Application U/s 156(3) CrPC Seeking Registration Of FIR Cannot Be Dismissed Merely On The Ground Of Delay: Calcutta High Court

The Calcutta High Court observed that a magistrate cannot dismiss an application under Section 156(3) of Criminal Procedure Code merely on the ground of delay in lodging complaint.

The magistrate cannot draw an inference that because of delay of lodging complaint it could be inferred that the application could not be treated as FIR on the ground of inordinate delay, Justice Bibek Chaudhuri observed.

The court added that there is no direction in the Supreme Court judgment in Lalita Kumari case to throw an application away under Section 156(3) of the Code on the ground of delay without sending it to the police authority for either preliminary inquiry or investigation treating the same as FIR.

In this case, the Magistrate had rejected an application under Section 156(3) of the Code predominantly on the ground that there was abnormal delay in alleging of the FIR in initiating criminal procedure.  The magistrate noted that the alleged incident took place on 29th November, 2018 and the petitioner lodged the complaint after elapse of about two years on 12th November, 2020, and that the explanation of delay in lodging such complaint was not satisfactory and convincing.

It was contended before the court that the Supreme Court judgment in Lalita Kumari (supra) never empowers the Magistrate to outright dismiss an application under Section 156(3) of the Code on the ground of delay. Agreeing with the same, the court observed:

18. It is needless to say that unexplained delay in lodging complaint in most of the times proves fatal for the prosecution. At the same time, there are plethora of decisions of the Apex Court where it is held that in a case of sexual assault and rape delay in lodging FIR by itself is not a ground to discard the written complaint. The delay in lodging FIR is not of much significance as the victim has to muster courage to come out in open and express herself in a conservative social milieu. In cases of rape, the delay in filing FIR by the prosecutrix in all circumstance is not of significance. Sometimes the fear of social stigma and on some occasions fear from the accused persons that she may be subjected to further assault of like nature and absence of physiological inner strength to undertake a legal battle against the man of money, muscle and power are the reasons for delay in lodging complaint.

The court also disagreed with a single bench judgment in Mukul Roy vs. State of West Bengal (2019) Cri.L.J 245 (Cal) that observed that the Magistrate shall verify the truth and veracity of the allegations, record being had to the nature of the allegations of the case. 

"With all humiliation and greatest respect to the Hon'ble Judge the said direction is not in conformity with the direction made by the Hon'ble Supreme Court in Lalita Kumari (supra) in Paragraph 120.5 of Lalita Kumari, the Hon'ble Single Judge clearly directs that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received, but only to ascertain whether the information reveals any cognizable offence. When the police authority in case of preliminary inquiry prior to the registration of a case concerning cognizable offence is not entitled to verify the veracity, how would a Magistrate be able to verify the truth and veracity of the allegations contained in the application under Section 156(3) of the Cr.P.C. In view of what has been stated above and applying the ratio of Lalilta Kumari, this court holds that sub paragraph (4) of Mukul Roy's case is not a correct guideline to be followed by the Magistrate while dealing with an application under Section 156(3) of the Code."

The court said that upon receiving an application under Section 156(3) of the Code two alternative courses of action are open to the Magistrate.

1. The Magistrate can under Section 190 of the Code, before taking cognizance ask for investigation by police under Section 156(3) of the Cr.P.C.

2.  If the Magistrate thinks fit he can take cognizance upon the petition of complaint and follow the procedure contained in Section 202 of the Code.

Setting aside the Magistrate's dismissal order, the court observed: 

28. Before I part with, I am tempted to mention the effect of delay in lodging FIR. In a criminal case the FIR is the earliest statement of commission of a cognizable offence. It is not a substantive piece of evidence and it can be used in trial either for corroboration or contradiction. Delay in lodging complaint is treated as a ground of false narration of the incident, embellishment and suppression of material fact. 29. All such points are to be decided by the Court during the trial of a case. While dealing with an application under Section 156(3) of the Code, the Magistrate cannot decide the effect of delay in lodging complaint. Lalita Kumari empowers the police authority to conduct preliminary inquiry over inordinate delay in lodging the complaint. The Supreme Court never directs in Lalita Kumari to throw an application away under Section 156(3) of the Code on the ground of delay without sending it to the police authority for either preliminary inquiry or investigation treating the same as FIR.

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