IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.775/2018    

(arising out of SLP (Crl.) No. 5391 of 2017)

State by Lokayuktha Police        …Petitioner (s)

Versus

H. Srinivas    …Respondent (s)

WITH

CRIMINAL APPEALS NOS.776­779/2018    

(arising out of SLP (Crl.) No. 5606­5609 of 2017)

J U D G M E N T    

N. V. RAMANA., J.    

1. Leave granted.

2. These appeals are filed against the common order passed by

the High Court of Karnataka at Bengaluru, in Writ Petition

No (s). 21782, 38450, 38451 and 38498 of 2014, and

Criminal Petition No. 7166 of 2015, wherein the High Court

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REPORTABLE

has quashed the proceedings instituted against the accused

respondents.

3. There are two separate and distinct crimes alleged to have

been committed by the different individuals. Therefore, we

would like to note both set of facts so as to understand the

issue at hand.

4. The first set of facts pertain to Crime No. 103/2013

registered under Section 13(1)(e) read with Section 13(2) of

the Prevention of Corruption Act, 1988 [PC Act] against one

H. Srinivas  (respondent  in SLP  (Crl.)  No.  5391/2017).  On

25.10.2013, Police Inspector, Karnataka Lokayuktha,

Davanagere Division, submitted a Source Report against the

Respondent/accused, who was working as Assistant

Engineer, Jagaluru Pattana Panchayat, Davangere District,

for having acquired disproportionate assets against his

known source of income. It may be relevant to extract a part

of the source report as under­

It is hereby stated that AE Sri. H. Srinivasa, Assistant Engineer, Town Panchayath, Jagaluru has earned only Rs. 17,25,000 from known source and his disproportionate asset is Rs. 24,54,300­00 and the Percentage of Disproportionate asset is 142.27%.

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Presently AE residing at Jagaluru Town, J.C.R. Extension in the first floor of Khasim Miyya’s (owner of Grocery) house.  This source report is submitted in order to file out more details about additional property details, gold, silver, and lockers in the person’s house, (2) and Assistant Engineer office, Town Panchayath, Jagaluru and (3) Smt.  Gowramma’s  sister  Smt.  Umadevi’s house at J.C.R. Extension.

(emphasis supplied)

It is said that the aforesaid report was prepared basing on a

secret information, received from an informant. The

Superintendent of Police endorsed taking action against the

respondent under Section 13(1)(e), 13(2) of PC Act.

Thereafter, the Deputy Superintendent of Police, Karnataka

Lokayuktha,  Davanagere registered  Crime  No.  103/2013

u/Sec. 13(1)(e) r/w. Section 13(2) of the PC  Act, dated

29.10.2013, against the Respondent herein. In the column

No. 3(d) of the FIR, General Diary reference entry No and

time is noted as ’04 11:30 AM’. The State herein has not

disputed the fact that there was no entry in the General

Diary, during the conduction of the preliminary enquiry. It

may not be out of context to note that after completion of

the investigation,  a  Final  Report  was  prepared  and filed

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before the appropriate court. Aggrieved by the manner in

which the police have conducted the investigation, the

respondent  herein, filed  a  Criminal  Petition  No.  7166  of

2015, before the Karnataka High Court.

5. The second set of facts reveals that on 21.07.2011, the

Karnataka Lokayuktha Police, basing on a confidential

information about amassing of the disproportionate assets

by one C. Mrutyunjayaswamy (respondent in SLP (Crl.) No.

5606/2017), who was working as Secretary to Government,

PWD, Vikas Saudha, Bengaluru, prepared a Source Report

recommending investigation into the assets of the aforesaid

accused. Superintendent of Police, Karnataka Lokayuktha,

City Division, Bengaluru by Order No.

LOK/INV(G)SP/CITY/01/2011,  dated  21/07/2011  ordered

his deputy to register a FIR. On the same date, a FIR being

Crime No. 28/2011 was registered accordingly. On 22­

23.07.2011, the investigating team searched the office,

residence, bank lockers and other places of the contesting

respondents in this appeal [arising out of  SLP (Crl.)  No.

