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Can the Constitutional Courts Quash an FIR ?

This article which may perhaps embarrass the higher judiciary of the country and antagonise a section of the robed brethren at the Bar, is penned  out of the disillusionment of the author at the way truth and real life  miseries are forensically placed on the adjudicatory  altar for being judicially guillotined.    Those who are familiar with the curial mechanics know how easy it is to get an FIR quashed and how, until then the investigation of the case is got stalled through an interim order.

2. Let me at the outset recollect the usual action pattern  (tactics)  adopted by the ‘culprits’ as soon as an FIR  is lodged against them.  They will first approach the High Court for quashing the F.I.R.  on the ground that it does not, on the face of it,  disclose the ingredients of the cognizable offence alleged.   They would argue   that the law presumes them to be innocent until found  otherwise after trial and that  if such an FIR is allowed to sustain, the police will mercilessly  deprive them of their  precious liberty by arresting them and would  subject them to  third degree  methods  and  get them remanded to judicial custody in flagrant violation of their fundamental rights and that it would be poor solace  to be told in the long run that they were really innocent.  The right to personal liberty is so valuable and so sacrosanct, they would argue, that it should not be allowed to be invaded  merely because an incomplete and inchoate FIR came to be  registered against them.  At times,   their reputation in the  society  or  in the particular field of activity is also highlighted to contend that the FIR should be quashed.  Very often, the “inherent power” jurisdiction of the High Court  under Sec. 482  of the Code of Criminal Procedure, 1973 (“the Cr.P.C.” for   short)  is invoked for the desired pre-emptive exercise of the crime case.  Instances of recourse to Article 226 of the Constitution are also not rare.  Binding verdicts to buttress  their stand are  also legion.   There is  profusion of precedential  authority  to say that if the FIR,  on the face of it,  does not make out any offence or if the components of the offence are absent in the FIR, Constitutional Courts have the power to quash the FIR or else it would be an abuse of the process of Court to allow further action on  such FIR.  It is  here that, this humble self,  with  utmost respect,  begs to differ, if not disagree.

Status of an FIR

3. The  purpose of an FIR  is only to set the criminal law in motion.  A first information statement given under Sec. 154 Cr.P.C. alleging the commission of  cognizable offence need not necessarily be given by a victim or an eye-witness.  Those who seek to quash an FIR  very often forget  that an  FIR cannot be placed on the same pedestal as that of the charge-sheet  (Police  Report) or a complaint since the FIR is not a document of institution unlike the police report or a complaint.   When an FIR is forwarded to the Magistrate under  Section 157 Cr.P.C., the Magistrate is not entitled to take cognizance of the offences, if any, alleged therein  unlike in the case of a private  complaint or a police report.  Since the Magistrate knows that it will be premature, at that stage, to reasonably suspect the commission of a cognizable offence, he will only receive the FIR and  await the   final report (police report)  to be filed under Sec. 173 (2) Cr.P.C.  Eventhough Section 190 Cr.P.C. envisages  4 sources for taking cognizance of an offence, the usual sources that we come across in our Courts are police  report  and private complaint.  That is why for the purpose of trial of cases, Chapter XIX Cr.P.C. mentions about cases instituted on a police report and instituted otherwise than on a  police report.  An FIR is, therefore, not a document for the institution of a case.  The object of sending the FIR (actually it is only a report incorporating the reasonable suspicion of the SHO  regarding the commission of a cognizable offence)  under Section 157 (1) Cr.P.C. to  the appropriate Magistrate and the object of transmitting the entries in the police diary to the Magistrate  under Sec. 167 (1) Cr.P.C. are only to ensure that the action of the SHO is  liable to be overseen and/or monitored by the Magistrate.

