Jammu and Kashmir High Court: Sanjay Dhar J., while dismissing the present petition challenging the delegation of power by the Magistrate to the officer in charge of the concerned police station, reiterated that there are cases wherein a preliminary investigation is necessary before registration of FIR and there is no infirmity in delegating the same.
The facts of the case are enlisted herewith;
- That the petitioner had filed an application under Section 156(3) of CrPC before the Magistrate seeking a direction for registration of FIR.
- That in the application it was alleged that at about 9.30 am on 29-08-2020, when the petitioner was working in her land, the accused persons, armed with Dharatis and clubs, trespassed into the said land and hurled abuses upon the petitioner.
- That it is also alleged that the petitioner somehow managed to escape from the spot otherwise she would have been physically harmed by the accused persons.
- That it was further alleged that the petitioner had approached the concerned SHO and the SSP, but her efforts to get the case registered against the accused persons did not bear any fruits.
- That, subsequently she approached the Magistrate with a request to issue a direction for registration of a case against the accused persons in terms of Section 156(3) of CrPC.
- That the Magistrate vide a detailed order dated 09-09-2020, after noting the contents of the complaint and the submissions of the counsel for the petitioner, directed SHO to verify the matter and if cognizable offences are made out, to proceed in terms of Section 156(3), CrPC.
- That it is this order which is under challenge before this Court by way of the instant petition.
Counsel for the petitioner, Deepak Mahajan, contended that, there was no occasion for the Magistrate to get the matter verified when the application of the petitioner on the face of it disclosed commission of cognizable offences against the accused.
Reflecting upon the scope of power of the Magistrate under the provisions contained in Section 156(3) of CrPC, the Court said, “Magistrate who has jurisdiction to entertain a complaint under Section 190 of CrPC for taking cognizance of an offence, is empowered to issue direction to the officer-in-charge of a Police Station to register and investigate a case if the information laid before him discloses commission of cognizable offences. The discretion lies with the Magistrate whether to proceed under Section 156(3) of CrPC or to adopt a course in terms of Chapter XIV of the Code of Criminal Procedure by taking cognizance of offences and proceeding in accordance with the provisions contained in the said Chapter.”
With respect to the registration of FIR, the Court referred Lalita Kumari v. Govt. of UP, (2014) 2 SCC 1, and reproduced the eight pointers laid down by the Supreme Court, reiterating the scope of Section 154 CrPC. The Court further placed reliance on the case of Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287, where it was categorically said, “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.”
Moreover, addressing the contention of the counsel for the petitioner that the Magistrate could not have delegated his powers to verify the veracity of the allegations made, the Court said, “(…) once the Magistrate decided to proceed in terms of Section 156(3) of CrPC, she had no option but to get the allegations made in the complaint verified by the officer-in-charge of the Police Station. The Magistrate could have done so by herself only if she would have decided to proceed in terms of the provisions contained in Chapter XIV of the Code of Criminal Procedure and not otherwise.”
Dismissing the present petition on lack of merits, the Court clarified the interplay of Section 156(3), Section 154 and Section 190 CrPC.[Taro Devi v. UT of J&K, 2020 SCC OnLine J&K 549, decided on 22-10-2020]
Sakshi Shukla, Editorial Assistant has put this story together