5606­09/2017]. On 07.05.2013, final Report was prepared

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after completion of the investigation, wherein

disproportionate  assets  were observed.  Being  aggrieved C.

Mruthyunjayaswamy filed a Writ Petition No. 21782 of 2014,

before the High Court of Karnataka, seeking quashing of the

preliminary investigation report dated 21.07.2011 submitted

by the Police Inspector of Lokayuktha and consequently the

FIR dated 21.07.2011 filed by the deputy Superintendent of

Police, Karnataka Lokayuktha Police in  Crime  No. 28 of

2011 and all the subsequent proceedings on the file of the

XXIII Addl. City Civil and Special Judge, Bangalore (CCH No.

23). Dr. H.M. Hema (wife of C. Mrutyunjayaswamy) filed a

writ  petition being W.P.  No.  38450 of  2014, seeking  inter

alia  quashing of the seizure proceedings in respect of

passbooks and also freezing of the accounts etc. One Smt.

Sowbagyamma (mother­in­law of C. Mrutyunjayaswamy)

filed W.P. No. 38451 of 2014 seeking inter alia quashing of

the seizure proceedings in respect of passbooks and against

freezing of certain bank accounts. One H.M. Prabhu

(brother­in­law of C. Mrutyunjayaswamy) filed W.P. No.

38498 of  2014 seeking  inter  alia  quashing  of the  seizure

proceedings.  

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6. The  main contention raised by the respondents herein,

before the  High  Court  as  well as this  Court, is that the

preliminary enquiry and the consequent Source Report filed

by the Officer were done without entering the same in the

General Diary, which according to them was mandatory and

non­compliance of the same resulted in vitiating the entire

proceeding.

7. The High Court clubbed all the cases as discussed above

and framed common questions of law, which are­

a. Whether there could be a preliminary enquiry conducted by the Police as to whether a cognizable offence had been committed, even in the absence of a complaint, or even prior to the registration of an FIR?

b. Whether Complainant could also act as the investigating Officer?

c. Whether an illegal search and seizure would be fatal to the case of the prosecution?

8. By the impugned order the High Court quashed the FIR on

the main grounds as under­ i. That the  preliminary report conducted  by the  police

was done without any entries  made in the Station Diary­ as to the conduction of the preliminary enquiry.

ii. Reliance was placed on the Case of Lalitha Kumari, (2014) 2 SCC 1, paragraph 120.7 and 120.8, to come to

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a conclusion that it  is mandatory to make entries in the Station Diary and failure of the same would be fatal for the prosecution.

iii. That any proceedings conducted after such alleged illegality would be rendered non­est  in the eyes of law and consequently are liable to be quashed accordingly.

9. Aggrieved by the judgment of the High Court, which

prematurely terminated the proceedings at the threshold

without allowing a full­fledged trial, the State of Karnataka

and other authorities are in appeal before this Court.

10. Mr. Devadatt Kamat, learned AAG, appearing on behalf of

the State has contended that­

i. That the impugned order is completely cryptic and without reasoning.

ii. That the conclusion reached in Para 120.8 of  Lalitha Kumari Case  (Supra), needs to be read in context of earlier discussion, wherein it is clear that for lodging an FIR, entry in the General Diary is not a pre­ condition.

iii. Defect/irregularity in investigation cannot result in quashing of the proceedings.

iv. That the Lodging of the FIR is not a precondition for initiation of criminal proceedings.

v. He has placed reliance on catena of judgments, wherein this Court has stamped its approval for

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conduction of such preliminary enquiry in corruption cases, for safeguarding the interest of the government servants from unwarranted prosecutions.  

vi. The consideration provided by the High Court  in the Criminal Petition  No. 7166 of 2015 (concerning the case  of  H.  Srinivas) is  highly insufficient  and  would clearly reflect non­application of mind.

11. On the other  hand,  Mr.  Siddharth Luthra, learned senior

counsel appearing  on  behalf of respondent (H.  Srinivas),

has drawn our attention to the fact that the  Lalitha

Kumari  Case  (Supra),  was a declaratory judgment. This

Court  has time and again emphasised  the  significance  of

Station Diary entry for conduction of the preliminary

enquiry thereby requiring the strict adherence to the

conclusions reached in the  Lalitha Kumari Case  (Supra).

