STATE BY LOKAYUKTHA POLICE versus H. SRINIVAS
[2018] 4 S.C.R. 547, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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STATE BY LOKAYUKTHA POLICE
v.
H. SRINIVAS
(Criminal Appeal No. 775 of 2018)
MAY 18, 2018
[N. V. RAMANA  AND  S. ABDUL NAZEER, JJ.]
Investigation:
General Diary Entry – Concerning preliminary enquiry –
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
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:
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
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
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
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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
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
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
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-
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
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
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]
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Lalitha Kumari v. Govt. of A.P. & Ors. (2014) 2 SCC
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]
SCR 734 – relied on.
P. Slirajuddin v. State of Madras (1970) 1 SCC 595 :
[1970] 3 SCR 931 –  referred to.
Case Law Reference
[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
[1956] SCR 734
    relied on
Para 19
[1970] 3 SCR 931
    referred to
Para 30
CRIMINAL APPELLATE JURISDICTION :  Criminal Appeal
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
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.
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.
STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS
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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
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.
4. The first set of facts pertain to Crime No. 103/2013 registered
under Section 13(1)(e) read with Section 13(2) of the Prevention of
Corruption Act, 1988 [PC Act] against one H. Srinivas (respondent in
SLP (Crl.) No. 5391/2017). On 25.10.2013, Police Inspector, Karnataka
Lokayuktha, Davanagere Division, submitted a Source Report against
the Respondent/accused, who was working as Assistant Engineer,
Jagaluru Pattana Panchayat, Davangere District, for having acquired
disproportionate assets against his known source of income. It may be
relevant to extract a part of the source report as under-
It is hereby stated that AE Sri. H. Srinivasa, Assistant Engineer,
Town Panchayath, Jagaluru has earned only Rs. 17,25,000 from
known source and his disproportionate asset is Rs. 24,54,300-00
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
source report is submitted in order to file out more details
about additional property details, gold, silver, and lockers
in the person’s house, (2) and Assistant Engineer office,
Town Panchayath, Jagaluru and (3) Smt. Gowramma’s
sister Smt. Umadevi’s house at J.C.R. Extension.
          (emphasis supplied)
It is said that the aforesaid report was prepared basing on a
secret information, received from an informant. The Superintendent of
Police endorsed taking action against the respondent under Section
13(1)(e), 13(2) of PC Act. Thereafter, the Deputy Superintendent of
Police, Karnataka Lokayuktha, Davanagere registered Crime No.
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103/2013 u/Sec. 13(1)(e) r/w. Section 13(2) of the PC Act, dated
29.10.2013, against the Respondent herein. In the column No. 3(d) of
the FIR, General Diary reference entry No and time is noted as ’04
11:30 AM’. The State herein has not disputed the fact that there was
no entry in the General Diary, during the conduction of the preliminary
enquiry. It may not be out of context to note that after completion of the
investigation, a Final Report was prepared and filed before the appropriate
court. Aggrieved by the manner in which the police have conducted the
investigation, the respondent herein, filed a Criminal Petition No. 7166
of 2015, before the Karnataka High Court.
5. The second set of facts reveals that on 21.07.2011, the
Karnataka Lokayuktha Police, basing on a confidential information about
amassing of the disproportionate assets by one C. Mrutyunjayaswamy
(respondent in SLP (Crl.) No. 5606/2017), who was working as
Secretary to Government, PWD, Vikas Saudha, Bengaluru, prepared a
Source Report recommending investigation into the assets of the aforesaid
accused. Superintendent of Police, Karnataka Lokayuktha, City
Division, Bengaluru by Order No. LOK/INV(G)SP/CITY/01/2011, dated
21/07/2011 ordered his deputy to register a FIR. On the same date, a
FIR being Crime No. 28/2011 was registered accordingly. On
22-23.07.2011, the investigating team searched the office, residence,
bank lockers and other places of the contesting respondents in this
appeal
[arising out of SLP (Crl.) No. 5606-09/2017]. On 07.05.2013,
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
of Lokayuktha and consequently the FIR dated 21.07.2011 filed by the
deputy Superintendent of Police, Karnataka Lokayuktha Police in Crime
No. 28 of 2011 and all the subsequent proceedings on the file of the
XXIII Addl. City Civil and Special Judge, Bangalore (CCH No. 23).
Dr. H.M. Hema (wife of C. Mrutyunjayaswamy) filed a writ petition
being W.P. No. 38450 of 2014, seeking inter alia quashing of the
seizure proceedings in respect of passbooks and also freezing of the
accounts etc. One Smt. Sowbagyamma (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
STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS
[N. V. RAMANA, J.]
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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
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
framed common questions of law, which are-
a.  Whether there could be a preliminary enquiry conducted by the
Police as to whether a cognizable offence had been
committed, even in the absence of a complaint, or even prior to
the registration of an FIR?
b. Whether Complainant could also act as the investigating
Officer?
c.  Whether an illegal search and seizure would be fatal to the
case of the prosecution?
