Brief Facts
- The accused persons have been accused by the prosecutrix for calling her to his flat after which the accused persons allegedly committed rape on her, one after another. She further alleged that the accused persons had also threatened to kill her and her son. Following which, two complaints were lodged. Despite the lodging of the complaints, no FIR was registered.
- An application under Section 156(3) of the Code of Criminal Procedure was filed which was dismissed by the Chief Judicial Magistrate on the ground that there was a delay of 2 years in lodging the complaint, inter alia. The said order was assailed before the High Court by filing a criminal revision application, which was allowed by the court. Thereafter, pursuant to the impugned judgment and order passed by the High Court and on remand, the Ld. CJM has straightway directed to register the application/complaint as an FIR.
- Aggrieved by the same the Petitioner-Accused has filed the petition before the Apex Court.
Issues
- Whether at the stage of deciding the Application under Section 156(3), the magistrate can enter into the merits of the allegations made in the complaint in order to verify the truth and veracity of the allegations?
- Whether the Magistrate is required to examine, apply his judicious mind and then exercise discretion whether or not to issue directions under Section 156(3) of Cr.P,C or whether he should take cognizance and follow the procedure under Section 202?
Held
- While affirming High Court’s order to remand the matter to the magistrate, the Apex Court set aside the subsequent order passed by the magistrate in remand.
- The Court set aside the Magistrate’s order which directed the registration of FIR by holding that the said order was passed by the Magistrate merely on the remand made by the High Court, without any independent application of mind.
Steps of Investigation - The power under the Code to investigate generally consists of following steps: (a) proceeding to the spot; (b) ascertainment of facts and circumstances of the case; (c) discovery and arrest of the suspected offender; (d) collection of evidence relating to commission of offence, which may consist of examination of various persons, including the person accused, and reduction of the statement into writing if the officer thinks fit; (e) the search of places of seizure of things considered necessary for investigation and to be produced for trial; and (f) formation of opinion as to whether on the material collected there is a case to place the accused before the Magistrate for trial and if so, taking the necessary steps by filing a chargesheet under Section 173.
Mandatory nature of Section 154(1) of Cr.P.C - Section 154 of the Code should be read and interpreted in conformity with the mandate of Article 21 of the Constitution. However, as Section 154 has been drafted keeping in mind the interest of the victim, and their right to have access to fair and independent investigation, the mandatory registration of FIRs under Section 154 will not contravene Article 21 of the Constitution. Drawing on several earlier judgments and the language of Section 154 of the Code, it was held that the Police is bound to proceed to conduct investigation, even without receiving information about commission of a cognizable offence if the officer in-charge otherwise suspects the commission of such an offence. This interpretation in a way keeps a check on the power of the Police, which is required to protect the liberty of individuals and society rights inherent in a democracy.
- To strike a balance, distinction is drawn between power of arrest of an accused person under Section 41 and registration of an FIR under Section 154 of the Code. While registration of an FIR is mandatory, the arrest of the accused on registration of the FIR is not. FIR is registered on the basis of information without any qualification like credible, reasonable or true information. Reasonableness or credibility of information is not a condition precedent for registration of the FIR. However, for making arrest in terms of Section 41(1)(b) or (g), the legal requirements and mandate is reflected in the expression ‘reasonable complaint’ or ‘credible information’.
- Further there is a distinction between Section 154 and 157 as the latter provision postulates a higher requirement than under Section 154 of the Code. Under Section 157(1) of the Code, a Police officer can foreclose the investigation if it appears to him that there is no sufficient ground to investigate. The requirement of Section 157(1) for the Police officer to start investigation is that he has “reason to suspect the commission of an offence”. Therefore, the Police officer is not liable to launch investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence. When the Police officer forecloses investigation in terms of clauses (a) and (b) of the proviso to Section 157(1), he must submit a report to the Magistrate. Here, the Magistrate can direct the Police to investigate, or if he thinks fit, hold an inquiry. Where a Police officer, in a given case, proceeds to investigate the matter, then he files the final report under Section 173 of the Code. The noticeable feature of the scheme is that the Magistrate is kept in the picture at all stages of investigation, but he is not authorised to interfere with the actual investigation or to direct the Police how the investigation should be conducted.
