 Scope of preliminary inquiry and registration of FIR under the old as well as the new law is a session which we are taking today by Mr. Asim Pandya, senior advocate, former president of Gujarat High Court, Advocates Association. Those who have been connected with the beyond law CLC series would know that Mr. Pandya had started patronizing the channel of beyond law CLC with his knowledge sharing on not one but so many sessions and that's why we keep on looking upon him for sharing his knowledge. He's an arid writer plus proflict speaker and beyond that, after being connected on social media, I learned that he has got good passion for music as well as that. But that only shows that he has a holistic growth as they all say that professionals have to have every type of knowledge which makes him an all-rounder and that's why we all look upon him. Today, since Mr. Pandya was busy, we had changed our routine as such from 6 p.m. to 4.30, but they all say that good things have two different things. Thank you, Mr. Pandya. Thank you. Thank you, Mr. Vikas, for a nice introduction. The topic which we have chosen today is preliminary inquiry, scope of preliminary inquiry and registration of FIR. Now, we all know, we have all experienced in our profession as well as in our personal life that when we go to police station for registration of an FIR, many a time it so happens that police refuses to register FIR. Then what are the options available? Secondly, sometime it so happens that we go to police station and the police station person sitting there would say that the crime has been committed in a different jurisdiction. So, this is not a proper police station. You must go to the police station which has jurisdiction to investigate. Third aspect is the scope of preliminary inquiry because now during last 10 years from the judgment in earlier Kumari's case, this preliminary inquiry has been open for the first time. We will in detail discuss all these things. But during this 10 years experience, we have seen that in the garb of preliminary inquiry, the police officer accept certain applications. They do not register them as FIR directly. But in the garb of preliminary inquiry, they call upon certain witnesses or proposed accused to the police station. They try to intervene in the matter which is not purely a criminal matter or which cannot be considered to be an offense. And they try to bring pressure on the parties and then they get the matter settled rather than looking into the actual grievance of the parties. So, we must understand what is the exact scope of preliminary inquiry because to some extent now it is permitted. And fourth aspect which is most important, we are going to discuss all these four aspects. Fourth aspect is there is a considerable ambiguity about the magistrate's power under section 1563. It so happens that when we move the magistrate seeking his intervention under section 1563 of the criminal procedure code, he would direct, he would examine the complainant on oath and he would issue inquiry under section 202 which is not prayed for by the parties. So, this is our frequent experience as a lawyer and sometimes it might be a personal experience also. So, in this webinar, the principal focus is on the scope of preliminary inquiry plus whether the police officer has power to refuse registration of FIR. So, first we will go to the aspect of section 154 which provides for registration of FIR. This action is very simple. It is couched in a very plain and simple language. It says that when police officer, officer in charge of police station receives an information disclosing a cognizable offense he has to reduce it into writing and then register it as an FIR. A copy of the FIR is to be given to the informant free of cost immediately. So, that is a short provision. Now, despite these provisions in force for so many years, we have all experienced that in most of the cases which are not purely criminal in nature means the offences pertaining to properties, offences pertaining to criminal breach of trust, offences pertaining to cheating, etc. The police routinely refuse to register FIR. They would register FIR only when the offence is pertaining to bodily harm. So, if it's a 326, 307, 306, 302, they don't mind registering FIR such FIRs but barring such FIRs in most of the cases we have experienced that police would refuse to register FIR. So, the law was very clear since 1992 in Bhajanlal's case and thereafter in Ramesh Kumar's case and lastly, despite all this clear law, the matter was referred to a larger bench because some of the judges thought that there are certain divergent use of Supreme Court as well as different high courts taking a different view that it is not mandatory to register FIR even if it discloses a cognisable offence and the police would be entitled to hold the inquiry, preliminary inquiry. To set rest this controversy, the honorable Supreme Court in Lalitakumari versus government of UP which is reported in AIAR 2014 Supreme Court page 187 has clearly held after considering all those judgments starting from Bhajanlal and Ramesh Kumar, etc., etc., Prakash Singh Badal's case, etc. It has clearly held that it is a mandate of law. So, what is the condition precedent for registration of FIR? The only condition is that the information which is given by a person to the in charge of police station must disclose a cognisable offence. The credibility of information, genuineness of information, all these are not there stated in section 154. The honorable Supreme Court drew analogy to clarify this aspect from section 41 which provides for power of arrest. The Supreme Court also considered provisions of section 157 which provides that investigation is not to be started mechanically and there has to be a reason to suspect that cognisable offence has been committed. So, only on that premise investigation starts. So, considering these two sections which has used reasonable suspicion or credible information, no such wordings are there in section 154 and therefore the honorable Supreme Court clearly laid down in Lalitha Kumari that it is a mandate of law. The honorable Supreme Court applied the rule of literal interpretation. It