The Central Bureau of Investigation (CBI) could be in the thick of political controversy these days, but its utility has not diminished even a bit. This is evident from the surge in the registration of cases and initiation of preliminary inquiries by the agency, including in high-profile cases like the coal blocks allocation case and against the Vedanta group chairman.
While it is an old agency, the workings of the CBI, the processes through which it initiates inquiries and how they are different from the usual criminal proceedings under the Criminal Procedure Code of 1908, especially with regard to holding a preliminary enquiry, can be dwelled upon in detail.
The CBI has been constituted by Section 2 of the Delhi Special Police Establishment (DSPE) Act, 1946, which empowers the Central government to constitute a special force for the investigation of certain offences in the Union Territories. It inter alia inquires and investigates into offences pertaining to corruption and other malpractices involving public servants, including employees of the Union of India.
The CBI takes up cases for investigation on the basis of information collected by them from their own sources, received from members of the public, cases referred to them by the Central Vigilance Commission (CVC) and the administrative authorities or entrusted by the High courts or Supreme Court. The cases are criminal in nature inter alia bribery, corruption, forgery, criminal breach of trust, possession of assets disproportionate to known sources of income, cheating or cases which need expert police investigation for arriving at a conclusion.
The ‘CBI Manual’ was made by the Central government providing for detailed procedure as regards the mode and manner in which complaints against public servants are to be dealt with, which received the approval of the Supreme Court of India in VineetNarain and Ors. v. Union of India and Anr. AIR 1998 SC 889.
The Supreme Court had held: “The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBIs functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.”
Upon a complaint being made or source information being received, verification may be started by the agency. Verification may lead to registration of a preliminary enquiry or a filing a regular case. Where material or information clearly indicates a case of misconduct and not criminalmisconduct, verification may lead to the matter being referred for departmental action and thus neither RC or PE is registered.
If a preliminary enquiry is registered, and upon enquiry if the complaint is found to have substance, an RC is registered. From then on, the case moves from the stage of enquiry into the stage of investigation. The Criminal Procedure Code kicks in after registration of the RC and the rest of the procedure follows suit.
After preliminary enquiry, a case is registered by the CBI for formal inquiry, as ordered by a competent authority. Para 9.1 of the CBI Manual provides thus:
“When, a complaint is received or information is available which may, after verification as enjoined in this Manual, indicate serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 CrPC., a Preliminary Enquiry may be registered after obtaining approval of the Competent Authority.”
Sometimes the High Courts and Supreme Court also entrust matters to Central Bureau of Investigation for enquiry and submission of report. In such situations also… a ‘Preliminary Enquiry’ may be registered after obtaining orders from the Head Office.”
While PE is not mandatory in all CBI cases, courts have held in the past that a preliminary enquiry of a limited nature is permissible even in respect of cognizable cases. ‘High profile’ persons, dignitaries, persons in authority, celebrities, etc. are sometimes at the receiving end due to reckless allegations, mostly made anonymously, which might mar their respective careers. To obliterate the possibility of their unnecessary involvement in such cases, a preliminary enquiry may be had to ascertain facts. Such an enquiry has also been held to be advisable if a pure civil dispute is sought to be brought within the arena of criminal law by the complainant to wreak vengeance against an adversary. There can, however, be no exhaustive enumeration of cases warranting a preliminary enquiry; each case has to be considered on the basis of its own peculiar facts [2008(3)CHN857].
Mitter, J. in P. Sirajuddin v. State of Madras AIR 1971 SC 520 expressed his views on the subject in the following words: (SCC p. 601, para 17):
“Before a public servant, whatever be hisstatus, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general …. The means adopted no less than the end to be achieved must be impeccable.”
In cases in which the information available appears to the CBI to be authentic and definite so as to make out a clear cognisable offence or to have enough substance in it, the CBI may register a regular case under Section 154 of the Criminal Procedure Code.
Thus, an FIR registered by the CBI is called a ‘Regular Case.’ Interestingly, the words “First Information Report” or FIR are nowhere mentioned in the Code; however, these words are understood to mean information recorded under Section 154 of the Code.
According to the CBI Manual, when information available is adequate to indicate commission of a prima facie cognizable offence or its discreet verification leads to similar conclusion, a regular case must be registered instead of a preliminary enquiry. It is, therefore, necessary that the SP must carefully analyze material available at the time of evaluating the verification report submitted by Verifying Officer so that registration of PE is not resorted to where an RC can be registered.
Thus, a discretion or option or latitude is available to the CBI to register an RC or to resort to a PE, which, of course, must be supported by careful analysis of material.
