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Preliminary Inquiry can be made by Police in Cognizable Offences : SC restated


Supreme court in the matter of State By Karnataka Lokayukta Police Station Vs M. R. Hiremath, restated the need of preliminary inquiry, which police can do before registering the FIR in cognizable offence.

In Nov 2012, a complaint was lodged against the then Deputy Commissioner of Bangalore Development Authority (BDA) of the corruption in the Land Acquisition Section. The complainant has the apprehension of bribery for the denotification of the land which the BDA acquired.

The complainant then contacted police and discussed the apprehension, police helped him with spy camera to record, based on the spy recording FIR was lodged.

During the police investigation and the recording, it was came on record that second accused took five lakhs rupees on behalf of the first accuse. Then Charges were framed for offences punishable under “Sections 7, 8, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988”.

The accused then moved before the High Court of Karnataka for quashing, and it was quashed based on the absence of “certificate under Section 65B of the Evidence Act, secondary evidence of the electronic record based on the spy camera is inadmissible in evidence”.

The Bench of Justice Chandrachud and Justice Gupta observed that “the complainant is alleged to have met the respondent. During the course of the meeting, a conversation was recorded on a spy camera. Prior thereto, the investigating officer had handed over the spy camera to the complainant. This stage does not represent the commencement of the investigation. At that stage, the purpose was to ascertain, in the course of a preliminary inquiry, whether the information which was furnished by the complainant would form the basis of lodging a first information report..”

The bench explained the purpose of preliminary inquiry as;

“The purpose of a preliminary inquiry is to ascertain whether a cognizable offence has been made out on the basis of which a first information report can be lodged. The basis of a first information report under Section 154 of the CrPC is information relating to the commission of a cognizable offence which is furnished to an officer-in charge of the police station. It is with a view to ascertain whether a cognizable offence seems to have been implicated in a case involving an alleged act of corruption by a public servant that a preliminary inquiry came to be directed in the judgement of this Court in P Sirajuddin. The decision in P Sirajuddin was recognized and followed by the Constitution Bench in Lalita Kumari”.

The bench reiterated the purpose of preliminary inquiry from the previous judgment as;

“Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. 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”.

The bench also reiterated the settled principle of law for discharge that;

“..It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence”.

The bench also referred the State of Tamil Nadu Vs N Suresh Rajan which says, that based on the recorded material, charges can be framed but mini trial not permitted.

“29…At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”

The bench dismissed the discharge application filed by the respondent and allow the appeal. The bench also set aside the judgement and order of the High Court and maintain the order passed by the learned trial judge.

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