went by the literal interpretation and argument was can was that under section 154 subsection 3 in the event of refusal to register FIR, a remedy is provided for to approach superintendent of police with a request that the consent police officer has not registered FIR. Therefore, it shows that it is not mandatory. The honorable Supreme Court, it is of no consequence. The word shell is indicative of the legislative intent that whenever the information discloses a cognisable offence, it must be registered. So, apart from literal interpretation, the word shell has also been interpreted and say that it does not believe in any doubt. In the case of section 154, section 3, it is a mandate of law. More importantly, the Supreme Court also stated, I think completely all are requested to mute themselves. Otherwise, it creates some disturbance. So, I lose track. So, I was on the aspect that that judgment also clearly states that the provisions of criminal procedure court does not contemplate any preliminary inquiry. And therefore, whenever cognisable offence is disclosed, the police is mandated to register FIR. Now, honorable Supreme Court also said that mere registration of FIR does not cause any prejudice to anyone. Why? The reason is that section 157 provides that despite registration of FIR, a discretion is left in the police officer not to commence investigation. So, registration of FIR does not... Pandeyji, once I'm just muting all, then you will allow you to unmute yourself. Pandeyji, unmute yourself. Yes. Yeah. Am I available now? Yeah, yeah, perfect. Okay. So, I was on the point that the registration of FIR does not if so factor warrant into investigation. The police officer has still discretion whether to investigate or not to investigate. As I said that mere registration of FIR does not cause any prejudice. And once the police officer is deciding to commence investigation, the question of prejudice might occur. But for the time being, what I was discussing is that when police officer takes a decision not to commence investigation, he will have to record reasons for that and he has to send a report to the magistrate concerned. And magistrate concerned under section 159 after examining the report can still order investigation under section 159, which the police might have refused to commence the investigation under 157. So, there is inbuilt mechanism. So, mere registration of FIR does not cause any prejudice. Second aspect is that there are judgments and the Supreme Court has made it clear in many judgments that mere registration of FIR does not automatically warrant into arrest of a person because for arrest, there is a separate provision that is section 41. And section 41 is hedged by several restrictions that first of all, here's the police officer must examine the information, whether it is a credible information, whether reasonable suspicion exists that person has committed cognizable offense and now in view of subsequent development from 2010, there is a provision which is incorporated that when offense is punishable up to seven years, there are further requirements of recording reasons before arresting a person. So, as I pointed out that registration of FIR does not create any prejudice per se. And therefore, the question of holding preliminary inquiry which is contemplated in Lalitakumari, which in my submission, once it has been made clear that it is a mandate of law, there was no reason to carve out an exception because in one hand the judges said that law does not contemplate any kind of preliminary inquiry. Then there was no question of carving out an exception. Because as I said that mere registration, nothing happens. So, therefore, there was no scope of any preliminary inquiry. Once it is held that it is a mandate of law. So, this is very clear from the decision in Lalitakumari's case. Now, coming to the second aspect that when we go to police station for registering a crime and many times we have experienced that police would say that this offense which has been committed does not fall within the territorial jurisdiction of the police station. The law is very clear that police has no authority to refuse registration of FIR even if it is offense is committed in some different jurisdiction. There are advisories issued by the central government. Central government in 2013, 2014 and 2015 issued advisory to all state governments saying that the police officers are shunting the informants who are coming to disclose an offense, commission an offense by simply saying that the police station concern has no territorial jurisdiction. Now, whether there is any concept of territorial jurisdiction with regard to registration of FIR or not. In my view, there is no concept of territorial jurisdiction at the time of registration of the FIR. If you examine the provisions of section 39 and section 40 of CRPC. Section 39 cast a duty on a person who knows that a particular type of cognizable offenses are committed to his knowledge to inform to the nearby magistrate or nearest police station. So there is no concept that a crime is to be reported to a particular police station only. So when this is supported by section 39, first of all, then section 40 also contemplates and supports this contention that there is nothing like concept of territorial jurisdiction of a police station. And once cognizable offenses disclose the police must register FIR irrespective of the offense where it has been committed in area where the offense has been committed, which is known as zero FIR because it is not a regular FIR. Once it is within the jurisdiction, it has to be given due number, proper number. But if it is pertaining to any other jurisdiction, it is to be registered as zero FIR. So in practice, though this is a clear law, we have found that it is not being implemented in its strict sense. So I was on section 40, which also said that in village a certain offense suppose unnatural date takes place accidental date take place or any other serious cognizable offenses committed in the village area. Then not only the officers of villages, but every resident of the village must inform to the nearest police station or to the nearest magistrate about