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TMI Blog2013 (1) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... M.P. filed Under Section 482 of Code of Criminal Procedure to quash the FIR proceedings is that Sub-section (2) of Section 154, Code of Criminal Procedure contemplate that a copy of such information recorded shall be issued forthwith, free of cost to the informant, is a mandatory requirement. On the basis of the said legal contention the Respondent has sought for quashing the same. The said legal contention is accepted by the High Court and recorded a finding on the basis of the perusal of the information sought to have been received by the Appellant herein is bald in the sense that application Under Section 154, Code of Criminal Procedure has no place nor could it be said that the case has been registered in accordance with law. Therefore, it came to the conclusion that it is not a case registered in accordance with law and such a case is registered, deviating from the procedure contemplated Under Section 154, Code of Criminal Procedure. The same is bereft of the force of law and the same is non-est in law and for this reason the High Court has quashed the FIR. The correctness of the said findings assigned by the learned Judge is under challenge in this appeal raising the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the procedure required to be followed for registration of FIR which states that on receipt of a complaint or after verification of information or on completion of a Preliminary Enquiry taken up by CBI if, it is revealed that prima facie a cognizable offence has been committed by a person and the matter is fit for investigation to be undertaken by CBI, a First Information Report should be recorded Under Section 154, Code of Criminal Procedure and investigation shall be taken up. While considering the registration of an FIR, it should be ensured that at least the main offence(s) have been notified Under Section 3 of the Delhi Special Police Establishment Act, 1946. Para 10.2 further provides that while registering an FIR the legal requirements of Section 154, Code of Criminal Procedure should be fully complied with. Further learned senior Counsel has placed reliance upon the plethora of judgments of this Court in justification of the appeal to set aside the impugned order passed by the High Court and placed strong reliance upon the judgment of this Court in the case of State, represented by Inspector of Police Vigilance and Anti Corruption, Tiruchirapalli, Tamil Nadu v. V. Jaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. On the other hand, learned Counsel Mr. S.D. Dwarakanath, appearing on behalf of the Respondent, has sought to justify the same placing strong reliance upon paragraph 57 of the aforesaid three judge bench decision in Lalita Kumari v. State of U.P. (supra) in justification of awaiting the decision by the larger Bench wherein three Judge bench decision of this Court in the aforesaid case after referring to the seven Judge bench decision of the Constitutional Bench in the case of Maneka Gandhi v. Union of India, reported in AIR 1978 SC 597, has held that the procedure required to be followed Under Section 154, is mandatory to be followed. This Court in the said case has held that if the mandatory procedure Under Section 154, Code of Criminal Procedure is not followed it will be in violation of Article 21 of the Constitution of India. Therefore, he submits that the impugned order may not be interfered with by this Court. In view of the undisputed facts that the mandatory procedure Under Section 154, Code of Criminal Procedure is not followed by the Appellant herein thereby the High Court of Madras has rightly assigned the reason and held that non compliance of the mandatory provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant Under Section 302 read with Section 34 Indian Penal Code and as no prejudice has been shown to have been caused to them, the question of interference could not arise. 9. In the instant case, learned Counsel for the Respondent is not able to show any prejudice caused to him for not supplying the copy of the FIR to the informant. 10. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The law which creates public duties is directory but if it confers private rights it is mandatory. 11. A Constitution Bench of this Court, in State of U.P. and Ors. v. Babu Ram Upadhya AIR 1961 SC 751, considered the issue and held as under:- For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y much furthering the object of the Act, the same would be construed as directory. 16. In Ramchandra Keshav Adke v. Govind Joti Chavare and Ors. AIR 1975 SC 915, this Court held that where "the imperative language, the beneficent purpose and importance of the provisions for efficacious implementation of the general scheme of the Act, all unerringly lead to the conclusion that they were intended to be mandatory, neglect of any of those statutory requisites would be fatal." 17. The law on this issue can be summarised that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. But the circumstance that Legislature has used the language of compulsive force is always of great relevance. If we apply this test to the provisions of Section 154 Code of Criminal Procedure, we reach inescapable conclusion that the provisions of Section 154(2) are merely directory and not mandatory as it prescribes only a duty to give the copy of the FIR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in case the officer against whom information is being developed is of a rank against whom only such officer can order registration of a case. 8.27 The source information once developed must be submitted in writing giving all available details with specific acts of omissions and commissions and copies of documents collected discreetly. The internal vigilance enquiries or departmental enquiry reports should normally not be used as basis for submitting the Source Information. The SP concerned after satisfying himself that there is prima facie material meriting action by CBI and further verification is likely to result in registration of a regular case, would order verification if it falls within his competence. In the cases which are within the competence of higher officers, he will forward his detailed comments to the DIG and obtain orders from superior officer competent to order registration. The verification of SIRs must begin only after the Competent Authority has approved its registration. At this stage a regular SIR number will be assigned to the SIR which will also be entered in the Source Information sub-module of CRIMES Module with all other details. 8.28 The SIR may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice officer received a detailed information of the offences alleged to have been committed by the accused with necessary particulars, proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records and submitted a report of the said acts. The said acts constituted an investigation within the meaning of the definition of 'investigation Under Section 4(1) of the Code of Criminal Procedure as explained by this Court. The decisions cited by the learned Counsel for the State in support of his contention that there was no investigation in the present case are rather wide off the mark. In Nandamuri Anandayya, In re [AIR 1915 Mad 312] a Division Bench of the Madras High Court held that an informal enquiry on the basis of a vague telegram was not an investigation within the meaning of Section 157 of the Code of Criminal Procedure. In Rangarujulu Naidu, In re AIR 1958 Mad 368 Ramaswami, J. of the Madras High Court described the following three stages a policeman has to pass in a conspiracy case: ...hears something of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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