SHORT NOTE ON LEGAL OPINION
Jyoti is in matrimonial disharmony. She has lodged the complaint against her husband & in laws for cruelty under section 498A, which is a cognizable offence. But the police did not register the F.I.R..
Can police withhold F.I.R. for the preliminary enquiry.
Inquiry means every enquiry other than trial conducted under the Code of Criminal Procedure by a magistrate or Judge under Section 2 (1) (g) of Code of Criminal Procedure. The provision of inquiry by magistrate into cause of death, where:
Any person dies or disappear
Rape is alleged to have been committed on any women
In the case of Manubhai Ratilal Patel V. State of Gujrat & others (2013) Supreme Court held that investigation by police is neither any inquiry not trial. The provision for investigation preliminary inquiry mentioned under section 157 of Code of Criminal Procedure, from the information received by the police In Charge of Police station to a report of the same to a magistrate empowered to take the cognizance of such offence. if the case is not serious in nature, police need not to proceed to make investigation. The power of magistrate to hold investigation on receiving report of cognizable offence may direct investigation under section 159 of Code of Criminal Procedure. Section 200 of Code of Criminal Procedure stated the provision for the examination of complaint file in the court instead of Police station. The court has the power to conduct inquiry into any offence in relation to the proceeding in that court or in respect of a document or evidence produced in the court under section 340 of Code of Criminal procedure.
WITH REFERENCE TO INDIAN CONSTITUTION:
There are some Article that explain about the supremacy of the central law making body Parliament and virtue of Law declared by the Supreme Court of India. The law made by Parliament shall be prevailed over law made by the state legislature under Article 254 (1) of the Constitution. Under Article 141 of the constitution law declared by the Supreme Court to be binding on all the Courts within the territory of India.
In the case of Abhijit Pawar V. Hemant Madhukar Nimbalkar & another (2017) & Pepsi Food Ltd. & another V. Special Judicial Magistrate & others (1998) Supreme Court held that holding enquiry is Mandatory further reflect application of mind in case of filing complaint in the Court.
The concept of Preliminary enquiry comes from the ruling of the Supreme Court. In the case of Lalita Kumari V. State of U.P. (2013) a bench of 5 judges in the Supreme Court held that registration of F.I.R. is mandatory and no preliminary enquiry is permissible in the case of Cognizable offences. Preliminary enquiry may be allowed to be conduct which will depend upon the facts of the cases.
There is no hard & fast rule to determine which case undergoes Preliminary enquiry but there are some cases where preliminary enquiry is mandatory. In the case of Matrimonial disputes or Family disputes referring to Preeti Gupta & Another V. State of Jharkhand (2010) where Supreme Court remark that there are number of cases which has been filed with mala fide intention & with oblique motive. Law commission of India Report No. 243 stated that there are multiple time people misusing section 498A of Indian Penal Code, 1860 with alter motive and personal advantage. In order to protect the innocent preliminary enquiry shall be conduct by the Police. Court decide whether F.I.R. is mandatory or Preliminary enquiry shall be conducted. Preliminary enquiry shall be done on the discretion of police. F.I.R. in the cases of commercial offences referring to V.Y. Jose V. State of Gujarat (2008) Supreme Court held that Disputes related to civil offences should not be allowed to be the subject matter of Criminal offences. In cases of Ramdev Food Products Pvt. Ltd. V. State of Gujarat (2015) Supreme Court held that commercial offences has been put in the category of cases where F.I.R. may not be warranted without enquiry. In the case of Medical Negligence referring to Jacob Mathew V. State of Punjab (2005) Supreme Court held that there is a need for the protecting Doctors from frivolous or unjust prosecutions. The investigation officer should conduct enquiry before proceeding & executive guidelines needed to be framed in consultation with Medical Council of India. In the cases of corruption referring to Shashikant V. CBI (2006) Supreme Court held that preliminary enquiry shall be conducted before proceeding by the CBI manual. F.I.R. in the cases of Delay reporting referring to State of A.P. V. M. Madhusudhan Rao (2008) Supreme Court held that it is essential that the delay in lodging the report should be satisfactory explanation.
Recently in the case of State of Telangana V. Mangipet @ Mangipet Sarveshwar Reddy (2019) Supreme Court held that there is no set format in which a preliminary enquiry is to be conducted. The intention of the enquiry is not to initiate frivolous. The Court does not state that proceedings cannot be initiated against an accused without conducting a preliminary enquiry.
The legislation allow preliminary enquiry to be completed within 7 days, if not reason for delay shall be mentioned in the report book. After the enquiry if police think that the offence in not a cognizable offence and they are not able to register F.I.R., police need to inform the complainant about such situation within 7 days.
In provision of law there is no section that authorize police to conduct preliminary enquiry. In addition to the fact Supreme Court ruling say preliminary enquiry is not a rule but an exception.
As Jyoti Approch Police for registering F.I.R. against her husband & his family. Jyoti file complaint under section 498A of Indian Penal Code which is a cognizable & non Bailable offence. As far as case concern it is a criminal matter & matrimonial issue has been involved. Preliminary enquiry shall be conducted before proceeding and police should take immediate action. Registration of F.I.R. is mandatory in the cases of Cognizable offences and court will decide whether preliminary enquiry is needed or prima facie has been establish to begin proceeding.