FIR and transfer of investigation: The legal issues in the Sushant Singh Rajput case

Amidst the public outcry over the Mumbai Police’s lack of incisiveness and unreasonable dilatoriness, as well as the legitimacy of the Bihar Police’s FIR in Sushant Singh Rajput’s case, a look at the law as propounded by the Supreme Court of India may help to better appreciate the prevalent scenario.

While the Mumbai Police has examined over 40 witnesses without lodging an FIR, the Bihar Police registered an FIR in Patna and reached Mumbai to investigate. The Mumbai Police, as well as the Home Minister of Maharashtra, has declared it as a case of suicide.

A police officer is empowered to ‘investigate’ into these classes of cases:

(a) Where first information under Section 154 is received relating to the commission of a cognisable offence;

(b) Where information is received, under Section 155 relating to the commission of a non-cognisable offence and an order for investigation in respect thereof has been obtained from the competent Magistrate:

(c) Where information is received of a suicide or as to the killing of a person by another or by an animal or by machinery or by accident or having died under circumstances raising a suspicion that an offence has been committed. Such an investigation is primarily directed to ascertain the cause of death, falls under Section 174, and is called inquest.

In Sushant’s case, the Mumbai Police investigation was not set into motion through the first two modes. Thus, it squarely fell under Section 174.

Sections 174, 175 and 176 of the Code of Criminal Procedure, 1973 (CrPC) provide for magisterial inquiries into cases of unnatural death. The system is in place to ensure that unexplained deaths do not remain unexplained and that the perpetrator is tried by a competent court established by law.

The proceedings Under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death, and if so what is the apparent cause of the death. Details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174 of the Code. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report.

The procedure under Section 174 is for the purpose of discovering the cause of death, and the evidence taken is very short. In George and Ors. v. State of Kerala and Anr, it has been held that the investigating officer is not obliged to investigate, at the stage of inquest, or to ascertain as to who were the assailants. A similar view has been taken in Suresh Rai and Ors. v. State of Bihar . Therefore, Sections 174 and 175 of the Code afford a complete Code in itself and are entirely distinct from the "investigation" under Section 157 of the Code. Under the latter provision, if an officer in-charge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall proceed in person to the spot to investigate the facts and circumstances of the case.

The investigation under Section 174 is not an investigation upon receipt of information relating to the commission of a cognizable offence within the meaning and import of Section 154 of the Code (Manoj Kumar And Ors v. State Of Chhattisgarh). The inquest report is supposed to be prepared on the spot with two or more respectable inhabitants of the neighbourhood and is to be submitted to the District Magistrate or Sub Divisional Magistrate. The inquest report normally would not contain the manner in which the incident took place or the names of eye-witnesses as well as names of accused persons. The basic purpose of holding an inquest is to report regarding the cause of death, namely whether it is suicidal, homicidal, accidental etc. The witnesses are not required to be examined.

In Ashok Kumar Todi v. Kishwar Jahan and Ors., it has been held that the inquiry/investigation under Section 174 read with Section 175 of the Code can continue only till the outcome of the cause of the death. Depending upon the cause of death, the police has to either close the matter or register an FIR. In that case, as per the post mortem report dated 22.09.2007, the cause of death of Rizwanur Rahman was due to the effect of ten injuries on the body and which were ante mortem in nature. In such circumstances, the proceedings under Section 174 of the Code were not permissible beyond 22.09.2007 and registration of an FIR was the natural outcome to ascertain whether the death was homicidal or suicidal.

Therefore, in Sushant's case, since there was no FIR registered by the Mumbai Police, the question of a second FIR (the FIR registered by the Bihar Police being the only existent FIR) and applicability of TT Anthony’s case does not arise, as decided in Manoj Kumar Sharma.

Secondly, it can be safely concluded that the ongoing investigation by the Mumbai Police is under Section 174 for the purpose of ascertaining whether the death is natural or unnatural.

Therefore, it belies legal logic as well as procedure established by law as to how the Mumbai Police, which was ONLY required to reach the spot where the deceased had been found and write up an inquest report in the presence of two or more respectable persons from the neighbourhood, continued to investigate under Section 174 (after examination of more than 40 persons) for more than a month when the proceedings under Section 174 are not permissible once the post mortem report is out.

Arguendo, if the procedure adopted by the Mumbai Police is indeed correct in cases of suicide, a similar investigation was imperative even in the case of Disha Salian, who also apparently committed suicide a few days prior to Sushant. The Mumbai Police has no answer as to why the procedures adopted are different in two similar cases of alleged suicide.

The other legal tangle is whether the Bihar Police could have reached Mumbai to investigate.

In Satvinder Kaur’s case, the Supreme Court stated that the High Court had committed a grave error in accepting that the investigating officer had no jurisdiction to investigate the matters or the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. It held that at the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the officer of particular police station would not have territorial jurisdiction.

In Rasiklal’s case, it was held that the without conducting an investigation, it was improper on the part of the investigating agency to forward its report with the observation that it did not have jurisdiction and that the investigation should be transferred to the concerned police station in Mumbai.

Both these cases are prior to the introduction of the concept of ‘Zero FIR’ in 2013. As explained in the case of Bimla Rawal by the High Court of Delhi, if at the time of registration of FIR itself, it is apparent on the face of it that crime was committed outside the jurisdiction of the police station, the police, after registration of a Zero FIR, should transfer the FIR to the relevant police station for investigation.

The issue is now academic, since the Bihar government has submitted before the Supreme Court that it has agreed to transfer the case to the Central Bureau of Investigation (CBI).

As regards Rhea Chakraborty, accused in the Bihar Police FIR seeking investigation by the Mumbai Police, the Supreme Court has long settled the issue in In Narmada Bai v. State of Gujarat and Ors. In that case, it was held that the accused persons do not have a say in the matter of appointment of investigating agency and cannot choose as to which agency must investigate the offence committed by them. Recently, a three-Judge Bench in E Sivakumar v. Union of India and Ors reiterated the same.

The author is an Advocate practicing in the Supreme Court of India.