the commission of cognizable offense. So I am just trying to point out that when you go to a particular police station and when he refuses to register FIR on the ground of lack of territorial jurisdiction, you must point it out to him that it is his duty because once it is a duty of the citizen to inform to the nearest police station about the commission of cognizable crime of serious nature under section 39 and section 40, the police officer would not be justified in refusing the registration of FIR on the ground that it lacks territorial jurisdiction. And I would request you to look up to those advisory where the central government has circulated to all state governments that this direction of the Supreme Court which is emanated from the judgment in Satvinder Kaur's case which is reported in 1999 Supreme Court cases page 198. So in that case, the concept of zero FIR was envisaged and thereafter from time to time the Supreme Court as well as the central government has taken up this issue very seriously now coming to the new law. You would be very fascinated to know that under the new law that is Bhartiya Nagarik Suraksha Samhita. Now the concept of territorial jurisdiction lack of territorial jurisdiction has been given complete go by now under new section that is section 173 which begins with this phraseology that irrespective of the area where the crime is committed, the police officer must register the FIR. So now that is the additional fact which we must bear in mind because earlier law very soon from 1st July we will have to deal with the new law. So new law clearly contemplates that there is no concept of territorial jurisdiction when FIR is to be registered. Second important aspect which was not there in section 154 which is now found in section 173 is that you can register FIR through electronic media also. So any electronic medium like you can give a mobile call you can send a detailed WhatsApp you can also send email. So all these electronic medium are now recognized under section new section 173 of BNSS that is Bhartiya Nagarik Suraksha Samhita. So two new concepts have been brought in under section 173 one is the concept of territorial jurisdiction is now no more and secondly now you can you will be able to register FIR from 1st July onwards through electronic medium also and police has to give regular number within a period of three days once the information which has been given through electronic media and person comes and signs the record then it becomes the regular FIR. So the concept of zero FIR has been now incorporated statutorily under new section. So this is with regard to the registration of FIR I am not going much into it because it is the law is now clear by the judgment in Lalitha Kumaris case. Now coming to the next point which is very interesting and which is which is nobody is thinking that how preliminary inquiry which is contemplated in certain types of cases in Lalitha Kumaris is grossly abused. Now you all know then in Lalitha Kumaris case in last paragraph the Honorable Supreme Court said that when the information involves a commercial dispute when information involves a matrimonal dispute or a family dispute or the information is grossly delayed and the Supreme Court said that delayed beyond three months or there are there are other restrictions than in such cases a preliminary inquiry is contemplated that police should not mechanically register when such things are present because the experience had shown that these provisions have been grossly abused like 406, 420 and matrimonal disputes. So commercial disputes are given color of criminal nature and therefore to avoid such information is being registered as FIR the Supreme Court has kept it open for the police officer to hold a limited preliminary inquiry. Now limited inquiry the Supreme Court has not explained the scope and extent of inquiry. I will give one illustration which I recently faced and you will realize that how these provisions are being grossly abused holding of preliminary inquiry the law contemplates under section 154 and section 155 only two registers only two registers are to be maintained one is register of FIR that is cognizable offenses to be registered in the book of FIR then if suppose information discloses a non-cognizable offense then it is to be registered in a book which is meant for registering non-cognizable offenses and the police officer is duty bound to refer the person concerned to the magistrate for appropriate records of law. So as such law contemplates two registers for cognizable offenses FIR register and for non-cognizable there is a book known as non-cognizable cases book. So there is no concept of receiving a third type of application either it discloses a cognizable offense so you must register FIR if it does not disclose a cognizable offense but it simply discloses a non-cognizable offense then you should simply register in NC book and refer him to the magistrate where is the concept of entertaining or maintaining a separate book of applications. Now what happens when such an application register is permitted under the law of the Supreme Court during last 10 years you will have experienced that so many commercial matters so many civil disputes are given color of criminal matter the applications are moved before the police station police station in the garb of holding preliminary inquiry will call upon proposed accused or his relatives or his friends or whoever may be acquainted with the information to the police station now in the police station they not only record the statements of such persons but they also ask them to sign such statements. So and these things happen not only once one can understand that once someone is issued and one person comes and attends the police station and then he gives a statement matter doesn't end there I was on the point that I had recently experienced one case where somebody purchase a property which was already mortgaged to the bank and it was a matter subject matter of DRT proceedings there was an attachment of the bank despite that the purchaser moved the police station and said that he has been duped by the seller not the bank that he has sold him the property which