preliminary inquiry

Case BriefsHigh Courts

Gujarat High Court: A Bench of Sonia Gokani, J., while hearing the grievance of the petitioner regarding non-filing of FIR, ordered the authorities to do a necessary investigation after lodging FIR.

A writ petition was made by the petitioner who was aggrieved by non-registration of the first information report on the basis of complaint given in writing. S.D. Mansur, learned counsel for the petitioner contended that the offence being a cognizable offence doesn’t take away his right to lodge the FIR. Thus an application for appropriate order of the court was made by the petitioner.

Jirga Jhaveri, the learned counsel for the respondent, on the other hand, submitted that though a cognizable offence is made out, his first information report was not registered.

The Court after hearing the party relied on the Judgment of Lalita Kumari v. State of U.P., (2014) 2 SCC 1, which mandates that registration of FIR is mandatory under Section 154 of Code of  Criminal Procedure, 1973.  The Court held that the police officer cannot avoid his duty of registering the offence if the cognizable offence is disclosed and the action should be taken against erring officer who does not register the FIR. The court further held that in order to ascertain the information regarding the cognizable offence it was important to conduct the preliminary inquiry. The court thus instructed the respondents to lodge the report and conduct the preliminary inquiry within one week and further instructed the petitioner that if the action is not taken, it shall be open to him to approach the higher officials, as provided under Section 154(3) of the Code of Criminal Procedure, 1973.[Avdhesh Bhawaniprasad Yadav v. State of Gujarat, Special Criminal Application No. 930 of 2019, Order dated 07-02-2019]

Case BriefsSupreme Court

Supreme Court: Dealing with the scope of initiating the proceedings under Section 340 CrPC, the Court said that the mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 IPC but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. It was further added that even after the above position has emerged, the court has to form an opinion that that such an inquiry is required in the interests of justice and appropriate in the facts of the case.

Explaining the provision under Section 340 CrPC, the Court said that there are two pre conditions for initiating proceedings under Section 340 CrPC:

  • materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-Section (1) of Section 195 of the CrPC and
  • (ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.

The bench of Kurian Joseph and R.F. Nariman, JJ said that in the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 of the CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. [Amarsang Nathaji v. Hardik Harshadbhai Patel, 2016 SCC OnLine SC 1316, decided on 23.11.2016]