Police raids without FIR? Misapplication of Lalita Kumari

In a recent decision, the Karnataka High Court pronounced that a police raid conducted on a dance bar ‘without prior registration of FIR was in breach of the mandatory guidelines laid down in Lalita Kumari’. On that sole ground, the Court proceeded to quash the FIR and all further proceedings. This ruling was not a ‘first of its kind’.

On several past occasions, the Karnataka High Court has consistently applied the ‘Lalita Kumari’ rule to quash criminal proceedings in several other contexts. For instance, where raids were conducted and seizures made based on information that certain person(s) were engaged in, illegal money lending; running a brothel under the guise of a spa; hiring minor boys as labour; selling narcotic drugs; cutting and removing sandalwood trees.

Scheme of the CrPC: Sections 154,156 and 157

Chapter XII of the Code of Criminal Procedure (CrPC) is concerned with the subject of 'information to the police and their powers to investigate'. Section 154 requires the officer-in-charge of a police station to perform three separate functions when he receives ‘information’ concerning the commission of a cognizable offence : (1) if information is given orally, he must (or under his direction) reduce it to a written form; (2) obtain signature of the informant on the said document and then (3) record the substance of the said information in a book maintained for that purpose.

Section 156 confers jurisdiction on the officer to investigate a cognizable case of his own motion, that is, without an order from the magistrate. Section 157 delineates the procedure for investigation. The opening words of Section 157 are extremely important to notice. It says, “if from information received or otherwise”, the officer has reasons to suspect the occurrence of a cognizable offence of which he has jurisdiction to investigate, he shall “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."

‘Information received or otherwise’

While interpreting the opening words of Section 157, the Supreme Court in Union of India v. Ashok Kumar Sharma observed that as far as the word ‘information’ is concerned, it is clearly relatable to the information which has been provided to the officer, within the meaning of Section 154 and the expression ‘or otherwise’ would include cases where the officer acts on his ‘own knowledge’. What does own knowledge connote? Does the knowledge have to emanate suo moto? Can the knowledge be gathered from outside sources? This has been clarified in a recent five-judge decision of the Supreme Court in Mukesh Singh v. State (Narcotic Branch of Delhi). The words ‘or otherwise’ was interpreted to include information gathered from sources like secret information, telephonic messages, information from hospital etc. It is important to remember that the Supreme Court in the said case did not attempt to exhaustively define the list of sources, but it only indicated illustratively sources which can form the basis to investigate a cognizable case within the expression ‘or otherwise’.

Two kinds of FIR

In Lalita Kumari, it was noted that the CrPC envisages ‘two kinds of FIR’. The duly signed FIR under Section 154(1) is registered based on information given by the informant to the concerned officer at the police station. The second kind of FIR could be that which is lodged by the police themselves on any information acquired other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the magistrate instantly.

If information of the commission of a cognizable offence is gathered not through an informant under Section 154, but through other sources under Section 157 (that is, those included under the expression ‘or otherwise’), is it then mandatory for the officer to register an information report under Section 154? Can the police only thereafter proceed to investigate as per the procedure found in Section 157?

As early as in 1944, the Privy Council in Emperor v. Khwaja Nazir Ahmad had occasion to answer this question. It, quite authoritatively, dispelled a commonly held misconception that the recording of an FIR, in all cases, is a sine qua non to enter the next step of investigating a crime. It linked the procedure for commencement of the investigation to the nature and source of information received by the officer. If ‘information’ was received by an informant at the police station, then registration of an FIR was held mandatory. If it was received from any other source, it was not a prerequisite in such an event, to register an FIR before commencing investigation. The observations of the Privy Council are worth extracting:

“But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal P.C., when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under Section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view."

This proposition has been followed by the Supreme Court and High Courts in several subsequent rulings.

The decision in Mukesh Singh also clarifies that when information is acquired from a source other than by way of an informant [that is, under Section 157(1)], there is no imperative requirement for the police to investigate only after lodging of a formal FIR The Court has, through the device of an illustration, elaborated on the steps which the officer must follow upon receipt of the said information. It said:

“Take an example, if an officer in charge of a police station passes on a road and he finds a dead body and/or a person being beaten who ultimately died and there is no body to give a formal complaint in writing, in such a situation, and when the said officer in charge of a police station has reason to suspect the commission of an offence, he has to reduce the same in writing in the form of an information/complaint. In such a situation, he is not precluded from further investigating the case. He is not debarred to conduct the investigation in such a situation. such a police officer is required to reduce the same in writing which subsequently may be converted into an FIR/complaint and thereafter he will rush to the spot and further investigate the matter. There may be so many circumstances like such.”

Unlike under Section 154, the information which an officer acquires of his own knowledge need not be converted into an FIR at the time of its initial receipt, but can be subsequently converted into an FIR after proceeding with initial steps of investigation.

Understanding Lalita Kumari and putting things in perspective

The facts in Lalita Kumari are key to understand the real purport of the judgment and to put things in overall perspective.

On the night of May 5, 2008, six-year-old Lalita Kumari disappeared from near her home. When she did not return, her father reported her as missing with the Loni Police Station, Ghaziabad. After learning a week later that his daughter had been kidnapped, he filed a formal complaint with the Loni Police Station. Since the police did not lodge an FIR, he was forced to take up the matter with the Senior Superintendent of Police, Ghaziabad (SSP). It was only upon the intervention of the SSP that an FIR came to be registered. The complainant alleged that the police refused to investigate and arrest the persons unless they were paid money. It was in the background of the said factual circumstances that a habeas corpus petition under Article 32 came to be filed before the Supreme Court.

The five-judge entered upon a reference to decide the following question of law:

“Whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?”

The Court, speaking through the Chief Justice P Sathasivam, held that registration of an FIR was a mandatory obligation of the officer if information received under Section 154 revealed the commission of a cognizable offence. Where information did not disclose a cognizable offence, a preliminary inquiry could be conducted "only to ascertain whether the information reveals a cognizable offence."

Indisputably, Lalita Kumari did not concern itself with cases where police received information of cognizable crimes through other sources [under Section 157(1)]. The question for consideration was limited in its scope to the context in which police received ‘information’ from an informant under Section 154. And this fact makes all the difference.

Hence, it would be an unacceptable proposition to extend the logic of Lalita Kumari to situations where the police have investigated (through raids, seizures and arrests) without registering an FIR, by acting on information acquired through other sources.

Conclusion

Now I come back to the question I set forth to examine initially. Can it be said that police raids/search operations conducted based on credible intelligence/source information without lodging of an FIR is in breach of Lalita Kumari? The answer is an unhesitating no. The decisions of the Karnataka High Court noticed above have, unfortunately, erred in failing to make a distinction between information acquired by the police under Section 154 and Section 157 respectively, and in uniformly applying the logic in Lalita Kumari to both sets of information.

It is essential that information about the commission of a cognizable offence given in person at the police station and information about the cognizable offence acquired from other sources are treated on different pedestals. It is hoped that the decision in Lalita Kumari is applied only in the former situation and that the anomaly in jurisprudence is set right soon.

Angad Kamath is an advocate practising at the High Court of Karnataka.