was known to him that it had been mortgage with the bank and it was subject matter of attachment before the DRT now there was no fault on the part of the bank officers but in the garb of holding preliminary inquiry the highest officers of the bank were summoned twice they attended they gave statement thereafter also the matter did not end there repeated summons were and summons it was it cannot be termed as summons in Gujarat it is known as Samaj Yadi so there is no reference of any section under what provisions they are issuing such kind of notices asking the person to remain present in the police station. So the highest officer from Bombay was repeatedly called at the police station he was given phone calls by the police officer ultimately the person concerned got tired the bank officer got tired and ultimately he was made to enter into a compromise where the dues of the bank were more than four crores but he entered into compromise to settle the matter for two crores. So this is the nature of preliminary inquiry which is being contacted by police which is absolutely not permissible today I am going to focus mainly on this aspect to make the point clear that if this kind of preliminary inquiry is permitted it would open the floodgates of corruption for police and police would be enjoying such powers which is not contemplated in the provisions of CRPC. Now appreciate that calling a person is a part of investigation now you must bear a distinction because everything turns on what is investigation and what is preliminary what to what extent preliminary inquiry can be permitted to be done. Now prior to we can divide the issue about holding a preliminary inquiry pre Lalitha Kumaris case and post Lalitha Kumaris case now if we talk about the law which was prevalent prior to Lalitha Kumaris decision. I have examined and in my opinion there are no such judgments that permit holding of a preliminary inquiry prior to registration of FIR. There are three decisions which I will report to shortly where to some extent similar issue arose but there is no definite authoritative decision given by the honorable Supreme Court that yes the code of criminal procedure contemplates holding of a preliminary inquiry before registration of FIR. The first judgment which I am going to refer to is judgment which is reported in AIR 1964 Supreme Court's paid 2 to 1 and the name of the party is State of UP versus Bhagwan Kishore Joshi. Please note down this judgment because this is the first judgment where something sort of arguments where can was that such powers are already there with the police but the Supreme Court negative but there is a dissenting judgment of Justice Mudolkar which I will report to very shortly. Now in this case the issue was under the prevention of corruption act. The prevention of corruption act provided that no police officer below the rank of deputies pretended of police can investigate any offense pertaining to matter under the prevention of corruption act. Now in this case once police sub inspector received some information from his superior that one booking clerk, railway booking clerk that is respondent Bhagwan Kishore Joshi was misappropriating the amount collected by him during the booking and that is how the criminal breach of trust and cheating is done by that person. So without taking authorization which was contemplated in law he directly reached the spot he collected certain evidence he examined certain books which were maintained by that railway authorities and thereafter after some time he obtained authorization from the magistrate and thereafter he registered a regular case and conducted investigation later on. Now in this case trial court convicted the person but High Court said that these steps which were you are arguing that it is preliminary inquiry are actually part of investigation because word investigation simply means that going to the spot collecting evidence recovery or discovery of evidence arrest of the accused all these are part or steps of investigation and here these police sub inspector who was not authorized because deputy superintendent of police was authorized under the law to conduct investigation. So Supreme Court said that whatever steps which that police sub inspector took before the authorization obtained from the magistrate were part of investigation and it cannot be considered as preliminary inquiry and therefore the High Court was the High Court's judgment was set aside on other ground because High Court said that it would be investigation and therefore the trial court's order would be contrary to law Supreme Court upheld one portion of the judgment that yes it is part of investigation but the honorable Supreme Court said that there was no procedures caused to the accused by conduct of that investigation which was done by the police sub inspector therefore ultimately the trial court order was sustained. Now in this judgment there is a dissenting opinion of justice Moodulkar where we will find some light about the preliminary inquiry. He said that if some unknown information from unknown source is received or vague or very general information is received the source is not that authentic authenticate then in that case just to lend assurance to what whether it is correct whether it discloses a cognizable offense when the information is correct or not the person police officer concern is entitled to hold a limited preliminary inquiry and that preliminary inquiry must be a discrete preliminary inquiry. Discrete preliminary inquiry means it should he should obtain information from his own sources. It would not mean that he can call witnesses or the proposed accused to the police station because in the entire CRPC there is no concept of calling a person to the police station because it is considered that investigation has to take place at the place of crime not in the police station police officer cannot sit in the chamber of his chamber in the police station and conduct investigation that is not the concept and research under the provisions of CRPC. So therefore the definition of investigation also important and the provisions of section 154, 156 and 157 is important where there is clear