He argued that in the present case, the illegality goes to the

root of the matter thereby mandating the quashing of the

FIR on a pure question of law. We may note that the other

respondents have not advanced any arguments concerning

the third issue.

12. Heard the arguments advanced by the learned counsels

appearing on behalf of the parties and perused the material

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available on record. At the outset, we are in agreement with

the contention of the appellant­State that the consideration

provided  to the  Criminal  Petition No.  7166 of  2015, is

highly insufficient,  which in other cases  may have itself

mandated a remand for non­application of facts. We refrain

from taking such an approach, as  lot of time has already

been wasted in unnecessary litigation and therefore, we

deem it appropriate that we put a quietus this issue herein

without remanding the aforesaid case back to the High

Court for proper consideration.

13. As both sides have placed excessive reliance on the case of

Lalitha Kumari Case  (Supra), it would be appropriate for

us to discuss certain nuances of this  case  in detail.  This

Court therein, having noticed certain contradictory

judgments concerning the interpretation of  Section 154 of

CrPC, referred the matter to a larger Bench for providing a

mechanism under the criminal justice system imbued with

due process.

14. In the aforesaid case, this Court while repelling the

contention by the  learned ASG appearing  for the State  of

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Chhattisgarh that recording of the first information under

Section 154 in the “book” is subsequent to the entry in the

General Diary, held that the concept of General Diary does

not flow from the Section 154 of CrPC, 1973 and the same

conclusion would be apparent from the departure made in

the present Section 154 of CrPC when compared with

Section 139 of the Code of Criminal Procedure, 1861. It may

be relevant to  extract some paragraphs,  which may  have

bearing on the case concerned­

64. The General Diary is a record of all important transactions/events taking place in a police station, including departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order duties, visit of senior officers, etc. It is in this context that gist or substance of each FIR being registered in the police station is also mentioned in the General Diary since registration of FIR also happens to be a very important event in the police station. Since General Diary is a record that is maintained chronologically on day­to­day basis (on each day, starting with new number 1), the General Diary entry reference is  also  mentioned  simultaneously in the FIR book, while FIR number is mentioned in the General Diary entry since both of these are prepared simultaneously.

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65. It is relevant to point out that FIR book is maintained with its number given on an annual basis. This means that each FIR has a unique annual number given to it. This is on similar lines as the case numbers given in courts. Due to this reason, it is possible to keep a strict control and track over the registration of FIRs by the supervisory police officers and by the courts, wherever necessary.  Copy of  each FIR  is sent to the superior officers and to the Judicial Magistrate concerned.

66. On the other hand, General Diary contains a huge number of other details of the proceedings of each day. Copy of General Diary is not sent to the Judicial Magistrate having jurisdiction over the police station, though its copy is sent to a superior police officer. Thus, it is not possible to keep strict control of each and every FIR recorded in the General Diary by the superior police officers and/or the court in view of enormous amount of other details  mentioned therein and the numbers changing every day.

67. The signature of the complainant is obtained  in the FIR book as and when the complaint is given to the police station. On the other hand, there is no such requirement of obtaining signature of the complainant in the  General  Diary.  Moreover, at times, the complaint given may consist of large number of pages, in which case it is only the gist of the complaint which is to be recorded in the General  Diary and not the full complaint. This does not fit in with the suggestion that what is recorded in the General Diary should be considered to be the fulfilment/compliance  with the requirement

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of Section 154 of registration of FIR. In fact, the usual practice is to record the complete complaint in the FIR book (or annex it with the FIR form) but record only about one or two paragraphs (gist  of the information) in the General Diary.

…

70. If at all, there is any inconsistency in the provisions  of  Section  154  of the  Code  and Section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus,  FIR is to  be recorded in the  FIR book, as mandated under Section 154 of the Code,  and  it is  not  correct  to  state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as FIR.

(Emphasis supplied)

15. On the aspect of the preliminary enquiry the court discussed

as under­

115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates

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the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of  crimes with the passage of  time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.

