STATE BY LOKAYUKTHA POLICEversusH. SRINIVAS

                         [2018] 4 S.C.R. 547                             547


               STATE BY LOKAYUKTHA POLICE                                A
                                  v.
                           H. SRINIVAS
                 (Criminal Appeal No. 775 of 2018)
                                                                         B
                           MAY 18, 2018
       [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
      Investigation:
       General Diary Entry – Concerning preliminary enquiry –            C
Failure – Effect of – Held: Failure to make entry in General Diary
Concerning preliminary enquiry would not be per se illegal – There
is difference between irregularity and illegality – Obligation of
maintenance is part of course of conduct of the concerned officer,
which may not itself have any bearing on the criminal trial unless       D
some grave prejudice going to the root of the matter is shown to
exist, at the time of trial – CrPC also does not bar any investigation
where General Diary entry is not made – Code of Criminal
Procedure, 1973 – Police Act, 1861 – s. 44.
      Jurisdiction:                                                      E
       Writ jurisdiction and inherent jurisdiction – Scope of – Held:
High Court is ill-equipped to answer questions of facts in exercise
of its writ or inherent jurisdictions – The court cannot convert a
mixed question of law and fact concerning the merits of the case,
into a pure question of law – High Court                                 F
      Judgments/Orders:
     Reading of judgment – Held: Judgments are not legislations
– They have to be read in the context and background discussions.
      Allowing the appeals, the Court                                    G

       HELD : 1. The concept of maintaining General Diary has
its origin under 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
                                                                         H
                                 547
548            SUPREME COURT REPORTS                       [2018] 4 S.C.R.


A     per se may not be rendering the whole prosecution illegal. There
      is also no 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. However, on
      the other hand, such non-maintenance of General Diary may have
B
      consequences on the merits of the case, which is a matter of
      trial. Moreover, the explanation of the genesis of a criminal case,
      in some cases, plays an important role in establishing the
      prosecution’s case. The binding conclusions reached in the Lalitha
      Kumari case is an obligation of best efforts for the concerned officer
C     to record 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
D
      law and fact concerning the merits of the case, into a pure question
      of law may not be proper in light of settled jurisprudence. Nothing
      in Lalitha Kumari case justifies the conclusion reached by the
      High Court. Judgments are not legislations, they have to be read
      in the context and background discussions. [Paras 17, 18][557-
E     G-H; 558-A-D]
             2. 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
F     prejudice going to the root of matter is shown to exist at the time
      of the trial. Conspicuous absence of any provision under CrPC
      concerning the omissions and errors during investigation also
      bolsters the conclusion reached herein. [Para 19][558-E-F]
            3. Moreover, the requirement of the preliminary enquiry
G     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.
      [Para 20] [558-F-G]
H
      STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS                         549


      Lalitha Kumari v. Govt. of A.P. & Ors. (2014) 2 SCC               A
      1 : [2013] 14 SCR 713 ; Smt. Kesar Devi v. Union of
      India & Ors. (2003) 7 SCC 427 : [2003] 2 Suppl. SCR
      1; Union of India and Ors. v. T. Nathamuni (2014) 16
      SCC 285 : [2014] 12 SCR 297 ; Niranjan Singh and
      Ors. v. State of Uttar Pradesh AIR 1957 SC 142 : [1956]
                                                                        B
      SCR 734 – relied on.

      P. Slirajuddin v. State of Madras (1970) 1 SCC 595 :
      [1970] 3 SCR 931 – referred to.

                         Case Law Reference                             C
      [2013] 14 SCR 713           relied on            Para 17

      [2003] 2 Suppl. SCR 1       relied on            Para 17

      [2014] 12 SCR 297           relied on            Para 19          D
      [1956] SCR 734              relied on            Para 19

      [1970] 3 SCR 931            referred to          Para 30

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                  E
No.775 of 2018.

      From the final Judgment and Order dated 22.08.2016 of the High
Court of Karnataka at Bangalore in CRLP No.7166/2015

                               WITH                                     F

      Criminal Appeal Nos.776-779 of 2018.

      Devadatt Kumar, AAG, Joseph Aristotle S., Ms. Priya Aristotle,
Rajesh Inamdar, Javedur Rehman, Aditya Bhat, Advs. for the Appellant.
                                                                        G
       Siddarth Luthra, Sr. Adv., Purushottam Sharma Tripathi, Gautam
Kazanchi, Neelkanth Dhyaneshwar Aher, Ankolekar Gurudatta,
P.S. Sudheer, Ms. Shruti Jose, Rishi Maheswari, Bharat Sood, Advs.
for the Respondent.
                                                                        H
550            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A           The Judgment of the Court was delivered by
            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
B     2015, wherein the High Court 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.
C
            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
D     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,
E           Town Panchayath, Jagaluru has earned only Rs. 17,25,000 from
            known source and his disproportionate asset is Rs. 24,54,300-00
            and the Percentage of Disproportionate asset is 142.27%.
            Presently AE residing at Jagaluru Town, J.C.R. Extension in the
            first floor of Khasim Miyya’s (owner of Grocery) house. This
F           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)
G
             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.
H
      STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS                               551
                  [N. V. RAMANA, J.]

