JUDGMENT 1. This Writ Petition is filed challenging notice dated 17.01.2012 issued to the petitioner by the second respondent whereunder and whereby the petitioner was directed to appear before the second respondent with all relevant documents and connected papers in person on 20.01.2012. 2. The petitioner is the Managing Director of M/s. Visweshwara Infrastructure Private Limited. By virtue of the directions of the first respondent vide C.No.9468/C34/CID/2011, dated 30.12.2011, the second respondent was nominated as enquiry officer to conduct inquiry on the complaint lodged by respondents 3 to 6 against one M/s. Bhavana Co-operative Housing Society Private Limited, the petitioner and others. The second respondent has taken up the inquiry into the matter and proposed to examine the petitioner as a witness to ascertain the facts of the complaint within the knowledge of the petitioner. It is the case of the petitioner that except the impugned notice, he was not furnished either with a copy of the directions alleged to have been issued by the first respondent to the second respondent or with copies of the alleged complaint. 3. The averments in the affidavit filed in support of the Writ Petition and contents in the counter affidavit contain factual aspects of the case, which are not at all relevant for the purpose of deciding the point in this Writ Petition. 4. In the counter affidavit filed by the respondents 1 and 2, it is stated that basing on the complaint submitted by the third respondent, the first respondent directed the second respondent to conduct detailed enquiry and that the petitioner was sought to be examined as a witness to get certain information with reference to the above act of forgery. 5. The point that falls for consideration in this Writ Petition is whether the first respondent has power to investigate into a cognizable offence without registering the case as required under Section 154 of the Code of Criminal Procedure, 1973. In other words, whether the first respondent or police can conduct inquiry before investigation to ascertain truth or otherwise of the allegations made in the complaint ? 6. In other words, whether the first respondent or police can conduct inquiry before investigation to ascertain truth or otherwise of the allegations made in the complaint ? 6. Learned senior counsel Sri E.Manohar appearing for the petitioner contended that without registering a case, police have no power to conduct an inquiry before investigation; that, admittedly, no case is registered against any person so as to summon any person for examination including the accused, and hence, he prays to quash the impugned notice. 7. On the other hand, the learned Additional Advocate General appearing for the respondents 1 and 2 contended that the petitioner was called as a witness to speak about the allegations in the complaint and that the first respondent has got power under Section 41A of the Code of Criminal Procedure, 1973 to do so, and therefore, the impugned order needs no interference by this Court. 8. Sri C.V.Mohan Reddy, learned senior counsel appearing for the respondents 3 to 6 contended that the Code of Criminal Procedure, 1973 does not expressly bar a police officer, much less the first respondent, from making a preliminary inquiry so as to ascertain truth or otherwise of the allegations in the complaint and that as police got power to investigate into the matter, there are no grounds to interfere with the impugned order. 9. In a decision in Lalitha Kumari v. Government of U.P. & others (2012 (3) SCALE 152), an important issue viz. whether under Section 154 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.), a police officer is bound to register a First Information Report when a cognizable offence is made out or he has some latitude of conducting some kind of preliminary enquiry before registering the case, arose for consideration. On this aspect, learned counsel appearing therein brought to the notice of the Apex Court about two sets of cases decided by the Apex Court expressing totally divergent judicial opinions. They are referred as follows: (paras 96 to 107) “(96.) This Court in the case of Bhajan Lal and Others (supra), Ramesh Kumari (supra), Parkash Singh Badal and Another v. State of Punjab and Others (2007) 1 SCC 1 and Aleque Padamsee and Others (supra) held that if a complaint alleging commission of cognizable offence is received in the Police Station, then the S.H.O. has no option but to register an F.I.R. under Section 154 Cr.P.C.. (97.) On the other hand, this Court in following cases, namely, Rajinder Singh Katoch (supra), P. Sirajuddin etc. v. State of Madras etc. 1970 (1) SCC 595 , Bhagwant Kishore Joshi (supra), Sevi and Another etc. v. State of Tamil Nadu and Another 1981 (Suppl.) SCC 43 have taken contrary view and held that before registering the FIR under Section 154 of Cr.P.C., it is open to the SHO to hold a preliminary enquiry to ascertain whether there is a prima facie case of commission of cognizable offence or not. (98.) We deem it appropriate to give a brief ratio of these cases. (99.) In Bhajan Lal (supra), this Court observed as under:- "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." (100.) In Ramesh Kumari (supra), this Court observed that the provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of such an information disclosing