With the recent slew of events concerning the actions of the Delhi Police Force in effecting preventive action against the Indian Wrestler’s Protest and bearing the force of Preventive Orders issued by the Executive Magistrate under Section 144 of the Criminal Procedure Code (CrPC) to maintain peace in the area, a stringent evaluation of the prevailing laws and the Supreme Court directives found in landmark judgments need an exhaustive consultation.
In, Lalita Kumari vs Govt of Uttar Pradesh [W.P.(Crl) No; 68/2008]: the question before the Supreme Court was whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to the commission of a cognizable offence under section 154 of the Code of Criminal Procedure, 1973 or the police officer has the power to conduct a preliminary inquiry to test the veracity of such information before registering the same.
The Supreme Court while affirming the mandatory registration of FIR postulated the following observations:
i) Registration of FIR is mandatory under section 154 of the Code, if the information discloses the commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
v) 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…”
Specific Instance
Consequently, in January 2023, Indian wrestlers began a sit-in protest seeking a custodial investigation into allegations of sexual harassment against BJP MP Brij Bhushan Sharan Singh by female wrestlers during his tenure as the President of the Wrestling Federation of India (WFI).
It is therefore presumable that since Bhushan belongs to the Bharatiya Janata Party, of which the Central Government is presently comprised and hence oversees the Delhi Police, the tertiary law enforcement agency in Delhi.
Incidentally, the accusations of inaction by the Delhi Police in refusing to register an FIR represent a fine example of the high-handedness of the Government. Subsequently, the FIRs were registered only after Supreme Court's intervention.
Conversely, the Delhi Police went ahead and detained ace Indian Olympians like Vinesh Phogat, Bajrang Punia, and Sakshi Malik, saying these sportspersons violated law and order and were thus placed under preventive detention leading to an abrupt halt to their protests at Jantar Mantar.
From a staunchly
legal perspective
>> Section 144 of the CrPC empowers the Executive Magistrate of any State or Union Territory in India to pass an order prohibiting the gathering of four or more people in a specified area.
>> It is imposed in urgent cases of nuisance or apprehended danger of some event that has the potential to cause trouble or damage to human life or property.
>> This order can be passed against a particular individual or general public.
Hence, the powers of the Police would be governed by more direct procedural statutes prescribed in the CrPC delineated as under:
>> Section 157 lays down the procedure for an officer in charge of a police station who, upon receiving information or otherwise for the commission of a cognizable offence, shall start investigating himself or through his subordinate and shall forthwith send a report to the respective magistrate.
>> Section 156 gives power to any officer in charge of a police station to investigate a cognizable offence without an order from the magistrate.
>> Section 151 is a safeguard against cognizable offences. As per Section 151(1), if the police come to know that some persons are planning to commit any such offences may arrest them without warrants or orders of the Magistrate. Here, the apprehension or knowledge of such offences is compulsory.
>> Sub-section (c) of section 166A of the Indian Penal Code provides that whoever, being a public servant fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973…shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to fine.
SC ruling on Sec 144
In the Dr Ram Manohar Lohiya (1967) case, the Supreme Court held that “no democracy can exist if ‘public order’ is freely allowed to be disturbed by a section of the citizens”.
The Supreme Court in another recent judgment passed in 2020 observed that the section cannot be used to impose restrictions on citizens' fundamental right to assemble peacefully, cannot be invoked as a 'tool' to 'prevent the legitimate expression of opinion or grievance or exercise of any democratic rights'. The court’s remarks assumed significance in the backdrop of the authorities invoking this provision all too frequently.
Evolving Outlook
Therefore, the Police authorities have been procedurally mandated to register an FIR against the person suspected of having committed a cognizable offence at the instance of information being furnished by the Complainant or Informant.
Instead of sheathing their inaction in failing to register an FIR against influential persons, Police authorities ought to follow the procedural law and not seek refuge in the deluge of preventive action which is an affront to the true duty and obligation upon the Police to register an FIR against the person suspected of any wrongdoing.