8.  By the impugned order the High Court quashed the FIR on the
main grounds as under-
i.   That the preliminary report conducted by the police was done
without any entries made in the Station Diary- as to the
conduction of the preliminary enquiry.
ii.   Reliance was placed on the Case of Lalitha Kumari, (2014)
2 SCC 1,paragraph 120.7 and 120.8, to come to a conclusion
that it is mandatory to make entries in the Station Diary
and
failure of the same would be fatal for the prosecution.
iii. That any proceedings conducted after such alleged illegality
would be rendered 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
are in appeal before this Court.
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10. Mr. Devadatt Kamat, learned AAG, appearing on behalf of
the State has contended that-
i.   That the impugned order is completely cryptic and without
reasoning.
ii.    That the conclusion reached in Para 120.8 of Lalitha Kumari
Case (Supra), needs to be read in context of earlier discussion,
wherein it is clear that for lodging an FIR, entry in the General
Diary is not a pre-condition.
iii.   Defect/irregularity in investigation cannot result in quashing of
the proceedings.
iv.   That the Lodging of the FIR is not a precondition for initiation
of criminal proceedings.
v.   He has placed reliance on catena of judgments, wherein this
Court has stamped its approval for conduction of such
preliminary enquiry in corruption cases, for safeguarding the
interest of the government servants from unwarranted
prosecutions.
vi.  The consideration provided by the High Court in the Criminal
Petition No. 7166 of 2015 (concerning the case of H. Srinivas)
is highly insufficient and would clearly reflect non-application
of mind.
11. On the other hand, Mr. Siddharth Luthra, learned senior counsel
appearing on behalf of respondent (H. Srinivas), has drawn our attention
to the fact that the Lalitha Kumari Case (Supra), was a declaratory
judgment. This Court has time and again emphasised the significance of
Station Diary entry for conduction of the preliminary enquiry thereby
requiring the strict adherence to the conclusions reached in the Lalitha
Kumari Case (Supra). He
argued that in the present case, the illegality
goes to the root of the matter thereby mandating the quashing of the FIR
on a pure question of law. We may note that the other respondents have
not advanced any arguments concerning the third issue.
12. Heard the arguments advanced by the learned counsels
appearing on behalf of the parties and perused the material available on
record. At the outset, we are in agreement with the contention of the
appellant-State that the consideration provided to the Criminal
STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS
[N. V. RAMANA, J.]
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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.
13.  As both sides have placed excessive reliance on the case of
Lalitha Kumari Case (Supra), it would be appropriate for us to discuss
certain nuances of this case in detail. This Court therein, having noticed
certain contradictory judgments concerning the interpretation of Section
154 of CrPC, referred the matter to a larger Bench for providing a
mechanism under the criminal justice system imbued with due process.
14. In the aforesaid case, this Court while repelling the contention
by the learned ASG appearing for the State of Chhattisgarh that recording
of the first information under Section 154 in the “book” is subsequent to
the entry in the General Diary, held that the concept of General Diary
does not flow from the Section 154 of CrPC, 1973 and the same conclusion
would be apparent from the departure made in the present Section 154
of CrPC when compared with Section 139 of the Code of Criminal
Procedure, 1861. It may be relevant to extract some paragraphs, which
may have bearing on the case concerned-
64. The
General Diary is a record of all important transactions/
events taking place in a police station, including departure and
arrival of police staff, handing over or taking over of charge,
arrest of a person, details of law and order duties, visit of senior
officers, etc. It is in this context that gist or substance of each
FIR being registered in the police station is also mentioned in the
General Diary since registration of FIR also happens to be a very
important event in the police station. Since General Diary is a
record that is maintained chronologically on 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
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
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case numbers given in courts. Due to this reason, it is possible to
keep a strict control and track over the registration of FIRs by the
supervisory police officers and by the courts, wherever
necessary. Copy of each FIR is sent to the superior officers and
to the Judicial Magistrate concerned.
66. On the other hand, General Diary contains a huge number of
other details of the proceedings of each day. Copy of General
Diary is not sent to the Judicial Magistrate having jurisdiction over
the police station, though its copy is sent to a superior police
officer. Thus, it is not possible to keep strict control of each and
every FIR recorded in the General Diary by the superior police
officers and/or the court in view of enormous amount of other
details mentioned therein and the numbers changing every day.
67. The signature of the complainant is obtained in the FIR book
as and when the complaint is given to the police station. On the
other hand, there is no such requirement of obtaining signature of
the complainant in the General Diary. Moreover, at times, the
complaint given may consist of large number of pages, in which
case it is only the gist of the complaint which is to be recorded in
the General Diary and not the full complaint. This does not fit in
with the suggestion that what is recorded in the General Diary
should be considered to be the fulfilment/compliance with the
requirement of Section 154 of registration of FIR. In fact, the
usual practice is to
record the complete complaint in the FIR book
(or annex it with the FIR form) but record only about one or two
paragraphs (gist of the information) in the General Diary.