cognizable offence. (101.) In Parkash Singh Badal (supra), this Court observed as under:- "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." (102.) In Aleque Padamsee (supra), this Court observed as under:- "The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to their notice show that cognizable offence has been made out." (103.) There is another set of cases where this Court has taken contrary view. (104.) In Rajinder Singh Katoch (supra), this Court observed as under:- "We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi) wherein such a statutory duty has been found in the police officer. (104.) In Rajinder Singh Katoch (supra), this Court observed as under:- "We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi) wherein such a statutory duty has been found in the police officer. But, as indicated hereinbefore, in an appropriate case, the police officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not." (105.) In Bhagwant Kishore Joshi (supra), Mudholkar, J. in his concurring judgment has observed as under:- "I am of opinion that it is open to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it." (106.) In P. Sirajuddin etc. (supra), this Court quoted the observations of the High Court as under:- "(a)"substantial information and evidence had been gathered before the so-called first information report was registered"." (107.) In Sevi and Another (supra), this Court observed as under:- "If he was not satisfied with the information given by PW 10 that any cognizable offence had been committed he was quite right in making an entry in the general diary and proceeding to the village to verify the information without registering any FIR." ” Because of the divergent opinions expressed by the Apex Court in the aforementioned cases, it was held, ‘it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench of this Court for the benefit of all concerned – the courts, the investigating agencies and the citizens, and consequently we request Hon’ble the Chief Justice to refer these matters to a Constitution Bench of at least five Judges of this Court for an authoritative judgment’. From the above decision, it is clear that the matter is pending before the Apex Court to be adjudicated by a Constitution Bench of at least five Judges of the Apex Court. It is not desirable to keep the Writ Petition pending till an authoritative pronouncement comes from the Apex Court, and it has to be decided basing on the material available on record. 10. It is not desirable to keep the Writ Petition pending till an authoritative pronouncement comes from the Apex Court, and it has to be decided basing on the material available on record. 10. Conditions relating to recording a First Information Report (FIR) are– (i) It must be an information relating to commission of cognizable offence; (ii) It must be given to an officer in-charge of a police station; (iii) It must (if oral), in the first stage, be reduced to writing by the officer in-charge and be read over to the informant or the informant may himself give a written information or bring such a written information. This is the complaint or accusation to the police and technically called the FIR. (iv) The oral information when reduced to writing must be signed by the informant and if a written information is given it must also be similarly signed by the informant. (v) In the final stage, the substance of the information must be entered in a prescribed book. First information of commission of a cognizable offence is enough to constitute FIR. The object of FIR from the point of view of the informant is to set the criminal law into motion, and from the point of view of investigating authorities, is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The offence may transpire to be a cognizable or non-cognizable offence, if found cognizable, police can investigate upon the information without order of the Magistrate. Therefore, the condition which is sine qua non for recording a first information is that there must be an information and that information must disclose a cognizable offence before an officer in-charge of a police station satisfying the requirements of Section 154 (1) Cr.P.C. 11. Investigation, by virtue of definition in Section 2 (h) Cr.P.C. includes all proceedings taken under this Code for 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. Normally, investigation commences after the information relating to a cognizable offence is entered into a book maintained by police as prescribed by the State Government, which is generally called as First Information Report. Normally, investigation commences after the information relating to a cognizable offence is entered into a book maintained by police as prescribed by the State Government, which is generally called as First Information Report. Ordinarily, investigation starts with entering of the information relating to a cognizable offence in the aforesaid book and includes examination of witnesses, arrest of accused, in case of necessity, going to the scene of occurrence, recovery, examination of accused, in view of the decision reported in H.N. Rishbud and another v. State of Delhi AIR (1955 SC 196) wherein it is held thus: “Thus, under the Code investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure, of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under S. 173.” 