Tag Archives: FIR

Powers of Magistrate Under – Section 156(3) and Section 202 CRPC

In Devarapali Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488, Madhao v. State of Maharashtra, (2013) 5 SCC 615, Rameshbhai Pandurao Hedau v. State of Gujarat, (2010) 4 SCC 185, the scheme of Sections 156 (3) and 202 has been discussed. It was observed that power under Section 156(3) can be invoked by the Magistrate before taking cognizance and was in the nature of pre-emptory reminder or intimation to the police to exercise its plenary power of investigation beginning with Section 156 and ending with report or charge sheet under Section 173. On the other hand, Section 202 applies at post cognizance stage and the direction for investigation was for the purpose of deciding whether there was sufficient ground to proceed. Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439.

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Applications under Section 156(3) Crpc – To be supported by Affidavit

Section 156(3) applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the Learned Magistrate can verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. Such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. It becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
There has to be prior applications under section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart the veracity of the same can also be verified by the Learned Magistrate, regard being had to the nature of allegations in the case. As a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal cases, as are illustrated in Lalita Kumari v. State of U.P., (2014) 2 SCC 1 are being filed. That apart, the Learned Magistrate would also be aware of the delay in lodging of the FIR. Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287.

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Initial Investigation, Further Investigation and Reinvestigation

The “initial investigation” is one which the empowered police officer shall conduct in furtherance of registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156(3) of the Criminal Procedure Code.
“Further Investigation” is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This is a kind of continuation of the previous investigation. The basis of “further investigation” is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood on complete contradistinction to a “reinvestigation” “fresh” or “denovo” investigation. The scope of further investigation is restricted to the discovery of further oral or documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. The report submitted in pursuance of further investigation is commonly described as “supplementary report” as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. Udai Bhan Karwariya v. State of U.P., 2015 (89) ACC 805.

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FIR vis-à-vis Preliminary Inquiry

In a recent Judgement of the Hon’ble Supreme Court it was held as under:
“(1) The registration of FIR is mandatory under Section 154 of the CrPC, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation.
(2) If the Information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(3) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(4) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(5) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(6) As to what type and in which cases preliminary inquiry is to be conducted will depend upon the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial Offences
(c) Medical Negligence cases
(d) Corruption cases
(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 delay.
(7) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(8) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, it was held that all information relating to cognizable offences, whether resulting in registering of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected. Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1.

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“Informant” and “Complainant” – Distinction Between

In many judgments, the person giving the report under Section 154 of CRPC is described as the “complainant” or the “de facto complainant” instead of “informant”, assuming that the State is the complainant. These are not words of literature. In a case registered under Section 154 of the Code, the State is the prosecutor and the person whose information is the cause for lodging the report is the informant. This is obvious from sub-section (2) of Section 154 of the Code which, inter alia, provides for giving a copy of the information to the “informant” and not to the “complainant”. However the complainant is the person who lodges the complaint. The word “complaint” is defined under Section 2(d) of the Code to mean any allegation made orally or in writing to a Magistrate and the person who makes the allegation is the complainant, which would be evident from Section 200 of the Code, which provides for examination of the complainant in a complaint case. Therefore, these words carry different meanings and are not interchangeable. In short, the person giving information, which leads to lodging of the report under Section 154 of the Code is the informant and the person who files the complaint is the complainant. Ganesha v. Sharanappa and another, (2014) 1 SCC 87.

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Two FIR’s – Not permissible in respect of one and the same incident

The lodgment of two FIR’s is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh v. Ved Prakash, (2004) 13 SCC 292, the prohibition does not cover the allegations made by the accused in the First FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIR’s is permissible. Surender Kaushik v. State of U.P., (2013) 5 SCC 148.

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Quashing of Criminal Proceedings/F.I.R.

Section 482 of CRPC:

The Section 482 of Criminal Procedure Code, 1973 reads as below:

“482. Saving of inherent powers of High Court.— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

Basic Guidelines

In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604,  the Apex Court after reviewing large number of cases on the question of quashing the FIR, laid down the following guidelines:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The abovementioned principle was reiterated in Union of India v. Ramesh Gandhi, (2012) 1 SCC 476.

 

 

Fresh Investigation – Order for

 

State of Punjab v. CBI, (2011) 9 SCC 182

Section 482 CrPC, however, states that nothing in CrPC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under CrPC or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Thus, the provisions of CrPC do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order of the court or to prevent the abuse of any process of the court or otherwise to secure the ends of justice. The language of sub-section (8) of Section 173 CrPC, therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 CrPC for fresh investigation or reinvestigation if the High Court is satisfied that such fresh investigation or reinvestigation is necessary to secure the ends of justice.

 

Limitations Under

 

TGN Kumar v. State of Kerala, (2011) 2 SCC 772

It is equally trite that the inherent powers of the High Court under Section 482 of the Code have to be exercised sparingly with circumspection, and in rare cases to correct patent illegalities or to prevent miscarriage of justice. In Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551, a Bench of three learned Judges of the Apex Court had observed that:

“the following principles may be noticed in relation to the exercise of the inherent power of the High Court …:

(1) that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice;

(3) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.”

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