Quite Debatable questions of law cropped up recently at the Allahabad High Court about the legal boundary up to which a magistrate can really go in exercise of his powers under Section 156(3), Criminal Procedure Code (CrPC).
In case a complainant feels aggrieved when the police turn him away without registering his FIR against those who subjected him to a ‘cognizable offence’, he has the right to approach a magistrate under S 156(3) CrPC to get an order for registration of his FIR and investigation by police.
Now, the legal questions that needed to be resolved at the Allahabad High Court were essentially two: Firstly, when the aggrieved moves an application against the police under S 156(3), can the magistrate, instead of directing the police to register an FIR and investigate the case, register that application as a complaint for investigation by the court itself, rather than by the police?
Secondly, if on an application under S 156(3), the magistrate directs the police to conduct an investigation into the alleged cognizable offence, but eventually the investigating officer (IO) submits a final report (FR) before the magistrate, saying that the investigation has revealed no evidence against the accused, what options are then left before the magistrate?
Both the questions incidentally arose before Justice RK Rastogi, though in different petitions before the High Court under S. 482 CrPC (crl misc applns 11893 of 2004 and no 7259 of 2005).
{{/usCountry}}Both the questions incidentally arose before Justice RK Rastogi, though in different petitions before the High Court under S. 482 CrPC (crl misc applns 11893 of 2004 and no 7259 of 2005).
{{/usCountry}}To begin with, the first question, that is, when the magistrate decides to register an application under S 156(3) in his court as complaint for investigation by the court itself, rather than by police.
To this, Justice Rastogi, after examining the principles laid down by a Full Bench of the Allahabad High Court (2001 (43) ACC 50) and the Supreme Court (JT 2002 (2) SC 81), ruled that on receipt of an application under S 156(3), the magistrate would be “fully competent” to take cognizance of the offence complained about and have it registered as a complaint in his court for investigation.
Now the second question, that is, the options open to a magistrate when in pursuance of an order passed by him under S 156(3), the police investigates the crime but eventually submits a final report, disclosing no evidence against the accused.In such a situation, ruled Justice Rastogi, the magistrate is left with either of the following options:
Option 1: When the police submit a final report clearing the accused of the allegations made against them, but the complainant moves a protest petition against it. If the magistrate, after going through the case diary, concludes that there is ‘sufficient evidence in the case diary’ against the accused, and the IO has ‘erroneously’ submitted a final report, the magistrate can summon the accused on the basis of ‘that evidence’ in the case diary, and the case shall proceed as a State case against the accused.
Option 2: When there is ‘no sufficient evidence’ in the case diary to summon the accused, and the magistrate is of the view that ‘further investigation’ by the police is required, he may direct the police for ‘further investigation’ in the matter.
Option 3: If the magistrate concludes that the evidence in the case diary is ‘not sufficient’ to summon the accused, but the complainant desires to examine some ‘more witnesses’ to substantiate his allegation against the accused, the magistrate can register the complainant’s protest petition as a complaint for investigation by the court itself, and in that case, the magistrate can summon the accused, but only after taking cognizance of the offence under Section 190 CrPC, and after recording the statement of the complainant and witnesses.
In the case before Justice Rastogi, concerning the second question of law, the complainant, aggrieved by this police final report, filed a protest petition, and then the magistrate summoned the accused, without first taking cognizance of the offence under Section 190 CrPC and recording the statement of the complainant and witnesses.
The order of the magistrate, issuing summons to the accused in this case, was thus beyond his jurisdiction under Section 156(3) and was liable to be set aside, ruled the judge.