indication that whenever investigation is commenced the police officer is supposed to go to the spot he is required to collect evidence he is try he has to discover the evidence he has to arrest the person if he is it is required. So, these are the steps of investigation and something which is not in that nature can only be considered as preliminary inquiry as per the decision descending opinion of Mudhulkar. So, he was of the view that what police inspector did in that case was simply preliminary inquiry and therefore also there was nothing wrong with the conviction which was given by the trial court. Now, this judgment was the standalone judgment for so many years. The second judgment which I am referring to is Shashi Kandh versus CBI which is reported in 2007 one SCC. So, in Shashi Kandh versus CBI also it was a matter pertaining to CBI a person who was a servant employee he made anonymous complaint about his superiors and other officer that they were indulging into corruption. The CBI conducted preliminary inquiry preliminary after preliminary inquiry they did not register a regular case which is a normal procedure but only departmental inquiry were held against the officer concern. In this background the person who has sent anonymous information approach the court that no FIR should be registered and appropriate action should be taken. So, in again in Shashi Kandh it was a case of CBI. CBI manual clearly contemplates preliminary inquiry. CBI manual stands on a different putting because it is the investigation is conducted under the the least special establishment Police Establishment Act and there is a different set of procedure where because because of the specific reason that they are concerned with essentially with public servants and public servant should not be unnecessarily harassed and therefore there has to be a mechanism to weed out certain information before registering a regular FIR. So, CBI manual has clearly contemplated a preliminary inquiry and in that background the Supreme Court held that yes there is a power to hold preliminary inquiry with the CBI but that would be inappropriate to make applicable to the offenses under CRPC or IPC. Now a broad statement came to be made in Shashi Kandh's case by probably by Justice S.B. Sinha that under CRPC also a preliminary inquiry can be conducted. So, he said that it is not unknown that such a preliminary inquiry is also conducted in the under the CRPC also but for making such a broad statement the learned judge has not referred to any authoritative decision of the Supreme Court or any statutory provision. So, that broad statement is not a law duly supported by judgments of the Supreme Court or statutory provision. Now when in the same year second judgment was there that is Rajinder Singh Katoch versus Chandigarh Delhi administration that is reported in 2007-10 SCC page 63. In that case it was a case of a civil dispute. There was a dispute between two brothers about the ancestral property and right to possess that property. One brother filed a FIR made a complaint to the concerned officer saying that he has been illegally restrained from entering it to his ancestral property and the other brother is guilty of criminal trespass etc etc. So, that application did not yield desired result in whatever of that ultimately matter reached Supreme Court. The Supreme Court unfortunately rather than basing its opinion on the aspect whether the preliminary inquiry is possible to be conducted because in that case after information was given by that brother some sort of preliminary inquiry was conducted and it was found that there was no truth in the information given by the brother. So, ultimately no FIR was filed. So, in that case again the question arose whether preliminary inquiry is contemplated in law or not and the Supreme Court relied on the decision in Shashikant versus CBI which is pertaining to CBI inquiry where there is a specific recognition of the power of holding preliminary inquiry. So, that judgment has been wrongly applied in the case of Rajinder Singh Katoch and it was held that the preliminary inquiry is justified. Now, there are why I am focusing on this point because there are serious problems when police is permitted to hold preliminary inquiry and in the garb of preliminary inquiries police is permitted to take actions which are pertaining to investigation like calling a person to the police station which is most objectionable thing and recording statement. Now, why it is objectionable? Because when a person is called at the police station, he is not an accused. So, his statement if it is recorded and his signature is obtained, it can be used as an evidence against him. So, statutory protection that is under section 161 this day on 162 the statement recorded under 161 after investigation has commenced cannot be relied during the trial and they are not to be signed. Please remember this that 161 statements are not supposed to be signed by the persons and they cannot be relied at the time of trial. So, there is a protection that if police records particular statement, it is not to be signed and it cannot be used as evidence in the trial court. Similarly, section 25 of the evidence act, section 25 of the evidence act that no confessional statement made to the police by an accused of an offense is admissible. Now, when preliminary inquiry is held, there is no formal accusation at all. So, section 25 evidence act, section 26 of the evidence acts also that protection is also taken away. Similarly, the protection under article 20 sub article 3 that no person shall be compelled to be a witness against himself. There also judicial opinions are very clear that unless a person is formally stamped as an accused, that protection against testimonial compulsion will not begin. So, now realize when preliminary inquiry is held, a person is called in the police station, his statement is recorded and suppose the police relies on that statement during the trial, what would happen? The answer is obvious. The police, the prosecution can argue that he was not an accused and therefore, it is not a statement under 161 which is protected. It is not a confessional statement because he is