TMI Blog2020 (1) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... party. Since only the stated question was referred to the Full Bench the file of the writ petition is sent back for listing the same before the appropriate Bench having the roster - Reference is answered accordingly. - WPCR No. 121 of 2017 - - - Dated:- 30-1-2020 - Prashant Kumar Mishra, Rajendra Chandra Singh Samant and Gautam Chourdiya, JJ. For the Appellant : Shailesh Ahuja, Advocate. For the Respondents : S.C. Verma, Advocate General, Ghanshyam Patel, Govt. Advocate and Vikram Sharma, Dy. Govt. Advocate. ORDER Prashant Kumar Mishra, J. 1. The matter has been posted before the Full Bench for having an effective pronouncement on the following question formulated by the learned Single Judge (Sanjay K. Agrawal, J.): Whether in a writ petition preferred under Article 226/227 of the Constitution of India seeking direction for registration of FIR and investigation against the accused persons alleged to have committed the cognizable offence(s), the said accused persons are necessary or proper party and they are required to be noticed and heard before issuing any such writ/direction, if any? 2. The writ petition was preferred for seeking a directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6. While referring the question of general importance for having an effective pronouncement by a larger Bench the learned Single Judge seems to be guided by the observations made by the Supreme Court in Udit Narain Singh Malpaharia (supra), Prabodh Verma (supra) Sadhu Bhagwandas Durlabhram (supra) and the Division Bench of this Court in Arun Singh Thakur (supra). In these matters, the Supreme Court and the Division Bench of this Court have held that the High Court should not hear dispose of writ petition under Article 226 of the Constitution of India without hearing the persons who would be vitally effected by its judgment, however, the issue at the stage of registration of FIR is somewhat different than an issue where the person against whom the Court is approached would be adversely effected as any of his vested or statutory rights would be taken away or jeopardised. The prospective accused is not entitled to be heard at the stage of investigation, which is different than prosecution. 7. Registration of FIR and the power of police to investigate a cognizable offence is the statutory obligation of the concerned police as has been dealt with in Chapter XII from Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence. xxx xxx xxx 119) Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable 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 as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less otherwise provided under the law. 96. True, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure - such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and to his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours - which are all in conformity with the 'Right to Life' and 'Personal Liberty' enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XX XXX XXX 50. There is no provision in Cr.P.C. where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialized agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners. 13. In Anju Chaudhary v. State of Uttar Pradesh and Another (2013) 6 SCC 384 the Supreme Court held thus in paras 30 to 34: Is an accused entitled to hearing pre-registration of an FIR? 30. Section 154 of the Code places an unequivocal duty upon the police officer in char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where the Officer In-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be the predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons. Firstly, the Code does not provide for any such right at that stage. Secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in the case of Union of India v. W.N. Chadha clearly spelled out this principle in paragraph 98 of the judgment that reads as under: 98. If prior notice and an opportunity of he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and the fact that the very purpose and object of fair investigation is bound to be adversely affected if hearing is insisted upon at that stage, clearly supports the view that hearing is not any right of any suspect at that stage. 34. Even in the cases where report under Section 173(2) of the Code is filed in the Court and investigation records the name of a person in column (2), or even does not name the person as an accused at all, the Court in exercise of its powers vested under Section 319 can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law. (Emphasis supplied) 14. The legal proposition that if the order to be passed behind the back of the party was to entail in some civil consequence than the said party is required to be heard by the Writ Court, as has been mentioned by the learned Single Judge in the reference order, has also been considered by the Supreme Court in its recent judgment rendered in E. Sivakumar v. Union of India and Others (2018) 7 SCC 365 to hold thus in para 11: 11. Our attention was invited to the observations made in para 73 in State of Punjab, which in turn adverts to the exposit ..... 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