595 (P. Sirajuddin v. State of Madras) held as follows: 17. .In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The words information received in the said paragraph imply the information received in course of a preliminary enquiry. 30. It is needed to be mentioned that in course of the hearing, this Court on September 6, 2021, passed an order directing the Joint Commissioner of Police (Crime), Kolkata Police to file a report as to whether like some States in the country, the State of West Bengal has issued any circular to follow the mandate of the Lalita Kumari case. In response, a report was filed before this Court on September 14, 2021, disclosing the fact that after the said order dated September 6, 2021, the department of West Bengal Police Directorate, Bhabani Bhavan, Alipore, Kolkata, issued a circular on September 10, 2021. The circular reads as follows: Memo No. 378 /Law Cell Adm/CR-339-08 Dated 10 /09/ 2021. To 1. Superintendents of Police of all districts and police districts in West Bengal 2. Commissioners of all Police Commissionerates in West Bengal 3. All Superintendents of Railway Police in West Bengal 4. Director General of Police, Enforcement Branch/Additional Director General of Police, CID West Bengal/ / Directorate Economics Offence Wings/Deputy Inspector General of Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Unquote Pursuant to the above direction and in continuation to this office earlier memo no. 114/Law Cell dated 13.08.2008 it is directed that all SSs/SPs/CPs/SRPs under West Bengal Police shall sensitize the field functionaries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court in State of Haryana v. Bhajan Lal wherein, this Court held inter alia that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commission of a cognizable offence can be treated as FIR in a given case and the police has the power and jurisdiction to investigate the same. However, in an appropriate case, such as allegations of misconduct of corrupt practice by a public servant, before lodging the first information report and further conducting the investigation, if the preliminary enquiry is conducted to ascertain whether a cognizable offence is disclosed or not, no fault can be found. Even at the stage of registering the FIR, what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. Despite the proposition of law laid down by this Court in a catena of decisions that at the stage of lodging the first information report, the police officer need not be satisfied or convinced that a cognizable offence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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