it seems that your matter is related to wrong jurisdiction issue, the police or court have power to transfer the case as well as investigation to concerned police station or court. better to consult with documents

it seems that your matter is related to wrong jurisdiction issue, the police or court have power to transfer the case as well as investigation to concerned police station or court. better to consult with documents

Dear Mr. Shivayogi,

 

Please check whether the police is making inquiry or investigation. whether the FIR has been registered or not.

As per you query I am of the view that FIR has not been registered and magistrate ask police to make inquiry. Police can register the Zero FIR and transfer it to concerned police station even the magistrate looking after your case can transfer it to concerned magistrate through District Judge / JCMM.

 

Rajiv Bhasin

Advocate

Bhasin Legal Consultants

SOLICITORS AND ADVOCATES

www.bhasinlegalconsultants.com

Dear Mr. Shivayogi,

 

Please check whether the police is making inquiry or investigation. whether the FIR has been registered or not.

As per you query I am of the view that FIR has not been registered and magistrate ask police to make inquiry. Police can register the Zero FIR and transfer it to concerned police station even the magistrate looking after your case can transfer it to concerned magistrate through District Judge / JCMM.

 

Rajiv Bhasin

Advocate

Bhasin Legal Consultants

SOLICITORS AND ADVOCATES

www.bhasinlegalconsultants.com

Dear Sivayogi,

                                I am not going into technical analysis and procedural mistakes and conjectures if you are sure that you filed a complaint u/s 200 of Cr.P.C. if you really filed u/s 200 of Cr.P.C. then generally magistrate has already taken cognizance u/s 201 of Cr.P.C. if so proceed to the same magistrate and submit orally to proceed with the case in the manner of trial of  complaint case starting inquiry u/s  202(optional but generally recommended,  and  mandatory  if accused resides beyond the limit of local jurisdiction of the court ), then process u/s 204;

 

if  magistrate thinks he did not take cognizance and therefore directed investigation u/s 156(3) of Cr.P.C, then you submit for taking cognizance and proceed as complaint procedure case from 201 onwards.

Magistrate himself can inquiry u/s 202,record statements of your evidence  or any person could be directed to investigate and submit statement of findings no necessarily by police and not necessarily u/s 173 of Cr.P.C, no G.R case required to be registered for such inquiry. Magistrate not bound by findings if not satisfactorily conducted. 

if you really filed mentioning complaint u/s 200 Cr.P.C, then it  was clear you wished to prosecute in complaint procedure, and magistrate could not direct police to register case,investigate and submit report by provisions of s156(3).

 

if you yourself requested that a police investigation to be directed u/s 156(3),then you should refrain from stating s200 Ct.P.C.  A magistrate can direct investigation first u/s 156(3) pre cognizance stage 2.. u/s 202 post cognizance stage.

Let me now touch the other aspect of the incident. as regards unparliamentary expressions by an IPS it is the court who is responsible most for such arrogant officers approach. it is a common fact that police enjoy extreme power and administration does not employ fetter that is prescribed, for police does not disobey a civil officer; and often disobey judicial officers, does not bother to maintain protocol and official procedures;but judicial officers never proceed against the delinquent officer though magistrates have enough scope to do so. Police Act, police manual, code of conduct,and presently IPC , contempt of court Act. all provide provisions of punishing  such disobedience and dormancy, In fact justice and its position is but a by product of judicial profession, not objective. The lowering sense of  height and respect of judiciary is not clearly perceived in personified form particularly in subordinate judiciary.  The Cr.P.C is only Act which does not prescribe inherent punishment for violation by police.which does not punish does not make any good in country like India,where duty is thought to be hazards of earning money, and so least is done all passed away.  You may write to police commission describing details with witness if any; or you mat simply write to S.C. complaining all facts;or you may file complaint against police under police act or IPC new sections for prosecution of govt.officer due to disobedience negligence in performing service to nation and disobey direction of law. May approach magistrate requesting to proceed for contempt before high court.

