The legislative intent and legal mandate enshrined in Section 154(1) Cr. P.C is that every information relating to the commission of a "cognizable offence" (as defined Under Section 2(c) of the Cr. P.C) if given orally or in writing to "an officer in-charge of a police station" ( as defined under Section 2(o) of the Cr. P.C) and should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Information Report" . The plain words of Section 154(1) of Cr.P.C have to be given their literal meaning. The use of the word "shall" in Section 154(1) of the Cr.P.C clearly shows the legislative intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence. In the case of Lalita Kumari Vs. State of U.P reported as (2014) 2 SCC 1 the Hon’ble Supreme observed that the obligation to register FIR has following inherent advantages:

It is the first step to 'access to justice' for a victim.
It upholds the 'Rule of Law' inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.
It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.
It leads to less manipulation in criminal cases and lessens incidents of 'ante-dates' FIR or deliberately delayed FIR.

If a person is aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Section 154 (1) Cr.P.C , in such circumstances the aggrieved person may send such information, in writing and by post, to the concerned Superintendent of Police who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided under Cr.P.C and such officer shall have all the powers of an officer in charge of the police station in relation to that offence . However, if the Superintendent of Police takes no action, then the aggrieved party can file an application to the Magistrate having jurisdiction under Section 156(3) of the Cr.P.C. Under Section 156(3) of Cr.P.C, the Magistrate has the power to direct the registration of FIR and also order an investigation by the officer in charge of the police station. The Magistrate has also power to monitor the investigation.

In the case of Sakiri Vasu v. State of U.P, (2008) 2 SCC 409 the Hon’ble Supreme Court held as under: -

“11….. that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.”

In the case of Priyanka Srivastava v. State of U.P., reported as (2015) 6 SCC 287 the Hon’ble Supreme Court held that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Recently, the Hon’ble Supreme Court in the case of C. Kumaravel Vs. The Director of Police reiterated the aforesaid position of law.

In the case of Ramdev Food Products (P) Ltd. v. State of Gujarat reported as (2015) 6 SCC 439, the Hon’ble Supreme Court observed that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision can be issued.

In the case of Mohd. Yousuf v. Afaq Jahan reported as (2006) 1 SCC 627, the Hon’ble Supreme Court held that a Magistrate can order investigation under Section 156(3) Cr.P.C before taking cognizance of offence. The relevant potion the said judgment reads as under:

“11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”

In the case of Lalita Kumari the constitute breach of the Hon’ble Supreme Court laid down the following principle of law: -

120.1 Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2 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.

120.3 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.

120.4 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.

120.5 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.

120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: -

Matrimonial disputes/family disputes
Commercial offences
Medical negligence cases
Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

Though, the provision of Section 156(3) Cr.P.C provides valuable right to a person but some time some perverted litigant uses the aforesaid provision to harass other person. In the case of Priyanka Srivastava, the Hon’ble Supreme Court directed that the application under Section 156(3) Cr.P.C required to be supported by an affidavit so that after investigation, if the information given by the informant is found to be false, there is always an option to prosecute him for providing false information on oath. The relevant portion of the aforesaid judgment reads as under:

“29……… that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power.

It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.

30………in our considered opinion a stage has come in this country where Section 156(3) CrPC 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 would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, 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.

31……..…we have already indicated that there has to be prior applications under Sections 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, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so 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 prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

The law is thus very clear, that if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex-facie discloses the commission of a cognizable offence or not. If the concern police officer(s) fails to discharge their duties then the aggrieved party can approach the concern Magistrate having jurisdiction by way of application under Section 156(3) Cr.P.C.

Exercise of Power by The Magistrate Under Section 156(3) CrPC for Directing Police to Investigate A Case or Register an FIR

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NIRAJ SINGH