Throughout the past times, the powers of a Magistrate specifically an Executive Magistrate included the power to direct the police to file a FIR on grounds of a private complaint which is lodged with him. But recently the Supreme Court has held that an Executive Magistrate is not vested with the power to direct the police to file a FIR on the basis of a private complaint lodged with him. In the case Naman Prasad Singh vs State of Uttar Pradesh, a bench of Justice Rohintan Fali Nariman and Justice Navin Sinha were faced with the question whether the Sub-Divisional Magistrate was competent to direct the police to lodge an FIR in such a case and whether the FIR so lodged can be said to have been registered in accordance with the Code of Criminal Procedure, 1973.
In the instant case, a student had lodged a complaint with the Sub-Divisional Magistrate, Unnao that she had been duped into taking admission in an unrecognized institute. The Magistrate had directed the police on the same day to register a first information report and thus a FIR was registered. The bench ruled that an Executive Magistrate had no role in directing the police to register a FIR on the basis of a private complaint lodged before him.
It has been observed by the court that the FIR once read highlighted the fact that it had been registered on the directions of the Sub-Divisional Magistrate. That aspect is impermissible in the law. The Sub-Divisional Magistrate does not exercise powers under Section 156(3) of the Code of Criminal Procedure, 1973 The very institution of the FIR in the manner done is contrary to the law and without jurisdiction. Sec 156(3) of the Code of Criminal Procedure, 1973 states that any Magistrate empowered under Section 190 of the Code of Criminal Procedure, 1973; has the power and that power provides him the authority of directing the filing of a FIR and order an investigation by the police. But the Section 190 of the Code of Criminal Procedure, 1973 empowers only Magistrates of the first class or of the second class and the Chief Judicial Magistrate to order the investigation under Section 156(3) of the Code of Criminal Procedure, 1973. Hence, Executive Magistrates or Sub-Divisional Magistrates are not empowered to do so.
Further, the court stated that the powers of the Executive Magistrate are defined clearly under several laws. In cases of a complaint being lodged before the Executive Magistrate over an issue which he has administrative jurisdiction, and the Magistrate holds an administrative inquiry. After which it may be possible to lodge a FIR himself in the matter. In such a scenario, entirely unique conclusions could be arrived at. The apex court said that instead of complaining to the Executive Magistrate, the complainant could have: –
- Lodged the FIR herself with the police under Section 154 of the Code of Criminal Procedure, 1973.
- Could have proceeded under Section 154(3) of the Code of Criminal Procedure, 1973, by writing to the Superintendent of Police if the police station did not lodge her FIR.
- If both the above had failed and she could not get the police to lodge the FIR, she could have moved the magistrate concerned under Section 156(3) of the Code of Criminal Procedure, 1973.
- She could have filed the complaint under Section 200 of the Code of Criminal Procedure, 1973; before the jurisdictional Magistrate.
This is in consonance with what the apex court held in the case of Sakiri Vasu vs State of UP and others. The apex court quashed the illegal FIR but observed that if the complainant chose to proceed as per the options available to her for the redressal of her grievance, the same would have to be considered by the appropriate authority or forum in accordance with law.
The power to order police investigation under S. 156(3) is one aspect while the power to direct investigation conferred by Section 202(1). Both are distinct and unique providing the magistrate with a completely different authority. Section 153(6) is engaged at the precognizance stage. While Section 202(1) at the post-cognizance stage when the Magistrate is in seisin of the case. In cases regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under S. 190(1)(a).
An order under Section 156(3), is a peremptory reminder or intimation to the police for exercising their plenary powers of investigation under Section 156(1). The following investigation takes up the entire continuous process which begins from collecting evidence under Section 156, ending with a report or charge sheet under section 173. Section 202 is deemed insufficient to take a decision as to the next step in the prescribed procedure. In these circumstances, the Magistrate under section 202 has authority to direct, within certain limits, an investigation ‘for the purpose of deciding whether or not there is sufficient ground for proceeding.’ Thus, the object of an investigation under section 202 is not to initiate a fresh case on police report. But is of assisting the Magistrate in completing proceedings already instituted upon a complaint before him.”
This article is authored by Kosha Doshai, student of BALLB (Hons) at Symbiosis Law School, Pune.
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