It is quite significant to note that the Delhi High Court in a recent, remarkable, refreshing, robust and rational judgment titled Kulvinder Singh Kohli v. State of NCT of Delhi & Ors. in W.P.(CRL) 611/2022 and cited in 2022 LiveLaw (Del) 565 that was pronounced as recently as on June 10, 2022 has observed that summons or notices under Section 160 of the Code of Criminal Procedure can be issued by a Police Officer in order to set investigation into motion and that registration of FIR is must for the same. The Court also observed that without registration of FIR, an investigation cannot be said to have been initiated. Very rightly so.
At the outset, the Single Judge Bench comprising of Hon’ble Mr Chandra Dhari Singh sets the pitch in motion by first and foremost putting forth in para 1 that, “The instant criminal writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, (hereinafter “Cr.P.C.”) has been filed on behalf of the petitioner for issuance of writ, order or direction to quash the summons dated 25th January, 2022, 25th February, 2022 and 9th March, 2022, issued by Deputy Captain Police, Cyber Crime, Phase-8, District Sahibzada Ajit Singh (S.A.S.) Nagar in investigation of Application No./10059/S/SSP dated 21st December, 2021.”
To put things in perspective, the Bench then envisages in para 2 that, “The petitioner is an Advocate, running his law firm, K.S. Kohli & Associates, and is also the Founder and Non-Executive Chairman of Frankfinn Aviation Services Pvt. Ltd. The petitioner received summons from the concerned aforesaid authority, Deputy Captain Police/respondent no. 3, on three occasions, in connection with complaint made by one Rajbikramdeep Singh and his son Munjanpreet Singh. The complaint, as appended with the petition, contains allegations against the petitioner and one Harvansjit Singh, for offences under Section 153A/501/504 /505/295A /506 of the Indian Penal Code, 1860 (hereinafter “IPC”) and Section 67 of the Information Technology Act, 2000 (hereinafter “IT Act”).”
In hindsight, the Bench then recalls in para 3 that, “On 25th January, 2022, the petitioner received summons regarding application dated 21st November, 2021, which read as under:-
“Please note that, you, the below mentioned person/persons are hereby given second opportunity, in connection with the investigation of aforesaid application, to appear personally in the office of Dy. Captain, Police Cyber Crime, Phase-8, District S.A.S. Nagar, along with all your documents and witness(es) on 28-01-2022 at 10.30 AM, to enquire you regarding your involvement in the aforesaid matter, complete the investigation and get resolved the aforesaid application. Treat this as most important.””
While continuing in the same vein, the Bench then enunciates in para 4 that, “The true translated and typed contents of the summons dated 25th February, 2022 are reproduced hereunder:-
“You, the following person/persons are hereby given a second opportunity to note that in connection with the investigation of the aforesaid application you are required to appear in the office of the Deputy Captain of Police (Cyber Crime) Phase 8 at District SAS Nagar along with your witnesses and relevant documents on 7-03- 2022 at around 11:00 AM so that you can be included in the investigation and interrogated so that the investigation of the application can be completed. This should be considered very important.””
Moving on, the Bench then discloses in para 5 that, “On 9th March, 2022, the petitioner received third summons/notice from the concerned authority and the same read as under:-
“You, Kulvinder Singh Kohli s/o Sri Harbans Singh Kohli, House No. 651, Sector 15, Part 01, Pin Code 122001, Gurugram, Haryana, vide Notice bearing no. 31, dated 25-02-2022 of this office, was given the time for 07-03-2022 for participating in the investigation of the aforesaid application but you did not come & appear in the aforesaid application’s investigation, instead you sent a written message via WhatsApp asking a copy of the subject application under investigation. In this regard you are hereby informed that under the law, if you need the application, either you can read the same after participating in the investigation or you can apply for a copy thereof through proper channel permissible under law. Thus you are hereby given the last opportunity to appear in this office on 13-03-2022 and place your submissions. In case of non-appearance, the application will be decided on Ex-Party basis and the proceedings will be initiated as required relating to the application.””
Needless to say, the Bench then states in para 6 that, “The petitioner is before this Court assailing all the three summons/notices issued to him under Section 160 of the Cr.P.C.”
To be sure, the Bench then mentions in para 21 that, “The concerned authority, that is respondent no. 3, issued the impugned summons/notices to the petitioner under Section 160 of the Cr.P.C. A perusal of the said provision is deemed necessary at this stage and hence, the same is reproduced hereunder:-
“160. Police officer’s power to require attendance of witnesses.— (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required: Provided that no male person [under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person] shall be required to attend at any place other than the place in which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.””