Discretion is also available to the CBI to decide whether to convert a PE into an RC. A preliminary enquiry by the CBI will result either in registration of a regular case or in departmental action, or referred to the department through a self contained note for such action, or being closed for want of proof. As soon as “sufficient material disclosing the commission of a cognizable offence” is available during the course of preliminary enquiry and it is felt that the outcome of investigation is likely to culminate into prosecution, a regular case should be registered at the earliest. In deciding whether a PE should be converted into an RC, the Superintendent of Police must “personally satisfy him/her self” that such a conversion will lead into prosecution. Thus, the procedure vests the CBI with a discretionary power which is missing in normal proceedings under Section 154 of the Criminal Procedure Code. However, such a conversion must be done be with “due care and caution” avoiding “hasty or premature action.”
In AIR2007SC351, the Supreme Court examined if was obligatory on part of the CBI to lodge a First Information Report (RC) and carry out a full- fledged investigation about the truthfulness or otherwise of the allegations made in a complaint. It was held that the CBI, being a statutory authority, has a statutory duty to carry out investigation in accordance with law. However, barring exceptional cases, it is not within the province of the court to direct the investigative agency to carry out investigation in a particular manner or convert a preliminary inquiry into a regular case.
Internal CBI rules allow a PE whereas non CBI police stations do not have internal rules. They are governed purely by Section 154 of the Criminal Procedure Code which has no provision for carrying out a preliminary inquiry by the police. Thus, in normal criminal proceedings, in terms of Section 154 of the Code, when a report isreceived relating to the cognizable offence, a First Information Report must be registered without any exercise of discretion by the police officer.
However, despite the absence of a provision, such enquiries even under the Code are not unknown. All police officers check the substance of a complaint before registering an FIR. Expert criminal lawyers and the judiciary have been divided in their views with regard to whether the preliminary enquiry process in CBI cases can be imported into normal criminal proceedings. In a country like India, where thousands of complaints are filed every day, if each complaint is compulsorily registered as an FIR without any application of mind, too many matters will go for investigation. If this process is not followed, the criminal justice system may collapse. Secondly, once an FIR is registered and becomes the subject matter of an investigation, the rights and personal liberty of an accused person are seriously curtailed. The principle that a law which deprives a person of his personal liberty must be reasonable both from the standpoint of substantive as well as procedural aspects is by now a firmly established principle of the Constitutional law.
On the other hand, if a preliminary enquiry is allowed, there is a substantial and palpable risk of abuse of power by the police. The basic principle behind compulsory registration of an FIR is to ensure transparency in the criminal justice delivery system.
In AIR2012SC1515, a Bench of three judges examined the hitherto divergent judicial opinions of the courts on the issue whether under Section 154 of CrPC, a police officer was bound to register an FIR when a cognizable offence was made out or whether police officer had an option, discretion or latitude, of conducting some kind of preliminary enquiry before registering an FIR.
The Bench observed that it had become extremely important to have a clear enunciation of law and adjudication by a larger Bench of the Supreme Court. The matter was referred to a Constitution Bench of five judges for an authoritative judgment which was delivered in November 2013.
With regard to the provision of PE in the CBI Manual, the SC stated that the Crime Manual of the CBI “is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure”.
The SC also pointed out that the CBI is constituted under a Special Act and derives its power to investigate from this Act. Sections 4(2) and 5 of the Criminal Procedure Code permit special procedures to be followed for special Acts. Further, the special provisions contained in the DSPE Act relating to the powers of the CBI are protected also by Section 5 of the Code. In view of the specific provisions in the Code, the powers of the CBI under the DSPE Act cannot be equated with the powers of the regular state police under the Code.
The Supreme Court set aside the contention of various state governments that a preliminary inquiry was necessary before registering an FIR to avoid frivolous cases. However, it held that depending on the facts of a case, preliminary inquiry may be allowed in matrimonial disputes, commercial offences, and in medical negligence and corruption cases. Preliminary inquiry would also be done in cases including those involving cognizable crimes where there is an abnormal and unreasonable delay of over three months in reporting the matter to the police. Such an inquiry would be made time-bound, not exceeding seven days. The SC, however, said a preliminary inquiry should be conducted not to verify the reliability of theinformation but to ascertain whether a cognizable offence was disclosed or not.
The Guidelines on preliminary enquiry in non-CBI criminal proceedings are laid down as under:
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant a preliminary inquiry.
While the judgment may have correctly interpreted the provisions of section 154 in mandating registration of an FIR where “information discloses commission of a cognizable offence”, in denying the Police any right to verify the reliability of the information and in holding that failing registration, action should be taken against the Police, the judgment appears to ignore the deficiencies of the Justice delivery system in India. To name a few: the inadequacy of the Police force, lack of proper training, scientific aids, adequate budgets and the huge burden of cases on the judiciary. There is also a growing trend of civil disputes being patently coloured as criminal disputes due to the absence of quick relief in civil proceedings. False allegations and misuse of criminal law are on the rise. While filing a false complaint in the U.S. can lead to serious and multiple criminal consequences in India.
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