LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

madhu mittal (director)     12 July 2013

To get copy of application u/s 156(3)

A complaint was  lodged u/s 156(3) alleging that police denied registration of FIR, now magistrate sent the complaint for investigation in Police Station. The Police did not lodge FIR till time, but want to question the person named as accused. Does the person named as accused have the right firstly to have a copy of that complaint and secondly discussing it with his consult before answering any question.



Learning

 10 Replies

vivek malhotra (Advocate)     12 July 2013

you can get the copy of the complaint from the concerned court. Either by applying the certified copy of the same or 

Narender Raj G (Advocate)     12 July 2013

Once a complaint is referred by the Magistrate under section 156(3) of Cr.P.C., it transforms into First information under section 154(1) of Cr.P.C. The Police inevitably has to register FIR, irrespective of any defects or validity, in accordance with Law laid down by the Hon'ble Apex Court in Madhubala case. (Judgement attached).

Once FIR is issued the police has to issue "free authenticated copy", to the complainant in accordance with section 154 of Cr.P.C. Otherwise the complainant can get certified copy from the Court of the Magistrate.



The accused does not have any role at investigation/enquiry stage subject to certain exceptions. Police can call the accused for questioning only after registering the FIR. The police can demand the accused to appear before it by issuing notice under section 41A of Cr.P.C. The accused cannot demand copy of FIR from police at that stage but he can request to look into the FIR for giving answers to queries by police. Of course the accused can get certified copy from the Court of the Magistrate.

 


Attached File : 975638200 madhu bala case.pdf downloaded: 496 times
1 Like

madhu mittal (director)     13 July 2013

Respected Raj ji and other members,

Let me know "certain exceptions"

Thanks for attending my query

Ashok, Advocate (Lawyer at Delhi)     13 July 2013

Let me make it very clear that FIR is a public document and its copy can be demanded on payment of the prescribed fee. The accused has a right to obtain a copy of the FIR. Once the FIR is registered by the police station, its copy is sent to the Magistrate having jurisdiction and also to the Superintendent of Police office (or sub-divisional police officer). So, an accused can obtain a copy of the FIR either from the police station, or from the Magistrate court, or from the SP office (if FIR is available there). For this purpose, you can make an application and pay the prescribed fee (which is a nominal fee).

 

It is pertinent to mention that as per the orders of Delhi High Court, in Delhi the police is required to display copies of all FIRs on its website. If you visit the Delhi Police website https://www.delhipolice.nic.in/   you can view the FIRs online by clicking the link for the "View FIR" page (on the left menu bar of the website). Moreover, the above Delhi Police website also has a link (left menu bar of website) for downloading the format of an application for obtaining copy of the FIR. Thus, at least in Delhi, when the FIR is displayed for all members of public on the Delhi Police website, there is no question that the accused cannot get a copy of the FIR.

 

In fact, in other places also, it is the right of the accused to obtain copy of the FIR so that he can protect his interests. FIR has been held to be public document the copy of which can be obtained on payment of prescribed fee, and it is not a privileged document that can be withheld from the accused.

 

Your second question is with regard to questioning of the accused by police. In this regard, please note that recently, with effect from 01.11.2010, a new Section 41-D has come into operation in the Criminal Procedure Code (Cr.P.C.), which lays down as under:

 

"41-D. Right of arrested person to meet an advocate of his choice during interrogation.— When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation."

 

So, one can make use of this new provision after arrest. In addition, I may add that the accused can definitely consult an advocate BEFORE he goes to the police for questioning (when called by police). However, DURING the actual questioning by the police, the right may be subject to the above new provision and there may be some restraints.

2 Like

madhu mittal (director)     13 July 2013

Thanks a lot Dr Ashok ji for giving reply of my query and clearly mentioning that Copy of  FIR can be obtained from Police by paying a nominal fees. But Before FIR there is also Pre-FIR stage. An application u/s 156(3) was submitted to Magistrate that creditor ( please have a look on this https://www.lawyersclubindia.com/experts/Locus-standi-u-s-156-3-before-sending-to-police-information-of-complaint-from-Govt-Dept--403096.asp#.Uc7TO9jQzmk) forged an undertaking of his employer to pressurize the borrower to get his dues recovered by alleging FIR was not lodged by the police. The Magistrate sent this application for investigation to police to ascertain whether there is an cognizable offence and there is no Direct Order to make the FIR, and then Police Still have not lodged FIR, but at Pre FIR stage, investigating the matter of application, whether there is an offence of cognizable offence, at this stage, police want to ask questions from the person named as accused in the application, now whether the person named as accused has the right of demanding the copy of that application (ready to pay the fee amount) as that application also came through the Magistrate Court, in other words has the person named as accused has the same right of demanding the copy of that application as he has the right of copy of FIR.

Ashok, Advocate (Lawyer at Delhi)     13 July 2013

Actually, Section 156 Cr.P.C. presupposes the existence / commission of a “cognizable offence” since it talks of “investigate any cognizable case”. Therefore, under Section 156(3) of Cr.P.C., the power of the Magistrate is only to “order such an investigation” in a cognizable case. If there is a doubt whether or not a cognizable offence is made out, the Magistrate cannot make use of Section 156(3) to order an “enquiry” to find out whether a cognizable offence is made out. Therefore, in your case, if the order has been issued under Section 156(3) of Cr.P.C. to conduct pre-FIR enquiry to find out whether a cognizable offence is committed, then it is a wrong order.

 

If the Magistrate is not sure whether any cognizable offence has been committed and /or whether there is ground to proceed further, he has the power under Section 202 Cr.P.C. [but NOT under 156(3) Cr.P.C.] to either conduct such inquiry himself or get it done from others (including an investigation by police.

 

The fact remains that under Section 156(3), only investigation by way of registration of FIR can be ordered, and not an enquiry to find out whether any cognizable offence is made out.

 

Any way, if the FIR is yet to be registered, then during such pre-FIR stage, I have not come across any judgment which says that the police must supply the copy of the complaint to the accused / suspect, thought the principles of natural justice would require that it should be done. In fact, there is a judgment of the Supreme Court in which it has been held that when a petition is filed before the High court for directing investigation in a case, the High Court should give an opportunity of hearing to the opposite party in accordance with the principles of natural justice [which means that they would get copy of the complaint / petition]. Though this judgment is not directly applicable in the case of a Magistrate, but one can try to use the same principle there (i.e., principles of natural justice).

 

 

Therefore, you may try making an application to the police for getting a copy of the complaint. Additionally, you can also try to get the copy from the Magistrate, and I think it should be possible if you file an application before him.

1 Like

madhu mittal (director)     13 July 2013

Thank you for your advise, please give the name of the decision of Supreme court, so that I can go through it, and it can be shown to police authority. 

Ashok, Advocate (Lawyer at Delhi)     13 July 2013

The citation for the Supreme Court decision referred to above is:

 

Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 : AIR 2008 SC 1614 : 2008 Cri LJ 1891.

 

It is available online at the address:

 

https://judis.nic.in/supremecourt/imgs1.aspx?filename=30832

1 Like

Harsh (Manager)     13 July 2013

@experts a private complaint with magistrate under 156 will become an FIR at the PS. If the police however files a B Report in the end (due to bribe or influence); what options are available to ENSURE a trial happens? I also read that under 200, all inquiry can be conducted by magistrate and a case number assigned. thanks

Ramanathan G (Independent practice)     14 July 2013

reply given in page https://www.lawyersclubindia.com/forum/details.asp?mod_id=83484&offset=1

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading

Post a Suggestion for LCI Team
Post a Legal Query