TaxTMI 
TaxTMI 
TaxTMI 
2021 (12) TMI 1487
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.... is that the police ought to have registered an F.I.R. in these cases only after conducting a preliminary enquiry as mandated by the Supreme Court in Lalita Kumari case reported at (2014) 2 SCC 1 (Lalita Kumari v. Government of Uttar Pradesh). 2. Opposite party no. 2/de facto complainant in C.R.R. No. 1383 of 2021 married the petitioner/accused on January 28, 2011. It has been alleged by opposite party no. 2 in her F.I.R. that she along with her minor daughter were driven out of her matrimonial house where she was tortured by her in-laws and the petitioner. 3. She lodged a complaint before the police on June 10, 2021, and admittedly, on the very same date without embarking upon any preliminary enquiry of the police station case no. 82 of 2021 was registered under Sections 498A/323/406/506 of the Indian Penal Code, 1860 against the petitioner and other accused persons. 4. The marriage between the opposite party no. 2 and the petitioner no. 1 in C.R.R. No. 1534 of 2021 was solemnized as per Hindu rites and customs. 5. In this case, after about ten years of marriage on July 20, 2021, opposite party no. 2 lodged a written complaint with the police alleging, inter alia, that though ....
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....ses the need of conducting a preliminary enquiry in the cases lodged under Section 498A of the Code of Criminal Procedure, 1973. 11. Mr. Mazumder also referred to the case reported at (2021) 5 SCC 469 (Charansingh v. State of Maharashtra) to suggest that the police ought not to have undertaken a full-fledged investigation without conducting the preliminary enquiries in these two cases. 12. Mr. Kallol Mondal, learned advocate appearing for opposite party no. 2 in C.R.R. No. 1383 of 2021, submits that from the judgment of Lalita Kumari (supra) it is apparent that the purpose of a preliminary enquiry is to ascertain as to whether any cognizable offence has been disclosed in the first information report and not to test the veracity of the allegation or otherwise. If the police have a reason to suspect that the commission of the offence is a cognizable one, the police must proceed with the investigation. The investigation of an offence is exclusively within the domain of the State over which the Courts cannot have any control or power to stifle or impinge upon the proceedings as long as the investigation is carried out in conformity with the Code of Criminal Procedure, 1973. 13. Mr. ....
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....he Court cannot direct the investigating agency to act in a manner which is not required by the statute. In support of such proposition, Mr. Bhattacharya relies upon the judgment reported at (1991) 3 SCC 239 (U.P. State Road Transport Corporation v. Mohd. Ismail), (1996) 4 SCC 453 (Union of India v. Kirloskar Pneumatic Co. Ltd.) and (2011) 6 SCC 216 (Central Bureau of Investigation v. Keshub Mahindra). 19. Mr. Bhattacharya, further, argues that the discretion exercised with regard to a directory provision is not justiciable. In this regard, Mr. Bhattacharya relies upon a judgment reported at (1985) 3 SCC 398 (Union of India v. Tulsiram Patel). 20. Mr. Bhattacharya, further, argues that the requirement of conducting a preliminary enquiry is merely procedural and for the breach of a procedural requirement, the investigation should not be interfered with. In this regard, Mr. Bhattacharya has relied upon the judgments reported at (2008) 9 SCC 31 (Haryana Financial Corporation v. Kailash Chandra Ahuja), AIR 1960 SC 444 (Rani Drigraj Kuer v. Raj Sri Amar Krishna Narain Singh) and AIR 1961 SC 200 (L. Hazari Mal Kuthiala v. Income Tax Officer, Special Circle, Ambala Cantt.). 21. Mr. Sas....
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....sclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry." 25. By a later ....
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....f must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report." 28. The Supreme Court, in my view, has carved out the exceptions with the objective to ward off false complaints and save the accused persons from unnecessary harassment. The judgment of the Supreme Court casts an obligation upon the investigating agency to conduct a preliminary enquiry in matrimonial offences to satisfy the investigating agency that the allegations in the FIR along with the materials collected during the preliminary enquiry would, prima facie, constitute the alleged commission of offence. The scope of preliminary enquiry is restricted only to come to a prima facie finding as to the truth or otherwise of the allegations made in the FIR in order to determine whether a full-fledged investigation should be initiated. 29. It has been strongly suggested by Mr. Mondal placing ....
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.... certain cases. Ref: In compliance with the order dated 12.11.2013 of Hon'ble Supreme Court of India passed in connection with W.P.(CRL) No. 68 of 2008 Lalita Kumari - Vs - Govt. of UP & Ors. With SLP(Crl) No. 5986 of 2006 SLP ( Crl) No. 5200 of 2009 Criminal Appeal No. 1410 of 2011 Criminal Appeal No. 1267 of 2007 And Contempt Petition (C) No. D26722 of 2008 In Writ Petition (Crl) No. 68 of 2008. While adjudicating the above matter Hon'ble Apex Court has been pleased to direct:- Quote " i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for and inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the ....
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....eneral of Police, (Administration-II) West Bengal" 31. The argument of Mr. Ayan Bhattacharya that in absence of a statutory provision the police cannot be asked to conduct preliminary enquiry, therefore, becomes redundant since the police, by the said administrative circular, have been asked to follow the mandate of Lalita Kumari case. 32. The judgment reported at (2019) 19 SCC 87 (State of Telangana v. Managipet alias Mangipet Sarveshwar Reddy) does not indicate that preliminary enquiry pertaining to matrimonial disputes, medical negligence, corruption cases need not be conducted. The relevant part of the said judgment is quoted below: "30. It must be pointed out that this Court has not held that a preliminary inquiry is a must in all cases. A preliminary enquiry may be conducted pertaining to matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, etc. The judgment of this Court in Lalita Kumari does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry. 31. ............................. 32. The said judgment does not help the learned counsel for the accused officer. The....
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.... the FIR is sufficient." 33. Paragraph 30 of the said judgment only suggests that preliminary enquiry is not must in all cases. The facts involved in the said report shows that, in that case, relevant information was available with the informant in respect of, prima facie, allegations disclosing a cognizable offence. In that view of the matter, it was held by the Supreme Court that there was no need to conduct a preliminary enquiry. 34. The judgment reported at (2017) 2 SCC 779 (State of Telangana v. Habib Abdullah Jeelani) is not applicable in the present case since in that case the F.I.R. was registered under Sections 147,148,149 and 307 of the Indian Penal Code, 1860. The said case, therefore, did not come within the purview of paragraph 120.6 of the Lalita Kumari case. In fact, the said case was covered under paragraph 120.1 of the Lalita Kumari case. 35. The judgment reported at (2021) 5 SCC 469 (Charansingh v. State of Maharashtra) has followed Lalita Kumari case and held as follows: " 15.1. Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt pra....