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