So for now you just  simply proceed to the same court, submit orally for taking cognizance( generally he ought to have taken already to proceed with recording any order, and that is why magistrate could not fall back upon s156(3) which is precognizance stage) of the  offence u/s 201,follow  u/s202,  then magistrate may himself to launch an inquiry by detailed or outline hearing of evidence on record,witness if any including you; or he may direct any officer from court, from civil administration, CID, a particular police officer or any other capable person to conduct an investigation as contemplated u/s 202, and submit findings no opinion of police or that officer is required,it need not be in the form of C.S or F.R. simply recorded statements and inspected facts to be reported. No case or police case required to be registered as G.R case. if  it is not available then merely on the basis of your statement recorded by magistrate let the magistrate proceed with issue of process u/s 204 if there is on the face value  material of offence complained of..

How to take help of police when there is no FIR?

Police plays a vital role in collection of evidence and facts which is heart and soul for a criminal case. The main role of police in criminal case is Search, Seizure and interrogation. It is widely believed that the role of police starts after the registration of FIR which is under 154 of Cr PC or when magistrate  directs the registration of  FIR and investigation under 156(3). but will happen if your 156(3) is also dismissed and no FIR is registered in your case. The answer is complaint under 200CrPC.

Brief about 200 CrPC

The provisions of 200 CrPC are of different nature and is made for people who can prove their own case without the intervention of police that means there is no requirement of search and siezure in the case and complainant has material to prove a criminal case. Generally offences like cheating, forgery, criminal breach of trust  are good cases to come within the ambit of S. 200 Crpc.

Role of police in 200 CrPC

The role of police in 200 CrPC is defined under 202 CrPC

 If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.

The role of police is limited when it comes to inquiry under 202 Crpc and magistrate has to record reasons before initiating such inquire and specifying the scope of inquiry.

Judgments on role of police in 200Crpc

In Kewal Krishan vs Suraj Bhan and another AIR 1980 SC 1780 "Further, the inquiry under Section 202 is of a limited nature. Firstly, to find out whether there is a prima facie case for issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose is to find out "whether or not there is sufficient ground for proceeding against the accused". The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202CrPC the accused has no right to intervene and it is the duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made."

 In Kewal Krishan vs Suraj Bhan and another AIR 1980 SC 1780, to the effect that the standard to be adopted by the judicial Magistrate in scrutinizing the evidence is not the same as at the stage of framing charges. At the stage of Section 204 Cr.P.C., if there is prima facie evidence in support of the allegations in the complaint, that would be sufficient ground for issuing process to the accused. Standard of the said evidence so collected to sufficient grounds for proceeding further is lower than the one to be adopted at the stage of framing charges. It is always open to the Magistrate to weigh the probability and prima facie truthfulness of the evidence produced at the preliminary stage and to form an opinion that no ground exists for proceeding against the accused by passing a speaking order. Wide discretionary power has been conferred u/s 202(1) Cr.P.C. to postpone the issue of process and to either hold an inquiry himself or to direct an investigation to be made by the police officer as he thinks fit, for Cr.Misc. 54913 M of 2007 - 20-

the purpose of deciding whether or not there is sufficient ground for proceeding. When a statute gives wide discretionary power to an authority or Court to adopt any one of the procedures prescribed under law, it becomes mandatory for the said authority for recording reasons for exercising the power even if the statute does not expressly enjoin upon the said authority to do so. It goes without saying that the reasonableness of the exercise of discretion can be decided keeping in view the object, which the statute seeks to achieve while granting discretion.

Magistrate to apply judicial Mind

In Ranjit Puri and others vs Uggar Sain1974 Crl.L.J. 1229, an order passed by the Magistrate, not recording reasons for postponing the issue of process and directing the police investigation was set aside by the our High Court. The order directing the police to investigate the matter, after preliminary investigation and the order of issuing process without proper application of judicial mind, was held to be bad.

Conclusion

The police does not have unfettered powers of investigation in 202 unlike 156(3) but still police can get involved in cases pertaining to  200 crpc but for a limited purpose.

 

By Adv. Nitish Banka

Practicing Advocate in Supreme Court of India

nitish@lexspeak.in