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R. K. Singh (Business)     16 July 2017

Power of police to transfer fir to other state

Dear Sir/Madam

In this interesting case two 498A FIRs (and other sections) were registered one in Delhi (lodged by wife) and later (on same date) in Uttar Pradesh (lodged by father of wife). There is no incident or allegation of Delhi in the any of the two FIR. Husband filed for quashing U.P. FIR in Allahabad High Court including on the ground of double jeopardy which was denied by HC with a two liner order. This order was not challenged in SC. 

After decision of Allahabad HC (almost 6 months after filing of FIR), U.P. Police with the approval of DIG Police, transferred the U.P. FIR to Delhi on the ground that wife is residing in Delhi. As per Uttar Pradesh Magistrate Court records there is no Police Report in file and thus case is pending!!  The girl side is having good connections and apparently they were able to influence and got the U.P. FIR transferred in this manner. (Their influence is much higher in Delhi and that is why they want the trial in Delhi)

I need the help and guidance of legal luminaries here on the following:-
(i) whether the action of transferring FIR in such a manner legal or illegal? [As per my understanding only SC can do inter state transfer of FIR]. [Police can transfer the FIR to any other P.S. (Police Station) if the P.S. which registered the FIR is not having jurisdiction].
(ii) if it is illegal which law (section/Act) has been violated?
(iii) What is the remedial action which can be taken by husband?

Thanks & Regards
Rajen



 10 Replies

Ms.Usha Kapoor (CEO)     17 July 2017

ONLY sUPREME COURT HAVE POWERS TO TRANSFER AN fir/CRIMINAL COMPLAINT FROM ONE STATE TO ANOTHER STATE.pOLICE HAVE NO SUCH POWER.yOU MOVE AN APPLICATION IN SUPREME COURT TO TRANSFER THE CASE/fir BACK TO UP AS THERE IS HIGH LIKELIHOOD OF YOUR WIFE AND IN LAWS INFLUENCING THE TRIAL AS THEY ENJOY LOTS OF CLOUT IN DELHI AS POLICE HAVE NO POWERS TO  TRANSFER  FIR   FROM ONE STATE TO ANOTHER STATE   since IT IS ILLEGAL.

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     17 July 2017

Supreme Court will transfer a case from one State to another State only if there is a reasonable apprehension on the part of a party to a case that justice will not be done. Mere apprehension that the accused are influential may not be sufficient to transfer the case. 

P. Venu (Advocate)     17 July 2017

The facts are less than convincing; may they are stated incorrectly.

R. K. Singh (Business)     18 July 2017

Dear Madam and Sirs thaks for your replies. 

@ Usha Mam I also believe that they have violated the law. But which law? Can you please tell me the Act/Code name and section number etc. Is there any judgement on Police power to transfer FIR? I want to complain to their seniors so that they write to Delhi Police and call back the FIR. If I go to SC I ll have to bear the costs and there is always a risk involved.  

 

@ Rama Sir, I ll clarify myself, my query is not regarding that I want to go to SC for transfer of FIR. My query is regarding Police power to inter-state transfer FIR. Specially in a case when the transferring police station has the jurisdiction !! I believe there is violation of law. I need guidance for taking it up with DGP office. 

 

@ Venu sir, the facts are true. If you can tell me which particular fact you think is non-convincing, I ll try to explain/detail that fact. My query is how can a police station having jurisdiction do inter-state transfer of FIR by mere letter (without court order)? merely for the convenience of alleged victim. 

 

looking forward for further help in tha matter

Mahadev   20 July 2017

Respected RK Gupta,

The power to transfer a FIR rests with the Police u/s 170 of CrPC from one jurisdiction to another jurisdiction. when they feel either from the contents of FIR the allegations have taken place in your case at Delhi or they do an investigation and  find out that some portion of allegations had taken place at Delhi. Implicitly understanding your case Police might have been bribed and hence they took this step. 

