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Report No. 243

2.6 As regards the decisions of Delhi and Madras High Courts referred to above, there are a few comments which we consider appropriate to make. The decisions make the offence practically bailable by reason of various qualifications and restrictions prescribed. The decision of Madras High court goes to the extent of saying that arrest can be made only after filing of the final report before the Magistrate and on the basis of non-bailable warrant issued by the Magistrate.

Whether this judicial law-making based on experience and expediency of restraining the power of arrest in matters arising out of matrimonial problems, is legally sound is one question that arises. Secondly, whether the registration of FIR can be deferred for sometime i.e., till initial investigation and reconciliation process is completed, is another point that arises.

In State of Haryana v. Bhajan Lal, AIR 1992 SC 604, the Supreme Court observed, "It is therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information."

2.7 However, in a recent case of Lalita Kumari v. State of Uttar Pradesh, AIR 2012 SC 1515 the question whether a police officer is bound to register the FIR when a cognizable offence is made out or he has the discretion to conduct some kind of preliminary inquiry before registration of FIR, has been referred to a larger bench of Supreme Court in view of the apparent divergence in views. The law on this point is therefore in an uncertain state.

In this situation, the police in various States have to follow the law laid down or directives issued by the respective High Courts in regard to registration of FIR till the law is settled by the Supreme Court. Shri Amarjit Singh, ld. Member of the Commission has suggested that except in cases of physical violence, the FIR need not be registered instantaneously without any enquiry being made. Whether there should be a legislative provision in this regard specifically with reference to F.I.Rs under Section 498-A is a matter on which a fresh look could be taken after the Supreme Court interprets the relevant Sections in the above case.

Section 498-A of the Indian Penal Code Back

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