Supreme Court Ruling in Sahara-Birla Papers Case Ignores a Vital Precedent

If the Supreme Court bench had relied on the precedent set by a constitution bench in 2013, it would not have insisted that the evidence – the Sahara-Birla diaries – be cogent in order to qualify for investigation.

Supreme Court of India. Credit: Reuters

Supreme Court of India. Credit: Reuters

On January 11, the Supreme Court bench of justices Arun Mishra and Amitava Roy heard the counsel for common cause, Prashant Bhushan and Shanti Bhushan, and Attorney General Mukul Rohatgi at length on the limited question of whether the Sahara-Birla payoff documents, which surfaced during the Income Tax Department’s raids, suggested the commission of cognisable offences, and therefore, required investigation by the police.

Although the bench dismissed the petitioner’s plea for an impartial probe on the grounds that the evidence that had surfaced was not credible and cogent, it is indeed surprising that the two-judge bench found it expedient to offer a reasoning that is completely inconsistent with the five-judge constitution bench’s judgement in Lalita Kumari vs State of Uttar Pradesh, delivered in 2013.

If the two-judge Supreme Court bench had relied on the constitution bench’s decision in Lalita Kumari, it would not have insisted that the prima facie evidence, which had surfaced in the form of the documents during the raids, must be cogent – that is, convincing – in order to qualify for investigation.

Although the bench’s order is yet to be uploaded on the Supreme Court’s website, its dictation was duly noted by those present in the court on that day, leaving no doubt that the bench did not follow Lalita Kumari in letter and spirit.

Lalita Kumari case

Lalita Kumari was a minor girl who was kidnapped and her father, Bhola Kamat, filed a writ petition seeking her protection. He had submitted a written complaint to the police, who did not take any action on it. Although a FIR was subsequently filed, no steps were taken to apprehend the accused or recover the minor girl.

Bhola Kamat was thus aggrieved by the delayed filing of the FIR and the continued inaction of the police. A two-judge bench, which first heard the case in 2008, noticed the disparity in the filing of FIRs by police officers on a case-to-case basis across the country. After making all states and union territories parties to the case, the bench found that there were conflicting precedents on whether the police was obliged to register a case merely upon receiving information about the commission of a cognisable offence. The matter was then heard by a three-judge bench, which in turn referred it to a constitution bench of five judges.

What did the five judges hold?

The question before the five judges was exactly similar to the one before the two-judge Supreme Court bench on January 11 – whether the police was bound to register a FIR in case it found the information it received not cogent enough.

The counsel opposing the registration of FIRs by the police if the information is not cogent enough, argued that the insertion of Section 166A in the IPC in 2013, vide Criminal Law (Amendment) Act, indicates that the registration of FIRs is imperative and police officers have no discretion in the matter with respect to the offences specified in that section. Therefore, it was argued by the counsel for Maharashtra, Shekhar Naphade, that the legislature accepts that as far as other cognisable offences are concerned, the police has discretion to hold a preliminary inquiry if there is doubt about the correctness of the information.

The Supreme Court, however, held that the intention of the legislature in inserting Section 166A was to tighten the already existing provisions to provide enhanced safeguards to women and to expressly punish police officers for their failure to register FIRs in these cases.

If any information disclosing a cognisable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1) of the Code of Criminal Procedure (CrPC), the police officer has no other option but to enter the substance thereof in the prescribed form, that is to register a case on the basis of such information. The provision of Section 154 of the CrPC is mandatory and the concerned officer is duty-bound to register the case on the basis of information disclosing a cognisable offence, the bench held.

The object of using the word “shall” in the context of Section 154(1) of the CrPC is to ensure that all information relating to all cognisable offences is promptly registered by the police and investigated in accordance with the provisions of law, the bench further held.

For “cognizable offences”, a duty has been cast upon the police to register FIRs and conduct investigations except as otherwise permitted specifically under Section 157 of the CrPC. If a discretion, option or latitude is allowed to the police in the matter of registrations of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality, the bench had held.

The two-judge Supreme Court bench ought to have read only paragraph 64 of Lalita Kumari, which clarifies its misgiving. The constitution bench held as follows:

“The legislature has consciously used the expression “information” in Section 154(1) of the Code as against the expression used (in Section 41 (1)(a) and (g)) for arresting a person without warrant is “reasonable complaint” or “credible information”.

“The expression under Section 154(1) of the Code is not qualified by the prefix “reasonable” or “credible”. The non
qualification of the word “information” in Section 154(1) unlike in Section 41 (1)(a) and (g) of the Code is for the reason that the police officer should not refuse to record any information relating to the commission of a cognizable offence on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness or credibility of the said information is not a condition precedent for the registration of a case.”

The Supreme Court held in catena of cases that the reasonableness or credibility of the information is not a condition precedent for the registration of a case.

On January 11, the two-judge bench showed extraordinary concern for the survival of democracy, if high constitutional functionaries like the prime minister or chief ministers are subjected to the registration of FIRs against them on substantiated allegations.

In Lalita Kumari, the constitution bench was alive to this possibility. It held that a police officer can foreclose an FIR before an investigation under Section 157 of the CrPC if it appears to him that there is no sufficient ground to investigate the same. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the CrPC seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR that is mandatorily registered on receiving information relating to the commission of a cognisable offence. As a result, the apprehension of misuse of the provision of mandatory registration of FIRs is unfounded and speculative in nature, the constitution bench had reasoned.

The bench, however, made certain exceptions to this rule.

If no cognisable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining whether a cognisable offence has been committed.

If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR, the bench elaborated further in Lalita Kumari.

The scope of preliminary inquiry – which has to be time-bound – is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognisable offence.

During the hearing on January 11, the attorney general contended that the documents did not even suggest a cognisable offence, thus suggesting that the Lalita Kumari test would not apply to the facts of this case. Which offence falls under the category of cognisable offences and which falls under the category of non-cognisable offences can be determined as per the classification given in the First Schedule of the CrPC.

In case there is a genuine doubt as to whether the Sahara-Birla documents reveal the commission of cognisable offences, the Supreme Court could have directed the police to conduct a preliminary enquiry as to whether the documents suggest the commission of cognisable offences, and if so, consider the registration of a FIR. That would have been consistent with the larger bench’s ruling in Lalita Kumari.

Join The Discussion