not an accused and he is not an accused and therefore, the right against the testimonial compulsion will also not begin. So, such a statement is likely to go into evidence and it is, it can be argued, plausibly argued by the prosecution that it has no protection constitutional or statutory protection and therefore, it can go into the evidence. So, this is a very serious aspect which we must bear in mind and whenever any person, any police officer in the garb of preliminary inquiry calls your client to a police station for recording a statement, you must instantaneously challenge such a summons because you will find that summons will have no statutory provision bearing on the summons. It would simply known as Samaj Yadi or some side kind of communication which has no statutory backing and you can argue that preliminary inquiry which is contemplated and in the case of Lalitha Kumari is a discrete inquiry which should not affect the liberty of individual because I am compelled by summons or Samaj Yadi to attend the police station and I fear that if I don't attend the police station, there is possibility that police might register another case against me that I am obstructing or I am not cooperating the investigating agency in carrying out his performing his duties. So, in this background, whenever such a things happen or sometimes even specimen signatures are also obtained during the preliminary inquiry and preliminary inquiry, all these pressurizing tactics are being adopted by police just to extract money from both the parties. The application is taken because somebody has paid money to police officer and you would be specialized to settle the matter or you will be asked to pay some amount to consign the complaint of the informant to record. So, you must object to whenever you get an opportunity, I am proposing to challenge such a thing whenever an opportunity comes. In fact, that in bank case, I got an opportunity, I was about to convince the court but unfortunately in the main time the settlement took place. So, we should try to see that whenever these things happen, you must challenge and you must point out by reference to the provisions of law that in the garb of preliminary inquiry, the police cannot be permitted to conduct investigation or steps that are pertaining to investigation. So, that is some and substance of this scope on extent and therefore, what I am trying to point out with that that preliminary inquiry which is contemplated by Mudhol Karje, Justice Mudhol Karje as a dissenting view has made it very clear that it should be a discrete inquiry from his own source. You should not affect somebody's liberty. Nobody can be called at police station and only there is one provision which permits calling a person to the police station that is section 160 of CRPC and that to a limited class of people persons residing in the same police station or adjoining police station who is acquainted with the facts of the case. Otherwise, in every case, police has to go to the scene of crime or where the crime has taken place. He has to record statement going there at the place and collect the evidence at the place of crime and he is not supposed to sit idle or sitting in the police station calling somebody here and somebody there and collecting evidence in his own way. Now, section 160 also will not come at the time of investigating preliminary inquiry because it contemplates investigation. Section 160 summons can be issued when investigation is on not at the preliminary stage. So, if they refer to section 160, you can question that this is not permissible at the preliminary inquiry and only if registration of FIR is there or the police has already started investigation by sending report under section 157 then section 160 can be involved. Second time apprehension or somebody argues that section 41A summons will be issued. Section 41A summons can be issued to the accused only and that too only after registration of FIR. In compliance in compliance with section 41 sub clause 1 clause B of CRBC. So, neither section 41A permits calling any other person witnesses unless he is tamed as a accused and that section 41A summons can be confined to accused only. Section 160 can be to any other person provided that is already investigation. So, my endeavor today is to point out that we should clearly bear in mind the distinction between investigation and power to hold inquiry. So, since the Honorable Supreme Court has already permitted such kind of preliminary inquiry, we will have to confine and we will have to restrict that scope of inquiry which does not affect this statutory right of any person including accused either constitutional or statutory under CRBC or evidence act. So, this is about the this preliminary inquiry. Now, under the new code there is a specific provision which permits preliminary inquiry. So, section 173 subsection 3 now permits a limited preliminary inquiry but the wordings are very important because now preliminary inquiry would be permitted in respect of offenses punishable with 3 years or more or less than 7 years. So, less than 7 years please keep it in mind the distinction between the offense punishable up to 7 years or more. Here it is clearly stated that 3 years or more but less than 7 years. So, in respect of the offenses which are punishable with more than 7 years. Now, no preliminary inquiry can be contemplated under the Bhartya Nagarik Suraksa Sahida section 173 subsection 3. So, this we must bear it in mind therefore again the question would in future arise whether offenses involving more than 7 years punishment whether preliminary inquiry can be permitted in the light of the decision in the case of Lalitha Kumari. So, that question the Supreme Court will have to answer in due course but for the time being we are at least happy that this preliminary inquiry is limited to only minor offenses less than 7 years. So, if you give an information the police will not have any right to hold preliminary inquiry at all. So, this is on preliminary inquiry now coming to the last topic we will quickly do it that is power under 156.3. We have come across large number of judgments that in at least in Gujarat there are 3 