Delhi Riots: How the order of the Chief Justice of the Delhi HC bypasses a precedent of the Supreme Court

After the protests against the Citizenship (Amendment) Act, 2019 turned violent, several petitions were filed in the Supreme Court and the Delhi High Court.

One such case was the writ petition filed by activist Harsh Mander before the Delhi High Court seeking registration of FIRs against BJP leaders Kapil Mishra, Anurag Thakur and Parvesh Sahib Singh for rioting, unlawful assembly, criminal conspiracy, and promoting enmity between different groups based on religion

A Bench of Chief Justice DN Patel and Justice Hari Shankar, on February 27, passed a strange order superseding, and ignoring the order that was passed the previous day by the Bench of Justices S Muralidhar and Talwant Singh.

Justice Muralidhar had, in his order passed on February 26, noted the following:

“10. ….The police should be guided by the judgment of the Constitution Bench of the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1 and go strictly by the mandate of law. It should seriously consider the consequences that would ensue with every day’s delay in registering FIRs not only on the basis of the video clips of speeches/ actions by anyone, whosoever it may be, which disclose ex facie the commission of an offence, bearing in mind that the rule of law is supreme and that no one is above the law.

11. Mr. Ranjan Special CP, assures the Court that he will himself sit with the CP today itself and view all the videos, not limited to the videos played in the Court but any other videos that might be provided to them and which they perhaps already are in possession of and take a conscious decision which will be communicated to the Court tomorrow itself.”

Justice Muralidhar, whose name had been recommended by the Collegium for a transfer to the Punjab and Haryana High Court, has an impeccable reputation as a fair and honest judge across the Delhi High Court Bar, which had immediately called for a strike when the news of the recommendation to transfer him had been circulated.

Predictably for some, and surprisingly for the others, the recommendation of transfer was finalized and a notification to this effect was circulated overnight by the Ministry of Law and Justice.

When the petition came to be taken up the next day, the seriousness of the issue as expressed by Justice Muralidhar, as well as the judgment of Lalita Kumari, was brought to the attention of the Bench by the arguing senior counsel for the petitioners, Colin Gonsalves. However, the new Bench expressed no remark on the same.

Instead, it appears that the Bench accepted the submission of the Solicitor General - who appeared on behalf of the Delhi Police as well as the Union of India - that as there are numerous videos which surfaced, it would take a final decision after going through the same.

What the Bench headed by Justice Muralidhar held to be a matter of extreme urgency was disregarded, not only while not pushing the Delhi Police for registration of the FIRs, but also by granting four weeks' time to the Central government to file a detailed response to the petition.

During the hearing of the case, no explanation was given by the Solicitor General as to why action cannot be taken against those whose videos have been reviewed, and which prima facie shows that a cognizable offence has been committed.

These videos were shown to the Solicitor General in open court by the Bench during the hearing on February 26. The Solicitor General also did not have any arguments in his support to show how Lalita Kumari’s decision will not be applicable in this instance.

Before getting into what the Lalita Kumari case is all about, it is important to understand what the law is regarding registration of FIRs.

Of the various provisions under which Mander seeks the registration of FIR, all offences alleged, except the offence for criminal conspiracy, are cognizable. This means there are offences where a police officer can make an arrest without requiring a warrant or sanction from the magistrate.

There is a duty cast upon a police officer in charge of a police station under Section 154 of the Criminal Procedure Code, 1973 (CrPC) to write down every information which is given orally to him relating to the commission of a cognizable offence.

This should be read over to the informant, and every such information, whether given in writing or reduced to writing, should be signed by the person giving it.

The substance of such information shall be entered in a book to be kept by such officer. A copy of that information must be handed over to the informant free of cost. This information, that is reduced into writing, is called the First Information Report (FIR).

If the concerned police officer does not record the information, then the informant may send the substance of such information to the Superintendent of Police (SP). If the SP is satisfied that such information discloses the commission of a cognizable offence, he she shall either investigate the case himself or direct an investigation to be conducted by any subordinate police officer.

If, from the information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence, he should immediately send a report to the jurisdictional magistrate. Thereafter, he should proceed to investigate the facts and circumstances of the case, and, if necessary, take measures for the discovery and arrest of the offender.