Sec. 482  Cr.P.C. only against Pending Matters

4. The position  that the inherent power of the High Court can be exercised under Section 482 Cr.P.C. only in respect of a proceeding pending  before an inferior criminal Court is well settled.  (Vide Kurukshetra University and Another v. State of Haryana and Another – AIR  1977 SC 2229;  State  of West Bengal and Others v. Sujit Kumar Rana – (2004) 4 SCC 129 and State of Punjab v. Davinder Pal Singh Bhullar and Others – AIR 2012 SC 364).    But merely because  an FIR  is sent to the Magistrate it cannot be said that a case is pending before the Magistrate.  A case can be said to be pending before the Court only if the Court, after taking cognizance of the offence on a police report (which is the final product after the conclusion of investigation) issues  process to the accused.  Then only the accused can  be said to have been proceeded against.  Strictly speaking, then only the accused gets a right to challenge the proceedings before Court and possibly to ask for the relief of quashing the proceedings including, perhaps the charge sheet, under Section 482 Cr.P.C. on any of the grounds available to  him.    This may be in tune with the law  laid down by the Apex Court in Union of India v. W.N. Chadha – AIR 1993 SC 1082; Narender G. Goel v. State of Mahaarashtra – (2009) 6 SCC 65; Simon and Others v. State of Karnataka – (2004)  2 SCC 694; Md. Kalam v. State of Rajasthan – AIR 2007 SC 1813 etc.  where it has been held that the  accused have no right to interfere with the investigation by the police and  in Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of A.P. and others, where it has been held that the accused have no right to question further investigation  conducted under Section 173 (8) Cr.P.C.    Thus, until  the matter reaches the Court and a  stage has  reached when  it could be said that the  case  is pending before the Court, there cannot be any abuse of the process of Court or a right to challenge the FIR under Section 482  Cr.P.C.  But there are decisions  galore to the contrary notwithstanding the fact that the inherent power of the High Court under Sec. 482 Cr.P.C. should be exercised  sparingly and with  circumspection and only  in the rarest of rare cases.  (Vide R.P. Kapur v. State of Punjab – AIR 1960 SC 866; State of West Bengal and Others v. Swapan Kumar Guha and Others – AIR 1982 SC 949; State of Haryana and Others v. Ch. Bhajan Lal and Others – AIR 1992 SC  604; S.M. Datta v. State of Gujrat and Another – AIR 2001 SC 3253; M. Krishnan v. Vijay Singh – AIR 2001 SC 3014; Jagdish Chanana and Others v. State of   Haryana and Another – AIR 2008 SC 1968; Reshma Bano  v. State of U.P. (2008) 5 SCC 791).

Feasibility of a Challenge under Article 226 of the Constitution

5. Now the further question is whether the  FIR can be  quashed  under  Article  226 of the Constitution of India.  As mentioned earlier, the purpose of an F.I. statement is only to set the law in motion and such a statement  need not be given by a victim or eye-witness.  If  the F.I. statement is given  by a person other than a victim or eye-witness, then it is bound to be vague or incomplete.  Even when  the FI. statement is given by a  victim or witness it need not  necessarily be a complete document.  Courts have held that an FIR need not be an  encyclopedia of all the relevant facts. The hazy picture  presented by the FIR will be rendered more and more clear when all the incriminating material is unfolded during investigation.  Even the  names  and other details of the culprits will be fully revealed only after the investigation has progressed considerably.  If before the real facts are unearthed by the investigation, the F.I.R.vaguely alleging the commission of cognizable offences, is nipped in the  bud, there cannot be a greater injustice.  The purpose of  an FIR being what it is, it may be possible  to contend that even if the allegations made in the FIR are   accepted  as true, the same will not make out the ingredients of the offence.  This is so because the entire facts are yet to be unravelled through the process of collecting evidence  during   the investigation.  It is  not as if the Apex Court has not delineated  the approach to be made in respect of the averments in the FIR.   In Paragraph 9 of Rajesh Bajaj v. State, NCT of Delhi  and Others – AIR 1999  SC 1216, the Court observed as follows:-

“ It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging.  Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.  Splitting up of the definition  into different components of the offence to make a  meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint is not the need at this stage.  If factual foundation  for the offence has been laid in the complaint the Court should not hasten to quash  criminal proceedings during investigation stage merely on the premise that one or two  ingredients have  not been   stated with details.  For quashing  an FIR (a step which is permitted  only in extremely  rare cases) the information in the complaint  must be so bereft of even the basic facts which are absolutely necessary for making out the offence” .

