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The investigation without registration of FIR is impermissible in law

Shivendra Pratap Singh

Advocate

15/08/2019

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Question: A police officer came to my house yesterday and told that an FIR has lodged against me. But he did not give any information about the FIR. I think he is doing investigation without registration of FIR. Therefore, I contacted a lawyer to find the truth behind all this. He told me that no such FIR has lodged in the police station.

The police officer is still investigating without any FIR. He did not tell about the nature of the allegation. What is remedy against this dummy investigation? Whether police officer has power to investigate in hush-hush.

Asked from: Telangana

First, we should understand what is the legal procedure for the investigation of a cognisable offence. A police officer can investigate a cognisable offence without permission of the court. 

However, it seems an unfettered power but the provisions of Section 154 and 157 of CrPC (code of criminal procedure) regulate the power of investigation. These provisions make it clear that investigation without registration of FIR is not permissible. First Information Report (FIR) is sine-qua-non (mandatory) for the commencement of investigation. 

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

Also read: What to do if police officer investigating under pressure

When the information discloses cognisable offence then the police can start investigation. In the Lalita Kumari case the Supreme Court has held that police must investigate the crime if information (FIR) discloses cognisable offence. 

Investigation without registration of FIR

Section 154 CrPC states that the officer in charge of the police station shall record the information of cognisable offence as an FIR. The word FIR is not specifically used in section 154. It is a general cannotiation that information recorded under section 154 CrPC is an FIR.

Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant……..

Section 154 CrPC

After recording of the FIR, police officer forthwith sends a report to the Magistrate under section 157 crpc. Compliance of this provision is mandatory for the investigating officer. The report proves that before launching the investigation he has reason to believe that a cognisable offence has been committed.

If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender……..

Section 157 CrPC

Why is a report under section 157 CrPC mandatory?

This report is an intimation to the Judicial Magistrate towards the investigation. These are the main reasons behind sending police report the the Magistrate:

Inform the Judicial Magistrate (JM) before commencement of investigation. Satisfy the Judicial Magistrate that investigation is relating to the cognisable offence. Empower the Judicial Magistrate to take cognisance of offence on the police report. 

Also read: Accused’s right against improper investigation

After taking the cognisance the Magistrate can monitor the investigation and pass necessary orders during the investigation. The magistrate can issue a summon or warrant, police remand, take the accused in judicial custody, grant bail etc. Without taking the cognisance of the police report the Magistrate cannot pass such orders.  

Effect of investigation without registration of FIR

It appears from the provisions of CrPC that a police officer cannot investigate a crime without recording the FIR. FIR is the cornerstone of criminal proceedings. In absence of FIR the accused cannot know the nature of allegation. Thus he cannot exercise his rights against a mala-fide criminal proceeding.

Also read: When the court can quash the mala-fide proceeding?

Right to know the allegation is the essential part of fair trial. Fair trial is a fundamental right under Article 21 of the Constitution of India. Thus, absence of FIR at the stage of investigation also violates the fundamental right of the accused.  

If the FIR does not exist at the time of investigation the Magistrate cannot provide its copy to the accused under section 207 CrPC. Section 207 states that the Magistrate shall provide the copy of FIR, police report, statements of witness etc. to the accused. 

FIR sets the criminal law in motion. Any person can lodge the FIR under section 154 CrPC. This provision has enlarged the scope of receiving information. So, recording of information before investigation is the bottom line of criminal proceeding. Investigation without FIR strikes at the root of criminal proceeding.

Illegal investigation violates the fundamental right of accused

Investigation without registration of FIR violates the fundamental right of accused. Fair and impartial investigation is a fundamental right of the accused. Nirmal Singh versus the State of Punjab (2009) 1 SCC 441, Babubhai versus State of Gujarat (2010) 12 SCC 241. 

Also read: You should know everything about the FIR

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 under 156(3) CrPC. The Magistrate has power to monitor the investigation [Sakiri Basu Vs State of U.P.] This is the first remedy against an illegal investigation. The magistrate, thereupon, call the case diary and progress report of investigation from the officer-in-charge of the concerned police station. If he is unable to produce the copy of FIR then Magistrate can direct to stop the investigation. You can also approach the High Court under section 482 CrPC 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.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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