When a complaint discloses the commission of a cognizable offence while filing an FIR, the arrest cannot be merely done though registration of an FIR is mandatory under section 154 of CrPC and mere allegation of commission of an offence cannot amount to an arrest. This remarkable judgement was passed by the Punjab & Haryana High Court by Hon’ble Mr. Justice Raj Mohan Singh in the matter of Hitesh Bhardwaj versus State of Punjab and others [CRM-M No. 26794 of 2020 (O&M)].
Compulsory registration is requiring of an FIR is not only to ensure transparency in the criminal justice delivery system, but it also ensures judicial oversight as the Police Officer has to inform the Magistrate about lodging of an FIR forthwith in terms of Section 157(1) CrPC. Also the cognisable offence is to be brought before the investigating officer as well as before the Magistrate to maintain a transparent environment.
This court differentiated between preliminary enquiry and an investigation stating that “Preliminary inquiry is different than the investigation. Inquiry is other than a trial which is relatable to a judicial act and not to the steps taken by the Police towards investigation after registration of FIR under Section 154 CrPC. Concept of preliminary inquiry may be a special procedure prescribed under CBI Manual to be read with Section 154 CrPC. Preliminary inquiry is contained in Chapter IX of the Crime Manual of CBI, but the same is not a statute. It has not been enacted by the Legislature, rather the same is an administrative order for internal guidance of the CBI officers.”
The court dictated that preliminary inquiry can be done in cases like matrimony, cases relating to family dispute, offences related to commercial acts, in case of medical negligence, corruption cases, cases which suffer abnormal delay of more than three months in initiating criminal prosecution or reporting the matter to the police without satisfactory explanation.
This court contented that “The Police Officer cannot embark upon any elaborate inquiry to ascertain genuineness or reasonableness of the information and cannot refuse registration of criminal case. It does not lie under the domain of Police Officer to substitute preliminary/detailed inquiry with the investigation of the case, as the investigation can only be done after registration of an FIR.”
The court further stated that “In view of aforesaid legal position, refusal to register an FIR is not in accordance with law. It would be prerogative of the Police to file cancellation of the FIR after investigation in accordance with law. 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.”