18 July 2012
Since the police and DCP failed to file FIR, I moved an application u/s 156(3) CrPC, typed on plain paper, with important documents annexed and affidavit signed and stamped by Registrar of court (with 5 Rs court fee stamp,) and also applied the court fee stamp of 10 Rs to application. I had made only one opposite party: Senior Police Inspector of police station who did not register the FIR. The Magistrate rejected saying the complaint is not in proper form (?). She also objected that I had made only one respondent i.e. Senior Police Inspector. She has asked me to satisfy her on 30.7.2012, that the complaint can be admitted. Please help
18 July 2012
Yes the court wsa right. In stead of donning the role of an advocate you should have taken help of one. The petition u/s 156(3) lies only against the accused person not against the Police officials for not registering the FIR. Withdraw it and file afresh against the accused persons and not against the Police officials.
18 July 2012
The complaint is required to be filed under section 200 of Criminal Procedure Code only against the accused persons against whom you want to take criminal action and additionally an application under section 156 (3) is annexed requesting the court to send the complaint to the concerned police station for investigation and for lodging FIR accordingly. The same title is required to be mentioned in this application.
It seems that instead of stressing on the main topic, you started a new story and application was addressed against police officials who refused to entertain your complaint against the accused. It shall be better to withdraw your earlier case and file with the help of a lawyer.
19 July 2012
19 July 2012
Let us see the relevant case law in order to know the power of Magistrate under section 156 (3) of Criminal Procedure Code,1973. - It has been held by The Hon'ble Apex Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that ''no one can insist that an offence be investigated by a particular agency''. This view was agreed in Sakiri Vasu vs State Of U.P. And Others . - In Sakiri Vasu vs State Of U.P. And Others, it was further held that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. 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) Cr.P.C. 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. -The Hon'ble Supreme Court held in D. Lakshaminarayana v. V. Narayana , after comparing the relevant provisions of the 1898 Code and the 1973 Code, it was held as follows (at page 1365; of Cri LJ) :- "It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words 'may take cognizance' which in the context in which they occur cannot be equated with 'must take cognizance'. The word 'may' gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under S. 156(3) will be conclusive to justice and save the valuable time to the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. This raises the incidental question: What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973 he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence. The position under the Code of 1898 with regard to the power of a Magistrate having jurisdiction to send a complaint disclosing a cognizance offence - whether or not triable exclusively by the Court of Session - to the Police for investigation under section 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under section 156(3) and the one directed under section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation. -In Polavarapu Jagadiswararao v. Kondapaturi Venkateswarlu6, wherein it is held as follows :-
"As noted supra, on receipt of a complaint under S. 200, Cr.P.C., the Magistrate shall record the sworn statements of the complainant and the witnesses, if any, present and (i) may take cognizance of the offence under S. 190(1)(a) and issue process, or (ii) postpone the issue of process under S. 202 and (a) inquire into the case himself or (b) direct investigation by police. Thus, the discretion under S. 202, Cr.P.C., lies with the Magistrate either to inquire into the case himself or direct investigation by the police. It is also open to the Magistrate to issue or postpone issue of process. While exercising his discretion, the Magistrate scrutinises the complaint, the sworn statement of the complainant and also of those recorded from the witnesses, if any, and then arrives at a decision as to whether to take cognizance of the offence under S. 190(1)(a) or to postpone issue of process under S. 202, Cr.P.C. or to refer the case to the police under S. 156(3), Cr.P.C. for investigation. It is only in case of deciding that the material is not sufficient to take cognizance of the offence he may refer the matter to the police under S. 156(3) for purposes of investigation. Therefore, when once the Magistrate after scrutinising the complaint, the sworn statements and other material comes to the conclusion that he can take cognizance of the offence, there is no need to have a resort to S. 156(3)."
19 July 2012
The WRONG you did is in your own words is here" I had made only one opposite party: Senior Police Inspector of police station who did not register the FIR. "
One has right to lodge FIR and police is obliged to register it under 154,on its'negligence the aggrieved may rush under 154(3)or section 36 Cr.P.c.,when even that does not result fruitfully,the aggrieved has been provided a remedy to get his/her grievances addressed by the magistrate who under law is supposed to have powers to order to lodge FIR,and further by implication have right to even monitor investigations going on.
But the power conferred here is to put police,rather a non active police agency, in action and not to charge them of an offence for having not obliged the aggrieved by not registering the FIR.
So all that is required under section 156(3) by the aggrieved to be done should be the same that he wanted to get done under 154. There is no statutory format for an FIR so is also not there for 156(3) applications.It should be same as an FIR may be addressed to the magistrate with further statement that aggrieved approached under 154 to concerned police station and on its' failure to authority under 154(3) and/or then to one under 36 but that has not yielded any response hence seeking the redress provided in 156(3)with prayer that (a)police be ordered to register the FIR against accused (b)to investigate the same properly.