103/2013 u/Sec. 13(1)(e) r/w. Section 13(2) of the PC Act, dated              A
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
                                                                              B
investigation, a Final Report was prepared and filed 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       C
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                 D
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. 5606-09/2017]. On 07.05.2013,           E
final Report was prepared 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       F
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              G
seizure proceedings in respect of passbooks and also freezing of the
accounts etc. One Smt. Sowbagyamma (mother-in-law of
C. Mrutyunjayaswamy) filed W.P. No. 38451 of 2014 seeking inter alia
quashing of the seizure proceedings in respect of passbooks and against
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552            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A     freezing of certain bank accounts. One H.M. Prabhu (brother-in-law of
      C. Mrutyunjayaswamy) filed W.P. No. 38498 of 2014 seeking inter alia
      quashing of the seizure proceedings.
             6. The main contention raised by the respondents herein, before
      the High Court as well as this Court, is that the preliminary enquiry and
B     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 non-compliance of the same resulted in vitiating the
      entire proceeding.
           7. The High Court clubbed all the cases as discussed above and
C     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?
D           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
E
      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.
F           ii. Reliance was placed on the Case of Lalitha Kumari, (2014)
                2 SCC 1,paragraph 120.7 and 120.8, to come to 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
G                would be rendered non-est 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 full-fledged trial, the State of Karnataka and other authorities
H     are in appeal before this Court.
       STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS                               553
                   [N. V. RAMANA, J.]

      10. Mr. Devadatt Kamat, learned AAG, appearing on behalf of              A
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,     B
          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.
                                                                               C
      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 conduction of such
         preliminary enquiry in corruption cases, for safeguarding the         D
         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 non-application
                                                                               E
           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
                                                                               F
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.                         G
      12. Heard the arguments advanced by the learned counsels
appearing on behalf of the parties and perused the material available on
record. At the outset, we are in agreement with the contention of the
appellant-State that the consideration provided to the Criminal
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554            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A     Petition No. 7166 of 2015, is highly insufficient, which in other cases
      may have itself mandated a remand for non-application 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.
B
             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
C     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 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
D     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-
E           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
F           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 day-to-day basis (on
            each day, starting with new number 1), the General Diary entry
            reference is also mentioned simultaneously in the FIR book, while
G           FIR number is mentioned in the General Diary entry since both of
            these are prepared simultaneously.
            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
H
STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS                               555
            [N. V. RAMANA, J.]

case numbers given in courts. Due to this reason, it is possible to     A
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          B
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           C
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           D
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           E
requirement 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.
…                                                                       F
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        G
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
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556             SUPREME COURT REPORTS                         [2018] 4 S.C.R.


A           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
B     as under-
            115. Although, we, in unequivocal terms, hold that Section 154 of
            the Code postulates 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
C           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.
D           …
            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
E           servants.
                                                         (Emphasis supplied)
            16. Thereafter this Court concluded in the following manner-
            Conclusion/Directions
F           120. In view of the aforesaid discussion, we hold:
            …
            120.5. The scope of preliminary inquiry is not to verify the
            veracity or otherwise of the information received but only to
G           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:
H
      STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS                              557
                  [N. V. RAMANA, J.]

         (a) Matrimonial disputes/family disputes                            A
         (b) Commercial offences
         (c) Medical negligence cases
         (d) Corruption cases
         (e) Cases where there is abnormal delay/laches in initiating
                                                                             B
         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.
                                                                             C
      120.7. While ensuring and protecting the rights of the
      accused and the complainant, a preliminary inquiry should
      be made time-bound and in any 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.
                                                                             D
      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               E
      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
                                                                             F
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           G
reached by the High Court by 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].
                                                                             H
558                 SUPREME COURT REPORTS                              [2018] 4 S.C.R.


A            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 non-maintenance of General Diary may have
B
      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
C     120.8 of Lalitha Kumari Case (Supra) is an obligation of best
      efforts for the concerned officer to record 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
D
      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
E     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
F     also bolsters the conclusion reached herein.2
             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
G     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.
      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.
H
      STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS                               559
                  [N. V. RAMANA, J.]

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


Kalpana K. Tripathy                                        Appeals allowed.
                                                                              B




                                                                              C




                                                                              D




                                                                              E




                                                                              F




                                                                              G




                                                                              H