It is relevant to mention that in the event the SP also fails to act upon the information received, the aggrieved is free to approach the jurisdictional magistrate, who can take cognizance of the case and proceed with the enquiry himself, or refer it to the police for investigation after registering an FIR.

As per Section 41(a) of the CrPC, any police officer may without an order from a magistrate and without a warrant, arrest any person who has or is suspected to have committed a cognizable offence.

In 2013, a Constitution Bench of the Supreme Court (also comprising of the ex-Chief Justice of India Ranjan Gogoi, as well as the present CJI SA Bobde), in Lalita Kumari v. State of UP, examined the question whether a police officer is bound to register a FIR upon receiving any information relating to commission of a cognizable offence under Section 154 of the CrPC or if the police officer has the power to conduct a "preliminary inquiry" in order to test the credibility of such information before registering the FIR?

The case pertained to the protection of a minor child who was kidnapped. The father of the child had given a report to the police officer in charge, who failed to take any action. Thereafter, when he approached the SP, the FIR was finally registered. However, no action was taken for either apprehending the accused or for the recovery of the kidnapped child.

After reviewing various precedents as well as the pre-existing laws, the Supreme Court had no hesitation in holding that the FIR was required to be registered by the concerned police officer immediately upon receiving the information of commission of a cognizable offence.

It observed that if discretion is allowed to the police in the matter of registration of FIRs, it can have serious consequences on public order. It was also noted that for the registration of FIR, the police officer is not supposed to/required to look into the credibility of the information for an arrest to be made under Section 41(a) of the CrPC.

Furthermore, according to the Constitution bench, there are two reasons for registering the earliest information as FIR. One, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment later.

The Supreme Court laid down certain guidelines with respect to the registration of FIR, including the following:

(i) Registration of FIR is mandatory, 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 then a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) Action must be taken against erring officers who do not register the FIR despite receiving an information which discloses a cognizable offence.

(iv) A preliminary inquiry may be made in the following category of cases:

1. Matrimonial disputes/family disputes

2. Commercial offences

3. Medical negligence cases

4. Corruption cases

5. Cases where there is abnormal delay/laches in initiating criminal prosecution

As can be seen from the above, the only exceptional circumstance which gives the option to the police officer to not register FIR is when the information does not divulge the commission of a cognizable offence.

While it is true that the Supreme Court has termed the category of cases mentioned in point (iv) above as “illustrative” and “not exhaustive”, it only leaves room to the police officer to carry out a preliminary inquiry as to whether a cognizable offence has been committed or not. In the Harsh Mander case, the order of February 26 cleared that doubt while recording the ex-facie commission of an offence.

An earlier Supreme Court precedent that is worth mentioning is the three judge bench decision in Aleque Padamsee v. Union of India. The judgment arose out of writ petition that was filed before the Supreme Court, due to the failure of the police to register FIRs against two individuals who had allegedly made speeches that according to the petitioners therein, were likely to disturb the communal harmony in the country and create hatred in the minds of citizens against the persons belonging to minority communities.

In this case also, the Supreme Court had acknowledged the need for filing of the FIR, failing which the aggrieved person could adopt the recourse with the magistrate. The facts of this case appear to be squarely applicable to Harsh Mander’s case.

In view of the above, it is quite surprising how despite the High Court itself arriving at the conclusion that a cognizable offence had been committed, gave the privilege of four weeks to the Central government to file a reply to the petition filed by Harsh Mander without any direction to comply with its earlier directions dated February 26.

The “complexity of the matter” that the Solicitor General informed the court of certainly does not seem to fit in as an exception for not registering the FIR.

If at all the Delhi High Court considers this to be an exceptional circumstance, it cannot do so by overruling a Constitution Bench decision. At best, it could refer the matter to the Supreme Court to take a view.

Therefore, the order dated February 27, passed by the Chief Justice of the Delhi High Court, not only supersedes the order passed on the previous day, but also bypasses a binding precedent set by the Supreme Court.

Lalita Kumari has directed action to be taken against erring officers and the present case is a fit case for such an action in my view. The Delhi High Court has no reason to not follow this settled position of law.

The views expressed by the author in the present article is strictly his personal view or opinion, and do not necessarily reflect the views of Bar & Bench.

About the author: Atul N Menon is an Advocate practicing in the Supreme Court of India.