important decisions one is of 1986 one is of 1997 and one is of 1998. In all these cases in most of the cases they arose directly to the the cases around from the complaint which had been directly filed before the magistrate and magistrate concerned without undertaking inquiry or issuing process himself just to shirk his responsibility. He ordered investigation under section 156.3 so that he may not have to conduct inquiry or he may not have to issue process. So, in this background these three judgments are delivered by the Gujarat High Court. One is in Aravindra Avjipe Patel another is in Indravedan P. Shah's case and third one I do not remember but these are the 3 cases one is of Justice M. B. Shah another is of Justice S. M. Soni and another third one is of Justice K. J. Vaidya. Now in one judgment the High Court said that 156.3 order should not be mechanically passed and it must reflect application of mind and the court also directed that decision to be circulated to all judicial officers in the state of Gujarat. So, after that judgment in state of Gujarat the order under section 156.3 has become a rarity. So, after that judgment most of the judges trial court judges follow that judgment and say that okay since the Honorable High Court has said that we should not mechanically order 156.3 we reject your application. Now the important issue is that to invoke what are the condition precedent to invoke in my personal view and which is supported by the decisions that if you want to invoke section 156 you must first approach the police station consent under section 154.1. So, you must make an attempt to register an FIR. Suppose that attempt has not given a desired result or it has been ignored or the police officers are concerned has refused to register FIR. Then there is second option that is section 154 subsection 3 you should also make an effort to approach the superintendent of police with a request to start investigation or to order investigation as contemplated by registering FIR. If these two conditions are fulfilled then only you can you are entitled to invoke section 156 subsection 3 because section 156.3 falls in this particular chapter which is pertaining to information and which ends up to filing of the charge sheet whereas section 190 which provides for taking of cognizance by magistrate and section 200 which provides for filing of a private complaint are in a separate chapter. So, taking clue from the fact that section 200 contemplates entirely different thing we are not concerned when we are invoking 156.3 we should be very specific that we are invoking 156.3 power of magistrate to order investigation and the condition precedent is that you must have invoked section 154 and 154.3 failing which if the magistrate despite that if the magistrate passes an order of 156 it would be vulnerable because there are now two three judgments which started from judgment in Priyanka Srivastava and then latest judgment in Babu Venkatesh versus state of Karnataka which is reported in 2022 scale. So, in Babu Venkatesh the honorable supreme court after referring to judgment in Priyanka Srivastava case has laid down three conditions for invoking section 156.3. First condition is that you should have approached police under section 154.1 you approach the superintendent of police under section 154.3 and despite that if it has not given the desired result the police has failed to register FIR in respect of a cognizable offense then you would be entitled to approach magistrate by an application specific application under 156.3 and additional requirement which has been laid down by in Babu Venkatesh case that that application should be duly supported by an affidavit. So, what the magistrate when you approach under 156.3 that application must be supported by an affidavit. Only if these three conditions are fulfilled the magistrate would be justified in ordering investigation under section 156.3. Now, in what cases 156.3 can be invoked in what cases section 200 can be invoked. There are large number of different views of different high courts but in my personal view both are absolutely distinct. Section 200 complaint if you contemplate that if you read that provision you would realize that complaint can be in respect of non-cognizable offenses also. It does not preclude a person from filing a complaint with regard to cognizable offense but when section 155 of CRPCs contemplates that when you approach police station and police find that the offenses the information discloses only non-cognizable offense then what is the option left he has to refer it to the magistrate concern. So, where he has to go he has to invoke section 200 because it is a non-cognizable offense. So, predominantly section 200 is meant for invoking non-cognizable complaint with regard to non-cognizable offenses but I must make it clear that it does not preclude a person from invoking section 200 in respect of cognizable offense also. Now, therefore the taste is where a person without police intervention without police aid is in a position to collect the evidence and prove his case in the court of law then he has to invoke section 200 because there is no requirement of police assistance. There is no requirement of investigation. He has sufficient material mostly in all commercial matters where criminal breach of trust is there, cheating is there in most of the cases the informant is having all the documents all the entries and whatever material he might have it might be possible to prove case in the court of law. So, in such cases where the police intervention is not necessary a person has to invoke section 200 but when case involves a cognizable offense of a complex nature or even if it is a commercial transaction but it involves forgery and many other such very complicated issues which cannot be proved by the private complainant under section 200 complaint by his own efforts and he thinks or the judge thinks that without the effective assistance of police material will not be possible to be collected then he has to order section 156. So, in a complaint under section 200 also magistrate is entitled to order investigation under 156. But that would be a different thing where the