Once Magistrate Seeks Preliminary Report On Allegations Made In Application U/S 156(3) CrPC, Police Cannot Straightaway Lodge FIR: Jammu & Kashmir HC

The Jammu and Kashmir and Ladakh High Court recently observed that when a Magistrate directs a preliminary enquiry under Section 156(3) CrPC and the police without reporting back to the Magistrate straightway goes on to file an FIR without any direction thereto, the same amounts to usurpation of the powers of the Magistrate.

The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had challenged the FIR registered with the Police Station, Udhampur.

The petitioner premised his plea inter alia on the ground that the since the Magistrate had ordered a preliminary enquiry under Section 156(3) the police instead of submitting a report to the Magistrate, on its own registered the impugned FIR, thereby circumventing the process of law initiated by the Magistrate.

Justice Dhar noted that the complainant/respondent had initially approached the Police Station and thereafter, the SSP concerned but when the complainant failed to get the desired result of registration of FIR, he filed an application under Section 156(3) CrPC before the Judicial Magistrate.

Court further noted that the Magistrate accordingly directed the SHO, Udhampur to verify the allegations and submit his report by the next date of hearing. On May 17 2021, an application was made by the SHO before the Magistrate seeking extension of 15 days time in submitting his report and amidst these ongoing proceedings the impugned FIR came to be registered.

The moot question that warranted answers from the bench was as to whether the action of the Police to register the impugned FIR when there was no direction from the Magistrate to register the case is in accordance with law, particularly when the Magistrate had specifically directed the SHO concerned to submit his report after verifying the allegations made in the application.

Deliberating on the matter Justice Dhar observed that is true that the incharge of a Police Station is vested with the power to register an FIR once information with regard to cognizable offence is given to him. It is also not in dispute that a Magistrate while passing a direction under Section 156(3) CrPC. is only reminding the officer incharge of a Police Station about his statutory duty to register an FIR in respect of a cognizable offence.

However, once the Magistrate had sought a preliminary report, the Police could not have straight away registered the FIR as the same would not allow the Magistrate to apply her mind to the material prior to passing an appropriate direction.

"In the present case, before the learned Magistrate could apply her mind to the application of the complainant and the report the Police, the proceedings pending before her were rendered redundant by the action of the Police. This amounts to an illegality which is writ large on the face of the record", said the court.

While quashing the FIR the court directed the Investigating Agency to place its report before the Judicial Magistrate, Udhampur, who after considering the report of the Police would be at liberty to pass orders in accordance with law.

Case Title: Farooq Ahmad & Ors Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 58

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