In a recent Judgment the Allahabad High Court has explained circumstances when a magistrate can treat an application under section 156(3) CrPC as complaint case
The dispute pertains to fight between two parties relating to a path in front of house.The person who was beaten (Revisionist) and whose purse was snatched approached the Police for lodging the FIR but the Police did not lodged the FIR.
Thereafter the revisionist moved an application under section 156(3) CrPC alongwith injury report and other documents seeking a direction to register the FIR. But the Magistrate vide order dated 26.03.2020 treated the same as a complaint case.
The Counsel for the revisionist pleaded that the Magistrate must have directed the police to register the FIR and make an investigation and submit a report under Section 173(2) Cr.P.C., as the averments in the complaint/application under Section 156(3) Cr.P.C. disclosed commission of a cognizable offence, and if the application disclosed commission of a cognizable offence, the Magistrate must have directed for investigation by police before taking cognizance as in the course of inquiry by the Magistrate in a complaint case he has the power to call for the police report of the investigation under Section 202(1) Cr.P.C., but that investigation by the police would be different and distinct than the investigation directed under Section 156(3) Cr.P.C.
Opposing the revision petition AGA submitted that the Magistrate has the jurisdiction to direct the police to register the F.I.R. and make investigation without taking cognizance. But, he has also the jurisdiction to take cognizance and proceed to inquire the matter by himself, registering the application as a complaint case.
Issues before the Court
i) Whether in each and every case, where an application under Section 156(3) Cr.P.C. is made to the Magistrate disclosing commission of a cognizable offence, the Magistrate is legally bound to direct registration of the FIR and investigation by police or the Magistrate has also the power and jurisdiction to pass order for registration of the application as a complaint case.?
ii) On what considerations the Magistrate should take the decision for investigation by police or to proceed with as a complaint case?
iii) What is the nature of an investigation by the police in pursuance of the direction of the Magistrate issued under Section 156(3) Cr.P.C. and the investigation by the police in pursuance of the direction of the Magistrate issued under Section 202(1) Cr.P.C. ?
iv) Whether the order passed by the Magistrate in the present case deserves to be maintained or not?
Observation and Decision of Court:
Hon’ble Justice Ravi Nath Tilhari of Allahabad High Court observed that
Crime detection and the adjudication are two inseparable wings of justice delivery system. While crime detection is the exclusive function of the police, judiciary is the final arbiter of the guilt or otherwise of the persons charged with the offence. To sustain the faith of the people in the efficacy of the whole system investigative agency should work efficiently, impartially and uninfluenced by any outside agency, however, powerful it may be. For an orderly society, importance of the police cannot be denied.
After referring to various Judgments on the issue specially Lalita Kumari versus Govt. of U.P., (2014) 2 SCC 1, the Court summarized the law on the issue and held that in following cases the application under Section 156(3) cannot be treated as a complaint case:
- Where complete details of the accused are not known and the same requires Investigation.
- Recovery of stolen property or abducted person is required.
- sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or
- Recovery under S. 27 of Evidence Act
- Preparation of inquest report
- Witnesses have to be found and not known.
As such where none of the above conditions is there then the procedure of complaint case may be adopted by the Magistrate. Also in following cases the Magistrate can try a case as complaint case:
- Matrimonial disputes/family disputes
- Commercial offences
- Medical negligence cases,
- Corruption cases
- Cases where there is abnormal delay in filling criminal complaint etc. may fall under Section 202 Cr.P.C.
These conditions are illustrative and not exhaustive.
The Court also held that in case Magistrate refuses to direct police investigation under 156 (3) CrPC, it will not bar the Magistrate from directing a police investigation under Section 202 (1) CrPC.