No doubt, this decision of the Apex Court has followed  Bhajan Lal’s Case (supra)  for  pointing out the class of cases in which the FIR could be quashed.  The author has  respectful reservations about that part of this decision.  Again in paragraph  9 of   S.M.Datta v. State of Gujrat – AIR 2001 SC 3253, although endorsing the earlier  view  that in appropriate cases an FIR also could be quashed,  the Apex Court observed as under:-

“ Criminal proceedings in  the  normal course of events  ought not to be scuttled at the initial stage, unless the same amounts to an abuse of the process of law.  In the normal course of events thus, quashing  of a  complaint should rather be an exception and a rarity than an ordinary rule.  The genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole  so as to decipher the intent of the maker thereof.  It is not a document which requires decision with exactitude neither  it is a document which requires mathematical accuracy  and nicety, but the  same should be   able  to communicate  or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise.  It is in this context  however,  one feature ought to be noticed at this juncture that there cannot possibly be any guiding factor as to which investigation  ought  to be  scuttled at the initial stages and investigations which ought  not to be so scuttled.  The First Information Report needs to be considered and if the answer is found on a perusal thereof which leads to disclosure  of an offence even broadly, law Courts are barred from usurping the jurisdiction of the Police since two organs of the  State operate in two specific spheres of activities and one ought not to tread over the other sphere”.

Here also  there is a slight overstatement of the law because the  ingredients of an offence alleged in the F.I.R. will be unravelled only when the investigation is complete and the Investigating Officer has arrived at the requisite satisfaction that the alleged offence has been  committed and the accused  should be forwarded to the appropriate court for trial.

ARREST AND ITS CONSEQUENCES

6. As for the consequence of arrest and the harassment which are the main grounds usually put forward in support of the petitions for quashing the FIR, courts have held that the power to arrest a person should be resorted  to only if it is necessary as is cautioned by Section 157 (1)  Cr.P.C. itself.   Moreover, Chapter XXXIII Cr.P.C. pertaining to bail can take care of the situation in cases of arrest.     A contention similar to the aforesaid  one voicing an apprehension that the mandatory registration of a crime will lead to arbitrary arrest which in turn will result in contravention of Article 21 of the constitution of India, was repelled by a Constitution Bench of the  Supreme Court of India in Lalita Kumari v. Government of U.P. and Others – (2014) 2 SCC 1 = 2013 (4) KHC 552 = 2013 (4) KLT 632.  To allow the accused (who is yet to be summoned  to the Court) to challenge the FIR will be to confer a right in the accused at the pre – process stage.  It is pertinent to  notice  the law laid down by the Supreme Court in Sashi Jena  and Others v. Khadal Swain and Another  – AIR 2004 SC 1492 that at the enquiry stage under Sections 200 and  201 Cr.P.C. which is after the stage of investigation but before  the appearance of the accused, the accused  in a complaint case has no right to cross-examine the witnesses and that even if  the accused happens to be present in Court at that stage, he has no  right to participate in the proceedings  but can only watch the proceedings.

INVESTIGATION  STALLED

7. Whenever a petition  for quashing an FIR is entertained and notice to the State and first informant (whose existence is invariably forgotten) is ordered, then the interim order very often prayed for and  granted  is the  stay of investigation which is the exclusive province of the investigating  agency.   By such an order the Police can be successfully disabled from  collecting vital evidence which may in the natural course of events  or with the intervention of human agency, disappear or perish.  Think of the calamity, if after a few weeks (months or years) the petition is dismissed.  Can the investigating agency whose hands were tied for weeks, months  or years, unearth any  useful material after such long lapse of time ?  Incalculable loss may be caused to the aggrieved person for no fault of his.

CONCLUSION

Considering all these aspects,  I am of the firm view that the Constitutional Courts cannot and should not quash an FIR which is a nascent  document the averments of which will take a tangible shape only after the process of collection of evidence is complete.

