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2020 (1) TMI 1469
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.... arrest Mithilesh Kumar and his other family members for committing offences punishable under Sections 498-A and 304-B of the Indian Penal Code. 3. Daughter of the petitioner namely; Priyanka Kumari (since deceased) was married with Mithilesh Kumar on 30-11-2014. The couple were blessed with a male child on 7-9-2015. On account of alleged ill treatment and demand of dowry Priyanka Kumari was found dead by hanging on 28-10-2016. The petitioner made an application to the concerned Station House Officer on 21-11-2016 for registering FIR against his daughter's husband Mithilesh Prajapati, mother-in-law Shakuntala Devi, brother-in-law Devesh Kumar & Omprakash. Since no action was taken by the police the writ petition was filed. 4. The learned Single Judge noticed the judgments relied by the State's counsel rendered by the Supreme Court in Aleque Padamsee and Others v. Union of India and Others (2007) 6 SCC 171 and Sakiri Vasu v. State of Uttar Pradesh and Others (2008) 2 SCC 409 as also the decision of the Division Bench {Ajay Kumar Tripathi, C.J. & Parth Prateem Sahu, J.} of this Court rendered in Arun Singh Thakur v. State of Chhattisgarh and Others W.A. No. 651 of 2018 (dec....
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....onsidered in detail by the Supreme Court in Lalita Kumari (supra) to hold thus: 109) The registration of FIR under Section 154 of the Code and arrest of an accused person under Section 41 are two entirely different things. It is not correct to say that just because FIR is registered, the accused person can be arrested immediately. It is the imaginary fear that "merely because FIR has been registered, it would require arrest of the accused and thereby leading to loss of his reputation" and it should not be allowed by this Court to hold that registration of FIR is not mandatory to avoid such inconvenience to some persons. The remedy lies in strictly enforcing the safeguards available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of FIR when the information discloses commission of a cognizable offence. 110) This can also be seen from the fact that Section 151 of the Code allows a police officer to arrest a person, even before the commission of a cognizable offence, in order to prevent the commission of that offence, if it cannot be prevented otherwise. Such preventive arrests can be valid for 24 hours. However, a Maharash....
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....tc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR. 9. The issue as to whether an accused has right of hearing before registration of FIR has fallen for consideration before the Supreme Court in a catena of decisions. We shall quote few of the judgments wherein the Supreme Court has held that no such right of hearing is available to an accused at the stage of registration of FIR and investigation. 10. In Union of India and Another v. W.N. Chadha 1993 Supp (4) SCC 260, popularly known as 'Bofors Case', the High Court quashed the orders of the criminal Court who had issued letter rogatory against the person, on the ground that the Special Judge has not complied with the principle of audi alteram partem. Upon full dissection of the law on the subject the Supreme Court in W.N. Chadha (supra) observed thus in paras 90, 95, 96 & 98: 90. Under th....
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....every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary. (Emphasis supplied) 11. In Narender G. Goel v. State of Maharashtra and Another (2009) 6 SCC 65 the Supreme Court held thus in paras 11 & 12: 11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. this Court observed : (SCC p. 743, para 11) "There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the c....
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....o the said police officer. The genesis of this provision in our country in this regard is that he must register the FIR and proceed with the investigation forthwith. While the position of law cannot be dispelled in view of the three Judge Bench Judgment of this Court in State of U.P. v. Bhagwant Kishore Joshi, a limited discretion is vested in the investigating officer to conduct a preliminary inquiry pre-registration of a FIR as there is absence of any specific prohibition in the Code, express or implied. The subsequent judgments of this Court have clearly stated the proposition that such discretion hardly exists. In fact the view taken is that he is duty bound to register an FIR. Then the question that arises is whether a suspect is entitled to any pre-registration hearing or any such right is vested in the suspect. 31. The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is....
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.... the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary." 32. In Samaj Parivartan Samuday v. State of Karnataka a three-Judge Bench of this Court while dealing with the right of hearing to a person termed as 'suspect' or 'likely offender' in the report of the CEC observed that there was no right of hearing. Though the suspects were already interveners in the writ petition, they were heard. Stating the law in regard to the right of hearing, the Court held as under: "50. There is no provision in Cr.P.C. where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI. as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the pre....