Not necessary for FIR to be registered immediately for investigation to be valid: Karnataka High Court

The Karnataka High Court recently held that it is not necessary for a first information report (FIR) to be registered immediately after receiving information about a cognizable offence, for the investigation to be valid [Iqbal Ahmed v. CBI SCB]..Single-judge Justice Sreenivas Harish Kumar, therefore, upheld the conviction of a person accused of forging passports, allegedly for the purpose of human trafficking."It is not necessary to register FIR whenever a police officer receives information over the phone or in some other way about an offence which is likely to take place. Rather it is the duty of the police officer to take immediate measures to prevent the crime from happening, or if committed in his presence, to take action according to Section 41 of CrPC, FIR may be registered later on," the Court said. .The accused petitioner was convicted and sentenced under Sections 419 (cheating by personation) 420 (cheating and dishonestly inducing delivery of property) 468 (forgery for purpose of cheating) and 471 (using as genuine a forged document or electronic record) of the Indian Penal Code (IPC) and Section 12(1)(b) (false information to obtain passport) of the Passports Act, 1967. He was arrested after the police had received information that some persons were involved in the creation of forged and fabricated passports for the purpose of human trafficking. An investigation was conducted and petitioner was convicted of the offences. .The petitioner approached the Court arguing that the prosecution had failed to prove the case, and other contentions, including: - That the FIR was not registered soon after receiving information about the commission of cognizable offences and therefore the entire investigation is vitiated;- The officer who lodged the FIR himself conducted a major part of the investigation and therefore the entire investigation is vitiated;.- As the entire investigation was done without following the procedure established by law, the conviction of the petitioner is against Article 21 of the Constitution of India. The contentions were examined by the Court as follows: .1. That the FIR was not registered soon after receiving information about the commission of cognizable offences and therefore the entire investigation is vitiated.It was argued on behalf of the petitioner that as per the judgement of the Supreme Court in Lalita Kumari v. Govt of Uttar Pradesh, as information about the cognizable offence was received when the police officer was in a police station, an FIR should have been registered immediately. Since this was not complied with, the process under law had not been followed. The court did not accept this contention, noting that the judgement of Lalita Kumari v. Govt of Uttar Pradesh must be properly understood. Whenever information discloses commission of a cognizable offence, it is mandatory to register an FIR. It means that when the information is given to a police officer, the offence should already have been committed. Registration of an FIR is a mandatory requirement to rule out the possibility of improvements and exaggeration, the Court observed. .Further, the evidence did not disclose definite and unambiguous information that an offence had been committed, the Court noted. The police officer received information that some persons were running a racked of forged passports for the purpose of human trafficking, after which he secured panchas and stopped and searched the accused. However, he had not received information that an offence had already been committed before he proceeded to take action based on the informants message. "Mere securing of panchas before going to spot does not lead to an inference that the information was definite," the Court said. While referring the judgement of the Supreme Court in Mukesh Singh v State (Narcotic Branch of Delhi), "It is only after recoveries are effected and/or arrests made, information regarding commission of a cognizable offence crystallises.", the court said that it is not necessary to register an FIR whenever a police receives information about an offence which is likely to take place, and "Rather it is the duty of the police officer to take immediate measures to prevent the crime from happening, or if committed in his presence, to take action according to Section 41 of CrPC, FIR may be registered later on," the Court stated. .2. The officer who lodged the FIR himself conducted a major part of the investigation and therefore the entire investigation is vitiated.The petitioner argued that the police officer lodged the FIR after completing the panchanama, and he himself undertook the investigation. Although the investigation was handed over to the CBI at a later stage, a major part of it was conducted by the police officer. The court noted that the informant police officer cannot undertake an investigation only if he has personal interest or a bias against the accused, which has to be demonstrated. "If the investigation is free of bias and prejudice, there is nothing wrong in the same officer continuing the investigation after lodging FIR," the Court said. .3. As the entire investigation was done without following the procedure established by law, the conviction of the petitioner is against Article 21 of the Constitution of India.The petitioner submitted that the investigator did not follow the procedure established under law and it was thus a violation of Article 21. Regarding this contention, the Court said Article 21 applies when the personal liberty of a person is deprived without following due procedure. However, "there is a lot of difference in no procedure being followed and infraction in procedure. While following procedure, if a mistake occurs or if there is an infraction, it cannot be said that personal liberty is affected unless the person complaining of violation of Article 21 demonstrates as to how his liberty is affected substantially or his interest is prejudiced affecting liberty.".Moreover, an investigation involves various stages and many aspects will emerge during an investigation, the court noted. It is natural for an accused with a seasoned lawyer to find faults in an investigation, but courts must be circumspect when such issues are raised, the Court said while dismissing the petition. .Senior Advocate Hashmath Pasha represented the petitioner and Advocate P Prasanna Kumar represented the respondent. .[Read Order]