…
70.  If at all, there is any inconsistency in the provisions of
Section 154 of the Code and Section 44 of the Police Act, 1861,
with regard to the fact as to whether the FIR is to be registered in
the FIR book or in the General Diary, the provisions of Section
154 of the Code will prevail and the provisions of Section 44 of
the Police Act, 1861 (or similar provisions of the respective
corresponding Police Act or Rules in other respective States) shall
be void to the extent of the repugnancy. Thus, FIR is to be
recorded in the FIR book, as mandated under Section 154
of the Code, and it is not correct to state that information
STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS
[N. V. RAMANA, J.]
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will be first recorded in the General Diary and only after
preliminary inquiry, if required, the information will be
registered as FIR.
(Emphasis supplied)
15. On the aspect of the preliminary enquiry the court discussed
as under-
115. Although, we, in unequivocal terms, hold that Section 154 of
the Code postulates the mandatory registration of FIRs on receipt
of all cognizable offences, yet, there may be instances where
preliminary inquiry may be required owing to the change in
genesis and novelty of crimes with the passage of time. One such
instance is in the case of allegations relating to medical
negligence on the part of doctors. It will be unfair and inequitable
to prosecute a medical professional only on the basis of the
allegations in the complaint.
…
117. In the context of offences relating to corruption, this
Court in P. Sirajuddin[P. Sirajuddin v. State of Madras, (1970)
1 SCC 595 : 1970 SCC (Cri) 240] expressed the need for a
preliminary inquiry before proceeding against public
servants.
(Emphasis supplied)
16. Thereafter this  Court concluded in the following manner-
Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
…
120.5. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable offence.
120.6.  As to what type and in which cases preliminary inquiry is
to be
conducted will depend on the facts and circumstances of
each case. The category of cases in which preliminary inquiry
may be made are as under:
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(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months’ delay in
reporting the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the
accused and the complainant, a preliminary inquiry should
be made 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.
120.8. Since the General Diary/Station Diary/Daily Diary is
the record of all information received in a police station,
we direct that all information relating to cognizable offences,
whether resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously reflected in
the said diary and the decision to conduct a preliminary
inquiry must also be reflected, as mentioned above.
(Emphasis supplied)
17.  In light of the discussion above, the absence of entries in the
General Diary concerning the preliminary enquiry would not be per se
illegal. Our attention is not drawn to any bar under any provision of
CrPC barring investigating authority to investigate into matter, which
may for some justifiable ground, not found to have been entered in the
General Diary right after receiving the Confidential Information. It may
not be out of context to mention that nothing found in the paragraph
120.8 of the Lalitha Kumari Case (Supra), justifies the conclusion
reached by the High Court by 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].
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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
consequences on the merits of the case, which is a matter of trial.
Moreover, we are also aware of the fact that the explanation of the
genesis of a criminal case, in some cases, plays an important role in
establishing the prosecution’s case. With this background discussion we
must observe that the binding conclusions reached in the paragraph
120.8 of Lalitha Kumari Case (Supra) is an obligation of best
efforts for the concerned officer to record all events concerning an
enquiry. If the Officer has not recorded, then it is for the trial court to
weigh the effect of the same for reasons provided therein. A court
under a writ jurisdiction or under the inherent jurisdiction of the High
Court is ill equipped to answer such questions of facts. The treatment
provided by the High Court in converting a mixed question of law and
fact concerning the merits of the case, into a pure question of law may
not be proper in light of settled jurisprudence.
19. Our conclusion herein is strengthened by the fact that CrPC
itself has
differentiated between irregularity and illegality. The obligation
of maintenance of General Diary is part of course of conduct of the
concerned officer, which may not itself have any bearing on the criminal
trial unless some grave prejudice going to the root of matter is shown to
exist at the time of the trial.1 Conspicuous absence of any provision
under CrPC concerning the omissions and errors during investigation
also bolsters the conclusion reached herein.2
20. Moreover, the requirement of the preliminary enquiry is well
established by judicial precedents as a check on mushrooming false
prosecution against public servants by persons who misuse the process
of law for their personal vengeance. Such preliminary check would be
beneficial and has been continuously approved by catena of judgments
of this Court. [refer to P. Sirajuddin Case, (1970) 1 SCC 595, Lalitha
Kumari Case (Supra)]. In light of the discussion, we cannot sustain the
reasoning provided by the High Court on this aspect.
1Union of India and Ors. v. T. Nathamuni, (2014) 16 SCC 285
2Niranjan Singh and Ors. V. State of Uttar Pradesh, AIR 1957 SC 142.
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21.  Therefore, we allow these appeals and, accordingly, set aside
the order of the High Court. Before we part it may be noted that we
have not expressed any views on merits of the case and the trial court is
to proceed expeditiously uninfluenced by any observations made herein.
Kalpana K. Tripathy
Appeals allowed.
STATE BY LOKAYUKTHA POLICE v. H. SRINIVAS
[N. V. RAMANA, J.]