The investigation without registration of FIR is impermissible in law

by | 15 Aug, 2019 | Criminal Law

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A police officer is trying to harass me in the false investigation. He says that an offence of cheating is registered against me. After that, I contacted an advocate to find the said FIR. He told me that no such FIR has lodged in the police station.

The police officer is investigating without any FIR. He did not tell about the nature of the allegation. Who is the informant? What is the actual case against me? Sir, please help.

First, we should understand what is the law about the investigation of a cognisable offence. However, the police have an exclusive power to investigate the crime, but that power is not absolute and unfettered. He cannot investigate a crime without recording of the FIR or information of the crime.  Section 154 and 157 and other sections of the code of criminal procedure (crpc) regulate this power.

Investigation without registration of FIR

According to section 157 crpc, the investigating officer must send a report to the Magistrate before taking up the investigation. That report contains the information which he has received and registered before initiating the investigation. If the investigating officer does not send the report to the concerned judicial magistrate, the investigation becomes void. Therefore, the provision of section 157 mandates that the investigating officer will commence the investigation after registering the case (FIR).

Samaj Parivartan Samudaya vs State of Karnataka (2012) 7 SCC 407: the Supreme Court held that registration of the case upon information received is sine quo non (mandatory) before proceeding to take up the investigation.

Police can investigate the cognisable offence without the order a Magistrate. At the same time, the Magistrate has the power to monitor the investigation. The magistrate can issue summon or warrant or pass any suitable order during the investigation. So he must have the information about the investigation. He gets that information through the report submitted by the investigation officer under section 157.

Therefore, section 157 directs the investigation officer to send a report to the Magistrate about the nature of the offence and progress of the investigation. In the absence of FIR, he cannot satisfy the Magistrate that what is the basis of the investigation. Hence, it becomes mandatory for the police to register the FIR before commencing the investigation.

Compliance of Section 157 CrPC is mandatory

Section 157 crpc controls the unfettered power of investigation. However, the police officer can not disclose the source of information but he is bound to enter the substance of information in the General Diary and register an FIR. If he has received the information from a person then he has to record it under Section 154 crpc as FIR.

The crpc mandates that any person can lodge the FIR because the FIR sets the criminal law in motion. FIR contains the allegation, nature of crime, name of accused, time & place of occurance etc. So police cannot investigate the crime by hiding this basic information.

Lalita Kumari vs Government of Uttar Pradesh (2014) 2 SCC 1; the Supreme Court held that recording of FIR before conducting an investigation is mandatory.

Fair investigation is the fundamental right of accused

The fair and impartial investigation is a fundamental right of the accused. Nirmal Singh versus the State of Punjab (2009) 1 SCC 441Babubhai versus State of Gujarat (2010) 12 SCC 241. 

The accused has a right to know the nature of the allegation and the basis of the investigation. The police will provide this information to the accused whenever he demands. Since FIR contained all this information so recording of FIR is mandatory before initiating the investigation. If the investigating officer does not furnish a copy of FIR he violates the fundamental right (right to know) of the accused.

If the information or FIR is false and vague the accused has the right to approach the court for the quashing of such an investigation. When the police is carrying on investigation without writing the FIR then he cannot

  • Produce the information to the accused.
  • Send a report to the Magistrate under section 157.
  • Satisfy the court that the investigation is valid.
  • Defend the investigation in the court.
  • Approach the court for the issue of summon or warrant.
  • Demand police custody etc.

Remedy

You should move an application before the concerned judicial magistrate that the police officer is carrying on an illegal investigation. Thereupon, the magistrate will ask the case diary and progress of investigation from the officer-in-charge of the concerned police station. If he is unable to produce the copy of FIR then you can approach the High Court for quashing of the investigation.

If the police officer is investigating the case in absence of the FIR then the court can quash this illegal investigation. You may file a petition before the High Court under section 482 crpc for quashing of the investigation. This section empowers the court to stop the violation of the code of criminal procedure. Investigation without registration of FIR is violative of the provisions of crpc. Thus the High Court may quash such an investigation.

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