Quite ostensibly, the Bench then deems fit to specify in para 22 that, “It is evident from a bare reading of the provision that a police officer may require attendance of a person who is apparently acquainted with the facts and circumstances of a case that such police officer is investigating. A summons/notice to such a person is to be issued following the due process and procedure of law. The extent of this power is, however, limited by the bounds of jurisdiction. The concerned police officer may issue notice requiring attendance of any person who is within the limits of his own Police Station or that of an adjoining Station. The language itself defines the extents of the power of requiring attendance and the same is to be abided by while proceeding under the provision.”
As it turned out, the Bench then observes in para 23 that, “The perusal of the provision, poses two questions before this Court that need to be adjudicated for resolving the issue of legality of the summons/notices issued. The first question is whether the concerned authority/ respondent no. 3 issued the impugned notices at the right stage. Other issue at hand is whether the concerned authority/respondent no. 3 was well within its powers while issuing the summons to a person outside its jurisdiction.”
Be it noted, the Bench then stipulates in para 24 that, “To answer the first question, the consideration before this Court is that at what stage a notice under Section 160 of the Cr.P.C. can be issued. The words used under the provision are ‘police officer making investigation’. The Cr.P.C. itself defines investigation in the following terms:-
“2(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;”
Section 2(h) of the Cr.P.C. includes all proceedings under the Cr.P.C. for collection of evidence under the ambit of investigation. In the present case, the concerned authority received the complaint made by the complainants wherein several allegations were made by them against the petitioner and the other prospective co-accused and upon receiving the complaint, it issued summons under Section 160 of the Cr.P.C. giving opportunity to the petitioner to appear personally for further enquiry into the complaint and the allegations leveled in it. Respondent no. 3 summoned the petitioner at the stage of preliminary inquiry, giving him opportunity to adduce oral as well as documentary evidence in pursuance to the complaint received by it. However, whether the preliminary enquiry amounted to investigation or not, is also a consideration before this Court. The Madras High Court, in this regard has made the following observations in V.N. Pachaimuthu (Supra):-
“9. The Petitioner has placed on record the notice, issued under Section 160 of Cr.P.C., calling Petitioner for enquiry. This notice on the face of it is without jurisdiction and unwarranted in law, as notice under Section 160 Cr.P.C., can be issued to witness in pending FIR, but cannot be issued to a person, who is an accused in a Complaint or before registration of the case.
10. This Writ Petition is, therefore, allowed to a limited extent and the notice issued by second Respondent under Section 160 of Cr.P.C., calling Petitioner for enquiry, is ordered to be quashed.
11. As already observed above, Respondents can only proceed under the provisions of Cr.P.C., in case Complaint discloses any cognizable offences. A citizen cannot be called for enquiry under Section 160 of Cr.P.C., in absence of any FIR. The power under Section 160 of Cr.P.C., can be exercised to call a witness, after FIR is registered.”
The Hon’ble Supreme Court in Samaj Parivartan Samudaya vs. State of Karnataka (2012) 7 SCC 407, expressed its view on the issue and observed as under:-
“25. The machinery of criminal investigation is set into motion by the registration of a first information report (FIR) by the specified police officer of a jurisdictional police station or otherwise. CBI, in terms of its manual has adopted a procedure of conducting limited pre- investigation inquiry as well. In both the cases, the registration of FIR is essential. A police investigation may start with the registration of FIR while in other cases (CBI, etc.), an inquiry may lead to the registration of an FIR and thereafter regular investigation may begin in accordance with the provisions of CrPC.
26. Section 154 CrPC places an obligation upon the authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received orally or in writing by the officer in charge of a police station. A police officer is authorised to investigate such cases without the order of a Magistrate, though, in terms of Section 156(3) CrPC the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of CrPC. Such an order of the Magistrate under Section 156(3) CrPC is in the nature of a preemptory reminder or intimation to the police, to exercise their plenary power of investigation under that section. This would result in a police report under Section 173, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI CrPC. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 CrPC, or to adopt the above procedure. (Ref. Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986 : (1961) 2 Cri LJ 39] ; Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627 : (2006) 1 SCC (Cri) 460 : AIR 2006 SC 705] and Mona Panwar v. High Court of Judicature of Allahabad [(2011) 3 SCC 496 : (2011) 1 SCC (Cri) 1181].
27. Once the investigation is conducted in accordance with the provisions of CrPC, a police officer is bound to file a report before the court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such court or commit the case to the Court of Session. It is significant to note that the provisions of Section 173(8) CrPC open with non obstante language that nothing in the provisions of Sections 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), where charge-sheet has been filed, that court also enjoys the jurisdiction to direct further investigation into the offence. (Ref. Hemant Dhasmana v. CBI [(2001) 7 SCC 536 : 2001 SCC (Cri) 1280] .) This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made.
