S. 156 (3) CrPC | Magistrate Can't Refuse Direction To Lodge FIR Merely Because Facts Are In Applicant's Knowledge: Allahabad HC

A bench of Justice Manju Rani Chauhan added that the gravity/seriousness of the offence, the requirement of the evidence to launch a successful prosecution, and the interest of justice, depending on the facts of each case, are factors that must be considered in passing an order under Section 156(3) CrPC.

For context, Section 156 (3) CrPC relates to the power of a Magistrate to order a police investigation into cognizable offences brought before him through a complaint (as defined u/s 2(d) CrPC).

The Single Judge observed thus while setting aside an order passed by Special Judge SC/ST Act Chandauli treating a Section 156 (3) CrPC application filed by the applicant (Mukesh Kharwar) as a complaint while refusing to issue direction to lodge the FIR on the ground that the facts of the case were known to the applicant.

For context, the said application seeking registration of an FIR, alleged that the applicant, an elected member of Kshetra Panchayat 83, Chandauli, attended a gathering on March 4, 2024, with 66 members to propose a no-confidence motion against a Block Pramukh.

After that, on March 14, 2024, while performing pooja at a temple, the applicant was approached by two villagers, who pressured him to sign an affidavit supporting the Block Pramukh, and when he refused, they verbally assaulted him and attempted to take him away on a motorcycle forcibly.

It was further alleged that the applicant was unsuccessful in filing an FIR at the police station, and thus, he decided to file a Section 156 (3) CrPC plea before the concerned court.

The applicant moved the HC, when the judge decided to treat his application as a complainant and proceeded to deal with the matter as a complaint case.

His counsel argued that his application under Section 156(3) CrPC clearly disclosed the commission of the cognizable offence, and as such, the Magistrate must have directed for registration of an FIR instead of treating the application as a complaint case.

On the other hand, the AGA supported the course adopted by the Magistrate by contending that the applicant shall still have an opportunity to prove his case before the court below.

High Court's observations

Having heard the counsels for both parties, the Court observed that the magistrate should exercise the option to direct the registration of the case and its investigation by the police, where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation.

To illustrate, the Court also referred to the following situation where investigation by the police may be directed:

(1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or

(2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or

(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved.

To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or

(b) recovery of case property is to be made and kept sealed; or

(c) recovery under Section 27 of the Evidence Act; or

(d) preparation of inquest report; or

(e) witnesses are not known and have to be found out or discovered through the process of investigation.

Further, the Court also noted that where the complainant has the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected, which can be done only by the police, no "investigation" would normally be required, and in such cases, the procedure of the complaint case should be adopted.

“It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr. P.C. order investigation, even thought of a limited nature,” the Court added.

However, the Court also referred to the Allahabad HC's Judgment in the case of Lalaram vs State Of U.P. And 13 Others, wherein it was held that in either way, issuing direction for investigation by the police officer under Section 156(3) CrPC or taking cognizance and registering it as a complaint case, the Magistrate has to apply judicial mind and there cannot be a mechanical exercise of jurisdiction or exercise in a routine manner.

Against this backdrop, perusing the impugned order, the Court noted that no sufficient reason had been disclosed, based on which the Magistrate had proceeded to treat the application under section 156(3) CrPC as a complaint.

The Court also emphasised that merely because the facts are in the applicant's knowledge, the direction to lodge an FIR cannot be refused.

Given this, the court set the impugned order aside, concluding that the Court concerned did not assign any valid reason for the order. It was further noted that the impugned order did not reflect the application of a judicious mind and had been passed mechanically only on the ground that the case facts were within the applicant's knowledge.

The Court concerned was directed to pass a fresh order on the application under Section 156(3) CrPC filed by the applicant after affording both parties an opportunity for a hearing within one month, in accordance with the law.

Case title - Mukesh Kharwar vs. State Of U.P. And 3 Others

Case citation:

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