FIR a must when a cognizable offence is disclosed, but arrest of accused should not be automatic: Punjab and Haryana High Court

The Punjab & Haryana High Court has reiterated the principle of law that the registration of an FIR is mandatory when a complaint discloses a cognizable offence. (Hitesh Bhardwaj v. State of Punjab)The principle was famously laid down in Lalita Kumari v. Government of Uttar Pradesh..Relying on this dictum, the Punjab and Haryana High Court recently reiterated, ."Registration of FIR is mandatory under Section 154 Cr.P.C., if the information discloses commission of a cognizable offence. No preliminary inquiry is permitted in such a situation."Punjab and Haryana High Court.Justice Raj Mohan Singh further emphasised that this is not a matter of discretion. As noted in the judgment, ."... there is no reason that there should be any discretion or option left with the Police to register or not to register an FIR when information is given about commission of a cognizable offence. The requirement of Section 154 Cr.P.C., is only that the report must disclose the commission of a cognizable offence. Receipt of such information would be sufficient to set the Investigating Agency into action.".The Court further observed that,“Non-registration of criminal case leads to dilution of rules of law and lead to definite lawlessness which is detrimental to the society as a whole. Even the action against erring police officer is warranted in such circumstances in which FIR is not registered in respect of cognizable offence.”.However, the Court cautioned against the automatic arrest of the accused, when an FIR was registered. As noted in the judgment, ."The arrest of the accused is not automatic on registration of an FIR. The arrest cannot be made in a routine manner on a mere allegation of commission of an offence... The arrest of person and registration of FIR are not directly linked as both have two concepts, operating under different parameters. Misuse of aforesaid concept would result in action against the Police Officer under Section 166 IPC."Punjab and Haryana High Court.The High Court added, ."It would be prudent for a Police Officer not to arrest a person without a reasonable satisfaction after some investigation as to the genuineness and bona fide of a complaint and reasonable belief in the context of complicity of the accused." .The Bench also pointed out that the Police can file for the cancellation of the FIR after investigation in accordance with law, if required. ."In such eventuality, the complainant would be having a right to file protest petition on receipt of notice from the Court. Thereafter the Court may accept the cancellation report or proceed with the case as a criminal case on receipt of preliminary evidence or may pass any other order in accordance with law including further investigation", the High Court enunciated..The Court was hearing a plea filed by one Hitesh Bhardwaj whose complaint pointing to his brother’s culpability in their mother’s death was not registered as an FIR..Hitesh approached the police upon suspicion that his brother Nitesh Bhardwaj killed their mother in March this year, despite her death being attributed to cardiac arrest..Pertinently, his brother Nitesh Bhardwaj had earlier been named an accused in the death of their father in 2013..The two were at loggerheads over property and the terms of their mother’s will..After a 4-month preliminary inquiry revealed no cause to suspect unnatural death, the Police refused to register the offence..Aggrieved, Hitesh approached the High Court praying for the registration of an FIR to launch investigation..Hitesh’s Counsel Advocate Abhinav Sood contended that:The failure to file an FIR violated the principle propounded in Lalita Kumari v. State of UP.Other considerations such as, the falsity of the information, genuineness, or the credibility of the information could be ascertained only after an investigation commenced.A Preliminary Inquiry was not permissible upon a complaint of murder. It was permissible only for certain kind of offences or when there was unnatural delay or laches in filing a complaint. In such a case, a time-bound preliminary inquiry was to be completed within 7 days. The Inquiring Officer was required to record reasons for the delay in the General Diary, if there was a delay..The Court accepted the submissions on Preliminary Inquiries, holding the same to be impermissible in a case of this nature..Where the police refused to register an FIR, a complainant could:Approach the Senior Superintendent of Police with a written representation, and if this yielded no response,Approach the Magistrate concerned with their grievance..With these observations, the Court directed the FIR to be registered in this case. The petition was disposed of on these terms..Read the Judgment