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50. There is no provision in CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialised agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners.”
Most significantly, the Bench then minces no words to hold in para 26 that, “From the discussion above, it can be deduced that summons/notices under Section 160 of the Cr.P.C. can be issued by a Police Officer who is making investigation under and in accordance with the provisions of the Cr.P.C., and to set into motion such an investigation there is a pre-requisite of registration of FIR. Without registration of FIR, an investigation cannot be said to have been initiated. Further, even for an enquiry to be held legal and valid, the Police Officer has to act in accordance with provisions of the Cr.P.C. and he may not act beyond his powers by conducting a preliminary enquiry without making a report to a Magistrate. Therefore, in the instant case, it cannot be said that either an investigation or an enquiry was validly or legally being carried out by the concerned authority/ respondent no. 3 even for the limited purposes of issuing a notice under Section 160 of the Cr.P.C.”
For sake of clarity, the Bench then states in para 27 that, “The learned counsel for the respondents relied upon the judgment of the Hon’ble Supreme Court in Charan Singh vs. State of Maharashtra, (2021) 5 SCC 469, wherein it was observed that a preliminary inquiry before the registration of FIR is permissible, however, the background of the case is entirely different from the instant matter. In the case before the Hon’ble Supreme Court such observations were made with reference to a public servant for contravention of provisions of the Prevention of Corruption Act, 1988, which poses a graver threat to the society and the general public. The PC Act is a specific legislation which varies from the provisions laid down under General Acts like the IPC and the Cr.P.C. Therefore, an observation in this regard may not be applicable in the peculiar facts and circumstances of the instant case.”
Quite forthrightly, the Bench then expounds in para 30 that, “In the instant matter between the parties before this Court, the impugned summons/notices were issued by the concerned authority/respondent no. 3 from District S.A.S. Nagar, Mohali, Punjab, whereas, the petitioner alleges that he is a resident of J 1/162 E, 2nd Floor, Rajouri Garden, New Delhi – 110027. Even a perusal of the impugned summons/notice reveals that the notice under Section 160 of the Cr.P.C. was issued to the petitioner at his correspondence address at House No. 651, Sector 15, Gurugram, Haryana. Both these addresses are evidently outside and beyond the territorial limits of the concerned Police Station S.A.S. Nagar. The bar of jurisdiction under Section 160 of the Cr.P.C. is indisputably applicable to the instant matter and in such a case, the notice issued can rightly be said to be issued without jurisdiction.”
As a corollary, the Bench then hastens to add in para 31 that, “Keeping in view the above discussion, the provisions under the Cr.P.C. as well as the observations made by Courts of the Country, it is found that firstly, the notice under Section 160 of the Cr.P.C. was not issued at the right stage by the respondent no. 3, since, he could not have been said to be conducting investigation under the Cr.P.C. without the registration of FIR for the purpose of issuance of the notice under Section 160 and secondly, the summons/notices were issued without jurisdiction from the concerned authority in S.A.S. Nagar, Mohali, Punjab to the petitioner residing beyond its own station as well as any adjoining station.”
In addition, the Bench then directs in para 32 that, “In light of the abovementioned observations, this Court is of the view that all the impugned notices issued to the petitioner by the respondent no. 3 are liable to be set aside for the reason of being issued in contravention of the provisions of the Cr.P.C.”
Furthermore, the Bench then holds in para 33 that, “Accordingly, the instant petition is allowed and summons dated 25th January, 2022, 25th February, 2022 and 9th March, 2022, issued by Deputy Captain Police, Cyber Crime, Phase-8, District S.A.S. Nagar in investigation of Application No. /10059/S/SSP dated 21st December, 2021 are hereby quashed, alongwith any other notices issued prior in time with respect to complaint in question, if any.”
What’s more, the Bench then directs in para 34 that, “Pending applications, if any, also stand disposed of.”
Finally, the Bench then concludes by holding in para 35 that, “The judgment be uploaded on the website forthwith.”
In conclusion, the Delhi High Court has made it indubitably clear in this notable judgment that the summons under Section 160 of CrPC cannot be issued by a police officer without registration of FIR. Of course, all the courts must pay definitely heed to what the Delhi High Court has laid down so clearly in this leading case. There can be just no denying it!
Sanjeev Sirohi, Advocate
To put things in perspective, the Bench then envisages in para 2 that, “The petitioner is an Advocate, running his law firm, K.S. Kohli & Associates, and is also the Founder and Non-Executive Chairman of Frankfinn Aviation Services Pvt. Ltd. The petitioner received summons from the aforesaid authority concerned, Deputy Captain Police/respondent no. 3, on three occasions, in connection with complaint made by one Rajbikramdeep Singh and his son Munjanpreet Singh.”