Options :

a)  You can file a writ petition u/s 226/227 Constitution of India with UP High court to transfer the case from Delhi back to UP. Refer Niraj Trivedi v/s state of Bihar Judgment given by Justice Shiv Narayan Dhingra  whereby he transferred a case from Patna to Delhi in similar manner.

b)  If you are saying there is no allegation of cruelty in the FIR at Delhi then you can refer Bimla Rawal v/s State of UP Judgment ( Google it) wherein Hon'ble Delhi High Court had transferred the FIR from Delhi to Mumbai as there was no allegation of cruelty in Delhi. This means you need to go to Delhi HC to file this case.

In my view Option  a will suit you the most. Please read through the Judgments, take print out and then go to which ever lawyer you need to go to in UP.

1 Like

R. K. Singh (Business)     21 July 2017

Respected Mahadev Sir

Thanks for understanding my issue so precisely and also thanks for your specific reply to my query. 

Your reply has really helped my understanding and confidence on the issue.

The two judements of Niraj Trivedi and Bimal Rawal refer to registration of FIR without jurisdiction. 

If you could please also help me with some judgement on power of police to transfer FIR to other State even when the transferor Police Station has the jurisdiction on the FIR. 

Also I want to take it up with DGP office administratively before I approach the HC

Thanks & Regards

Mahadev   28 July 2017

Respected RK Gupta Sir,

If i understand your initial comment correctly, you meant no portion of allegation stated in FIR refers to Delhi and thus Delhi Police should not have jurisdiction to proceed with either the UP FIR transferred to them and  also the Delhi FIR . If this is the case then as stated above you can use the judgments and go to UP High court to pray for transfer of both the FIR's. I have doubts whether going to DGP office in UP might solve your problem as they might be reluctant to ask Delhi Police to transfer both the FIR's to UP for reaons as to why they would do this for you and also whether they have the appropriate authority to ask other state police to transfer the  FIR's . 

Your best chance if any is UP High court  May be the other lawyers in this forum can answer about it. Kindly read through sections 177 and 178 of CrPC which would be useful to you regarding jjurisdictions regd. an offence and the continuity of such offences. Please note u/s156CrPC Police have powers to investigate any cognizable offence irrespective of jurisdiction ( Sec.498A falls in it)  and Delhi police might give you this reason not to transfer the FIR.

Effectively the mess that you are in can only be solved via a good advocate in UP and through UP High court if you want the FIR's to be transferred back to UP.

 

R. K. Singh (Business)     29 July 2017

Respected Mahadev Sir

Thanks once again for your reply and precise guidance. 

I want to go to DGP office with a legal proof that the local police has done illgeal act and thus the FIR which UP Police transferred on their own should be called back.
And if they call back then I want to move to Delhi HC to quash the Delhi FIR and subsequent proceedings for lack of jurisdiction.

Considering the point highlighted by you that u/s156CrPC Police have powers to investigate any cognizable offence irrespective of jurisdiction - we waited and Delhi Police has filed chargesheet. In that also there is no mention of any incident of Delhi. 

What should be my strategy?

Can I go to Del HC on jurisdiction issue and hope for a quash. And in case it is quashed, the U.P. FIR is already transferred to Delhi so that also goes. So I am free of 498A...!! ??

If it is quashed on jurisdiction what will be the impact on divorce case which I want to file? How will it be proved that the FIR was false (for the purpose of cruelty). 

Respected Ramesh Singh Sir
Thanks for your interest in my issue. It is a proper FIR having a number. It is registered under sec. 154 of CrPC. The local Police in U.P. has transferred it to Delhi only with a letter and only with the approval of senior Police Officer most likely DIG. There is no SC / HC order. In fact the Allahabad HC gave us stay on arrest and immediately after the HC final order they transferred the FIR. As per Utter Pradesh Magistrate Record there is no police report. So the U.P. Advocate told me that effectively the case is pending with Court.

Thanks and Regards

Ocean Lee   20 October 2017

Police record is the very difficult job to maintain because a lot of things can be take place in a police department. I am handling a professional college paper writing service and I can provide every kind of help for this purpose.

Nitish Banka (lawyer)     22 March 2018

Posted by: nitish788  Categories: Criminal Law 
 

 

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.

police

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

 


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