judge comes to a conclusion that yes, here police assistance is needed and what I'm talking about is a separate application of different kind under section 156. And it should be with supporting FED with and it should be preceded by two steps which I have already spoken of. So, only if this kind and additional requirement is that by the judge made law is that when a magistrate orders 156.3 the order must reflect application of mind and addressing the issue whether police assistance to investigate cases necessary or not. Only if these conditions are fulfilled you would be entitled to file 156.3 application and magistrate would be justified in ordering 156.3 investigation by registering FIR and commencing investigation. So, please bear in mind section 200 is distinct and section 156.3 is different. Now, what I spoke just now about Babu Venkatesh judgment. Now, in Bhartiya Nagrik Suraksa Savita it has been incorporated in the form of statutory provision. So, now it is section 175 subsection 3 which clearly incorporates the law laid down by Priyanka Srivastava followed in Babu Venkatesh and Kailash Vijay Varge. These are the three decisions that throw light on the power of magistrate under section 156.3. So, those requirements which was laid down by a judge made law is now incorporated in Bhartiya Nagrik Suraksa Savita in the form of section 175.3. But there are two additional requirements which are incorporated. As I pointed out that approach to police under 154. Now, it is 173.1 and approach to superintendent under 154.3. Now, it is 173 subsection 3 and application with support of the FEDB and additional requirement judge has to comply with is that if he finds from the inquiry by necessary inquiry and after hearing the submission of the police officer. So, these are two additional requirements which is incorporated under new section. So, not only these three steps, but now additional requirement that judge must by necessary inquiry find that this is a case worth sending for police investigation and that satisfaction and opportunity to police to give his submissions with regard to ordering police investigation into the matter on because it is quite possible that on the basis of the application he might have done certain preliminary steps of holding inquiry and he is seized of many such material which would go to show that the police investigation is not at all required. So, police officer is given one opportunity to object to the ordering of police investigation under section 175 subsection 3. So, this is all about the today's discussion and I am really glad that Mr. Vikas has given me this opportunity to share my views on this important aspect and during this practice, my practice as a for all these years, most of the people are ignoring the aspect of scope and extent of preliminary inquiry. They are not realizing the lurking danger in permitting police to conduct preliminary inquiry because only police is interested in getting the civil the transactions of civil nature settle by resorting to this preliminary inquiry. So, it is very important that this is decided one thing I forgot that in Lalita kumbari's case also there is a reference that enquiry word inquiry denotes only magistral inquiry. So, we can also argue in a given case that when police is holding preliminary inquiry, all safeguards that are available at this stage of investigation should per se be made applicable to the steps that are taken under the preliminary inquiry because in Lalita kumbari, it has been stated that inquiry means only magistral inquiry either under section 159 or section 200 or any sort of magistral inquiry is known to be a preliminary inquiry. There is no concept of preliminary inquiry by police. So, that inquiry is different and therefore it is one word which has been used in Lalita kumbari is that inquiry before the registration of FIR or investigation after the registration of FIR both stand on the same footing. So, if at all such situation arises, we can take clue from this judgment or if the judge is not willing to follow that, then we will have to argue that no such preliminary inquiry is permitted because it would violate the rights under section 162, section 25, 26 of the evidence act and section article 20 of the constitution of India. So, I thank you Mr. Vikas for giving me this opportunity and I'm thankful to all the persons who have joined this webinar and I hope this webinar would be certainly useful to all concern. Of course, as usually your session gives us good insights. There's one question by we ask he says when the FIR is registered in an old law then the new law will be applicable to old law too when the matter is filed in the court. No, it will be applicable from 1st July. So, whatever FIRs are already registered or whatever investigations already commenced would remain unaffected by the new law. New law will have to be implemented from 1st July, 2024. Next question is summons to witness of the section 162 to persons within the police station of neighboring police station. And can it be said that the PE, a person residing beyond the jurisdiction, beyond this station or neighboring state cannot be summoned? Yes, certainly we have objected to it and we have got stay also in many cases such cases. So, it is confined to the local jurisdiction of the police station where investigation is going on or adjoining the police station. So, if you want to summon somebody from other jurisdiction, it is not permissible under 160. I will just check it out on the YouTube if we have some session. Any question? Generally, it is full of phrases on the YouTube. So, they are in sync with what we are saying. They have actually cherished what we have learned from you today and it's always an enriching session from your side. Thank you, sir, for sharing the knowledge. I'm just sharing the tomorrow's topic. This is modes of challenge to a degree by Mr. S.R. Soma Shekhar, a former district judge from Bengaluru. Do stay connected with us tomorrow at 6 p.m. And thank you, Mr. Pandya, for sharing the knowledge. Thank you. And we always get us at the end risk and keep looking forward for your patronage. Thank you, everyone. Stay safe. Stay blessed. Thank you.