Justice V Ramkumar

 

Justice V.Ramkumar is a Former Judge, High Court of Kerala and  Chairman, Advisory Board, Kerala Anti-social Activities Prevention  Act

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  • J.k.jayaselan says:

    Wonderful initiative…. Hatsoff …

  • Adv.JEEVAN.D says:

    This article holds out a pure legalistic view of Code of Criminal Procedure, 1973 rather than upholding a constitutional and human rights reading of Criminal Procedure. An FIR is a record of ‘any information relating to the commission of a cognizable offence’ as laid down in Section 154 of CrPC. Therefore the acid test should be whether the ‘information’ discloses or in a way points out the commission of any cognizable offence. It should not be used as an excuse to kick start an investigation into whether a particular person had committed an offence or not. The Supreme Court of India in Common Cause, a registered society v Union of India AIR 1999 SC 2979 had held that a direction to an investigating agency to investigate whether any person had committed an offence or not, cannot be legally given, which is otherwise known as the right against roving enquiry and such an action would be violative of Article 21 of the Constitution of India. It was also held that a direction for investigation can be given only if an offence is prima facie found to have been committed or a person’s involvement is prima facie established. Eventhough this case can for an argument’s sake, can be said to apply only to those cases, where constitutional courts orders investigation, in my opinion, it applies equally well for FIRs registered by Police also. In almost all cases coming before High Courts for quashing FIRs, the impugned FIRs are mostly aimed to kick start a criminal investigation into whether a particular person had committed an offence or not. An investigation should aim at collection of evidence on a crime committed and thereupon find out those who are culpable and not the other way around. as per Section 2(h) of CrPC and not roving enquiry as aforestated. A judge of Constitutional Court should be sensitive to these constitutional aspects and decide thereupon and those judges who are promoted from among subordinate judiciary seems to be quite aversive, to say the least, to these constitutional aspects in quashing FIRs. If the main argument of this article i.e ‘do not touch FIRs’ is taken to its logical conclusion, then there will be widespread and flagrant violation of the precious RIGHT TO ‘LIFE’ AND ‘PERSONAL LIBERTY’ of all persons under Article 21 of the Constitution of India. The second important weakness of ‘do not touch FIR’ attitude is that under the scheme of CrPC, an accused person can be said to be completely out of the danger of an FIR forever, if only, he is acquitted or convicted for an such an offence mentioned, if the argument in this article is taken to its fullest conclusion. Section 173(8) and explanation to Section 300 gives enough powers to State Government to resurrect a criminal investigation on the basis of an unquashed FIR against any person, at any time, on the basis of ‘additional evidence’, the criterion of which is yet to be defined and decided clearly by courts. Discharge under Sections 227 and 245(2) are exempted from the purview of Section 300 CrPC. Therefore an unquashed FIR is a ‘Democles sword’ hanging over an accused person all over his life, even if he is discharged of such an offence. This will lead to another anarchy and will be used to target opponents by those who are in power, if such an FIR is not quashed. If any accused person challenges a refer report filed under Section 173 along with FIR, then the Constitutional Courts will invoke the convenient excuse of ‘alterative remedy’ of approaching the trial court for discharge or the concerned magistrate examining such report. Even if High Court chooses to intervene just after filing refer report under Section 173 and before taking cognizance by magistrate, would that be a transgression of authority of lower courts under Section 482 and the judicial discipline it demands ? Therefore taking an attitude of ‘do not touch FIR seems not to be sound or legal in a constitutional and civilized society and since there is a lot of difference between a police state and a constitutional democracy.

  • Ashok Sehgal says:

    You have not commented on the settlement/compromise after FIR is registered. Also it has been missed out the consequences of backing out of such stettlement after availing all the benefits under the settlement without acting upon ones obligation making mockery of settement and court proceedings. Should not the Court interefere to remove this injustice and compel the litigiant to fulfil his obligation whether financial or otherwise

  • Prashant Padmanabhan says:

    The author seems to broadly rely on two factors to suggest that the “Constitutional Courts” should not quash FIRs. Those are
    1. at the stage of FIR, the criminal proceedings have not commenced and only if a criminal proceeding is pending, the High Courts or Supreme Court should exercise the powers to quash it.

    This is a purely legal contention based on the interpretation of the statute.

    2. Very often, stay of investigation is prayed for and granted while the main decision in the petition for quashing (often u/s.482 Cr.P.C.) is pending hearing before the High Court. What would be the effect, if stay of investigation is granted, the investigation agency is disabled from collecting vital evidence which may in the natural course of events or with the intervention of human agency, disappear or perish. What would be the consequence, if the petition (for which there was an initial stay) is subsequently dismissed and the evidence is destroyed in the meantime.