- The category of cases in which preliminary inquiry may be made, purely as illustration were indicated as matters relating to: (a) matrimonial/family disputes; (b) commercial offences; (c) medical negligence cases; (d) corruption cases; or (e) cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over three months delay in reporting the matter without satisfactorily explaining the reasons for the delay. The categorisation indicated being illustrative is not exhaustive of the cases that may warrant preliminary inquiry. Preliminary inquiry, when held, should be conducted without causing delay and in a time bound manner.
- The power of the Magistrate is conferred once a report in terms of Section 157 or a report under Section 173(3) is submitted by the Police before the Magistrate. Thus, the Magistrate, who has little or no scope to interfere with the investigation, is not absolutely powerless in view of the powers conferred in terms of Sections 159 and 173, and infra, Section 202 of the Code.
- When an offence is disclosed, the court will not normally interfere into an investigation, however, if the materials do not disclose an offence, no investigation can be permitted.
- When the Magistrate is satisfied that the allegations made disclose commission of a cognizable offence, he must stay his hands, direct registration of an FIR and leave it to the investigative agency to unearth the facts and ascertain the truth of the allegations.
Difference in the power of Police to register and investigate an FIR under Section 154(1) read with 157 of the Code, and the Magistrate’s direction to register an FIR under Section 156(3) of the Code. Power of the Magistrate to direct registration of an FIR under Section 156(3) in contrast with post-cognizance stage power under Section 202 of the Code. - The power of Magistrate to direct investigation falls under two limbs of the Code: one is pre-cognizance stage under Section 156(3), and another on cognizance under Chapter XIV (‘Conditions Requisite for Initiation of Proceedings’; Sections 190-199) read with Chapter XV (‘Complaints to Magistrates’; Sections 200-210). These two powers are different and there also lies a procedural distinction between the two.
- The Magistrate has the power, when a written complaint is made, to issue direction under Section 156(3), but this power is to be exercised before the Magistrate takes cognizance of the offence under Section 190. However, in both cases, whether under Section 156(3) or under Section 202 of the Code, the person accused as the perpetrator, when the proceedings are pending before the Magistrate, remains unrepresented. Under Section 203, the Magistrate, after considering the statement of the complainant and witnesses (if any) on oath and the result of an inquiry (if any) under Section 202, can dismiss the complaint if he is of the opinion that there is no sufficient ground for proceeding and in every such case briefly record his reasons.
- If the Magistrate after taking cognizance of the offence, is of the opinion that there are sufficient grounds for proceeding he will issue the process to the accused for appearance as per the procedure and mode specified under Section 204 of the Code. Process to the accused under Section 204 falls under Chapter XVI of the Code and is issued post the cognizance and inquiry/investigation/evidence recorded in a private complaint in terms of Section 202 of the Code.
- The Magistrate may well exercise discretion in sending such complaint under Section 156(3) to the police for investigation. However, when a Magistrate chooses not to proceed under Section 156(3), he cannot simply dismiss the complaint if he finds that resorting to Section 156(3) is not advisable.
- When a complaint is presented before a Magistrate, he has two options. One is to pass an order contemplated by Section 156(3). The second one is to direct examination of the complainant on oath and the witness present, and proceed further in the manner provided by Section 202. An order under Section 156(3) is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power of investigation under Section 156(1). However, once the Magistrate has taken cognizance under Section 190 of the Code, he cannot ask for an investigation by the Police. After cognizance has been taken, if the Magistrate wants any investigation, it will be under Section 202, whose purpose is to ascertain whether there is prima facie case against the person accused of the offence and to prevent issue of process in a false or vexatious complaint intended to harass the person named. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further.
Relevant Page No.
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