Adil ahamad

Intern at Ubadvocate

E-mail ahmadadil7084214803@gmail.com

Ph no. 7007234932

FACTS-

Jyoti is in matrimonial disharmony. She has lodged a complaint against her husband and
in-laws for cruelty under Section 498- A, which is a cognizable offense. But the police
did not register the FIR.

ISSUE-

Whether the police can withhold FIR for preliminary inquiry??

LEGAL OPINION-

First of all, thanks Jyoti for asking me for a legal opinion.

As I went through the facts of your case my opinion is that the police cannot withhold
FIR for a preliminary inquiry.

FIR means ‘First Information Report.’ FIR is the first document prepared in criminal
proceedings. FIR is a document that places on record the victim's side of the story. FIR
acts as a tool on which police authorities base and start their investigations. Hence, it is
pretty clear that an FIR plays a vital role in criminal proceedings.

Section 2(c) of the Criminal Procedure Code (1973), defines a cognizable offense.
According to the definition given in the Code, such offenses are those where the police
are empowered to make an arrest of the accused without a warrant or permission from the
magistrate. These offenses are more serious and heinous. This classification of offenses
and whether a particular offense falls under the category of cognizable offense or not is
given under the First Schedule of the Code. Examples of such offences are rape, murder,
abduction, theft, kidnapping, etc. These offenses create a threat to society and disturb the
peace and harmony therein.

In these offenses, the police can arrest the accused without any warrant or permission
from the court and initiate the investigation proceedings. The punishment in such
offenses is usually more than 3 years and may extend up to life imprisonment or death.
However, these offenses may either be bailable or not, which also depends on the
discretion of the court. The first schedule in the Code also mentions whether the
particular offense is bailable or not.

Section 154(1) of the CrPC-

Every information relating to the commission of a cognizable offense, if given orally to
an officer in charge of the police station, shall be reduced to writing by him and the
substance thereof shall be entered in a book to be kept by such officer in such form as the
state government may prescribe in the behalf.

It clearly states in section 154(1) that the cognizable offense will have to be registered
immediately in the book of the police officer.The provision of section 154 of CrPC is
mandatory and the concerned officers duty bound to register the case on the basis of
disclosing a cognizable offense.Jyoti is entitled to have his FIR registered as it is
compulsory for the police officer to do so under section 154 because the offense is
cognizable according to the First schedule.

In the State of Haryana and others V/S Ch. Bhajan Lal and others,Supreme court held
that If any information disclosing a cognizable offense is laid before an officer in charge
of a police station satisfying the requirements of section 154(1) of the CrPC, the said
police officer has no other option except the substance thereof in the prescribed form, that
is to say, to register a case on the basis of such information.

In the case of Lalita Kumari V/S Govt of U.P & Ors, it was stated that “registration of
FIR is mandatory under Section 154 of the Code if the information discloses commission
of a cognizable offense and no preliminary inquiry is permissible in such a situation”.The
Supreme Court held that the police officer cannot avoid his duty of registering an offense
if a cognizable offense is disclosed. Action must be taken against erring officers who do
not register the FIR if the information received by him discloses the cognizable offense.
If the information received does not disclose a cognizable offense but indicates the
necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain
whether cognizable offense is disclosed or not.

The police officer who had not registered the FIR has broken the law.In the CrPc,
nowhere has it been written that the police are under the obligation to conduct a
preliminary inquiry.

This is to be done only by the magistrate after examining all the shreds of evidence,
witnesses, etc. after which an order may be given to start an investigation.

It is a cognizable offense, which means that the police would have been able to
investigate without a warrant, but not without an FIR which is mandatory. The police are
not allowed to not register the FIR, which itself is an offense.

CONCLUSION-

As I went through the facts of your case my opinion is that the police cannot withhold
FIR for a preliminary inquiry.

Jyoti has lodged a complaint against her husband and in-laws for cruelty under Section
498- A, which is a cognizable offense.

So,She is entitled to have his FIR registered as it is compulsory for the police officer to
do so under section 154 because the offence is cognizable according to the First schedule.

The police officer who had not registered the FIR has broken the law.In the CrPc,
nowhere has it been written that the police are under the obligation to conduct a
preliminary inquiry.

It is a cognizable offense, which means that the police would have been able to
investigate without a warrant, but not without an FIR which is mandatory. The police are
not allowed to not register the FIR, which itself is an offense.
My opinion on this topic is based on the YouTube video
https://youtu.be/MBMIp5vd4UQ of Jeevan Prakash, AOR, SUPREME COURT.