    The author has relied on a bundle of judgments to substantiate his contentions. A comment to the applicability or relevance of each of those judgments vis-à-vis the contentions in the article is not required as each one of those judgments were passed in different contexts and are good for the law laid down therein only. Any casual observations made therein or passive comments therein are not the law laid down by the Supreme Court. Those judgments are not to be read as a statute.

    Now in reply to the article my comments are as below.

    It seems, by the word ‘Constitutional Court’, the author meant, the High Courts and the Supreme Court. That is the usage in common parlance. However, our Constitution mentions in detail about the Courts subordinate to the High Courts in judicial hierarchy and they are also “Constitutional Courts.” One of the eminent jurists, Shri.Gopal Subramanium has mentioned that “all courts are Constitutional Courts”. Please see this article.
    http://www.thehindu.com/todays-paper/tp-opinion/when-judges-dont-adjudicate-enough/article4672002.ece

    1. Regarding the first contention, viz, that the at the stage of FIR, the criminal proceedings have not commenced and only if a criminal proceeding is pending, the High Courts or Supreme Court should exercise the powers to quash it, the answer is as follows:

    The judgment of Supreme Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 ~ AIR 1992 SC 604 is the leading judgment on the issue of power of High Courts to quash an FIR. It has been referred to, relied upon and applied in subsequent judgments of Supreme Court (even by 3 Judge Benches, pl see Gian Singh v. State of Punjab (2012) 10 SCC 303 ~ AIR 2012 SC Supp 838) and High Courts across the country. Needless to mention that the powers u/A.226 of the Constitution are also dealt with in several of those decisions. The scope of interference is explained and limited in those catena of judgments. These are regarded as precedents on the subject. Therefore, it can be safely concluded that this is no more res integra.

    The author expresses his reservations about the portions of the judgment in Bhajan Lal’s case. Fair enough. If such an argument is raised before the Supreme Court on a future date and if the Supreme Court constitutes a larger Bench (of 5 or more Judges) to overrule the settled position of law as declared in Bhajan Lal’s case and subsequently followed for all these years, this could possibly be one of the contentions, that the criminal proceeding is not pending before a criminal court at the FIR stage. To my mind, it seems highly unlikely because the Courts have already made the scope of interference very narrow.

    In my humble view, it is open for the Judge before whom the petition for quashing is pending to apply the law declared by the Supreme Court and it is not feasible to tie his hands by a universal declaration that in no case, an FIR can be quashed.

    2. Regarding the second contention viz, the effect of stay of investigation pending a final order on a petition seeking quashing the FIR and the possibility of destruction of evidence in the meantime, again we have to trust our Judges who exercise the powers. They are mindful of such possibilities in a given case and would not grant ex parte stay in every case. Usually, only a stay of arrest is granted and not stay of entire investigation. There may be directions to cooperate with investigation also. This is perfectly justified in as much as personal liberty of individuals who are accused of offences is as important as, if not more important than, possibilities of destruction of evidence, even after strict observance of the conditions scrupulously laid down by the Supreme Court in such situations.

    In Kurukshetra University v. State of Haryana (1977) 4 SCC 451, a 3 Judge Bench of the Supreme Court had mandated that in all cases, where quashing u/s.482 is prayed for, a notice to the complainant is mandatory. Hope, the Judges will keep in mind all possibilities before granting a stay.

    The author asks, “what would be the consequence, if the petition (for which there was an initial stay “of investigation”) is subsequently dismissed and the evidence is destroyed in the meantime”? This circumstance would weigh heavily in the mind of the Judge who grants such order of stay.

    We can ask, the converse. what would be the consequence, if the innocent person is arrested and harassed for some absurd allegations in an FIR, which the Court subsequently finds to be a “misuse of process of law”, a “purely civil dispute” or “an allegation even after being proved, does not make out any offence”. The consequence is graver, in my humble view.

  • subhash kulkarni says:

    thanks Justice V,RAMKUMAR and LIVE LAW for providing such informative article . It is an eye opener for legal
    fraternity (including myself) .

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