12. For commencement of investigation in a cognizable offence by a police officer, two conditions are to be satisfied viz. firstly the police office should have reason to suspect the commission of a cognizable offence as required under Section 157 (1) Cr.P.C. and secondly, the police officer should satisfy himself as to whether there is a sufficient ground for entering on an investigation even before he starts investigation into the facts and circumstances of the case as contemplated under Section 157 (1) (b) Cr.P.C. Neither Section 154 Cr.P.C. nor 157 Cr.P.C. provides for conducting an enquiry before starting investigation. 13. The word ‘inquiry’ has been defined for the first time in Section 2 (g) the Code of Criminal Procedure, 1973, which reads as follows: “Every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.” The term ‘inquiry’ has a very wider connotation under the Code. It includes every inquiry other than a trial. 13. The word ‘inquiry’ has been defined for the first time in Section 2 (g) the Code of Criminal Procedure, 1973, which reads as follows: “Every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.” The term ‘inquiry’ has a very wider connotation under the Code. It includes every inquiry other than a trial. It refers to a judicial inquiry into a matter by a Magistrate or Court. Inquiry relates to proceedings before a Magistrate prior to trial while investigation is confined to proceedings taken by police or by any person other than a Magistrate, who is authorised in this behalf. The object of an investigation is collection of evidence, and of an enquiry is taking of evidence for further action. Investigation by police should be in a procedure contemplated under Cr.P.C. Inquiry may be in respect of an offence or all matters which are not offences. For a cognizable offence, investigation properly commences when a police officer has sent his report to Magistrate under Section 157 Cr.P.C. or received an order from him to investigate. Police have statutory power to investigate a cognizable offence without a Magistrate’s order. So, from the definition of ‘inquiry’ it is clear that police have no power to conduct inquiry because it has to be conducted under the Code by a Magistrate of Court. 14. The learned Additional Advocate General contended that under Section 41A Cr.P.C., police officer may issue a notice directing a person against whom reasonable complaint has been made or credible information has been received or reasonable suspicion exists, and that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. Chapter V Cr.P.C., containing Sections 41 to 60 Cr.P.C., deals with general provisions relating to arrest of persons. Section 41 Cr.P.C. enunciates 9 categories of cases in which a police officer may arrest a person without order from the Magistrate and when warranted. Sections 41 and 41A Cr.P.C. will have to be read with in conjunction with the provisions contained in Sections 154, 155, 156 and 157 Cr.P.C. ‘Credible information’ or ‘reasonable suspicion’ upon which an arrest can be made by a police officer must be based upon definite acts and material placed before him which the officer must consider himself before he can take any action. Section 41A Cr.P.C. provides that where a case does not fall under subsection (1) of Section 41 Cr.P.C., a police officer may in stead of arresting the person concerned, issue to him a notice of appearance requiring him to appear before a police officer. Section 41B Cr.P.C. lays down procedure of arrest and duties of the officer making arrest. Therefore, this provision does not empower a police officer to direct a witness to appear before him. It is only applicable to a person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence. 15. As seen from the impugned notice, it is clear that the second respondent proposed to examine the petitioner as a witness. Therefore, the contention of the learned Additional Advocate General that the source of power of the second respondent is from Section 41A Cr.P.C. cannot be accepted and it is wholly devoid of merit and untenable. That power is available under Section 160 contained in Chapter XII Cr.P.C. which authorises a police officer making investigation to require attendance before him of any person appears to be acquainted with the facts and circumstances of the case. The power under Section 160 Cr.P.C. can be exercised by a police officer after commencement of investigation. Further more, under Section 161 (1) Cr.P.C., a police officer making investigation can examine a person acquainted with the facts of the case and reduce the statement made by such person into writing. Under sub-section(3) of Section 161 Cr.P.C., a police officer may reduce to writing any statement made to him in the course of examination under this Section and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. The stage of Section 160 or 161 Cr.P.C. has come in this case. Therefore, the second respondent has no authority to summon the petitioner either under Section 41A or 160 or 161 Cr.P.C. for examination. Hence, the impugned notice is liable to be set aside. 16. The Writ Petition is, accordingly, allowed setting aside the impugned notice. No costs. Miscellaneous petitions, if any, pending in this writ petition shall stand closed. However, this order does not preclude the respondents 1 and 2 to proceed in accordance with law.