…

117.      In the context of offences relating to corruption, this Court in      P. Sirajuddin    [  P. Sirajuddin      v.      State of Madras   , (1970) 1 SCC 595 : 1970 SCC (Cri) 240] expressed the need for a preliminary inquiry before proceeding against public servants.

(Emphasis supplied)

16. Thereafter this  Court concluded in the following manner­

Conclusion/Directions

120. In view of the aforesaid discussion, we hold:

…

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120.5. The scope of  preliminary  inquiry  is not to verify the veracity or otherwise of the information  received  but  only to  ascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases  in which preliminary inquiry  may be  made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time­bound and  in any

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case it should  not exceed  7  days.  The fact of  such delay and the causes of  it must  be reflected in the  General  Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

(Emphasis supplied)

17. In light of the discussion above, the absence of entries in the

General Diary concerning the preliminary enquiry would not

be  per se  illegal.  Our  attention is  not  drawn  to  any  bar

under any provision of CrPC barring investigating authority

to investigate into matter,  which may  for  some  justifiable

ground, not found to have been entered in the General Diary

right after receiving the Confidential Information. It may not

be out of context to  mention that nothing found in the

paragraph 120.8  of the  Lalitha  Kumari Case  (Supra),

justifies the conclusion reached by the High Court by

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placing a skewed and literal reading of the conclusions

reached by the Bench therein. It is well settled that

judgments are not legislations, they have to be read in the

context and background discussions [refer Smt. Kesar Devi

v. Union of India & Ors., (2003) 7 SCC 427].  

18. As the concept of maintaining General Diary has its origin

under the Section 44 of Police Act of 1861 as applicable to

States, which makes it an obligation for the concerned Police

Officer to maintain a General Diary, but such non­

maintenance  per se  may not be rendering the whole

prosecution illegal. However, on the other hand, we are

aware of the fact that such  non­maintenance of  General

Diary  may have  consequences  on  the  merits  of the  case,

which is a matter of trial. Moreover, we are also aware of the

fact that the explanation of the genesis of a criminal case, in

some cases, plays an important role in establishing the

prosecution’s case. With this background discussion we

must observe that the binding conclusions reached in the

paragraph 120.8  of  Lalitha Kumari Case  (Supra) is an

obligation of best efforts  for the concerned officer to record

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all events concerning an enquiry. If the  Officer has not

recorded, then it is for the trial court to weigh the effect of

the same for reasons provided therein. A court under a writ

jurisdiction or under the inherent  jurisdiction of the High

Court is ill equipped to answer such questions of facts. The

treatment provided by the High Court in converting a mixed

question of law and fact concerning the merits of the case,

into a pure question of  law may not be proper in light of

settled jurisprudence.  

19. Our conclusion herein is strengthened by the fact that CrPC

itself  has  differentiated  between  irregularity  and illegality.

The obligation of  maintenance of  General  Diary  is  part of

course of conduct of the concerned officer, which may not

itself  have  any bearing  on  the  criminal trial  unless  some

grave prejudice going to the root of matter is shown to exist

at the time of the trial.1  Conspicuous absence of any

provision under CrPC concerning the omissions and errors

during investigation also bolsters the conclusion reached

herein.2

1 Union of India and Ors. v. T. Nathamuni, (2014) 16 SCC 285 2 Niranjan Singh and Ors. V. State of Uttar Pradesh, AIR 1957 SC 142.

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20. Moreover, the requirement of the preliminary enquiry is well

established by judicial precedents as a check on

mushrooming false prosecution against public servants by

persons who misuse the process of law for their personal

vengeance. Such preliminary check would be beneficial and

has been continuously approved by catena of judgments of

this Court. [refer to P. Sirajuddin Case, (1970) 1 SCC 595,

Lalitha Kumari Case  (Supra)]. In light of the discussion,

we cannot sustain the reasoning provided by the High Court

on this aspect.

21. Therefore, we allow these appeals and, accordingly, set aside

the order of the High Court. Before we part it may be noted

that we have not expressed any views on merits of the case

and the trial court is to proceed expeditiously uninfluenced

by any observations made herein.

      …………......................J. (N.V. RAMANA)

  ..................................J.              (S. ABDUL NAZEER)

NEW DELHI, MAY 18, 2018.

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