NEW SERIES- Questions And Answers For Judicial Service Examinations(3)- By Justice V. Ramkumar

Q.11 Is the "informant" entitled to a free copy of the information as recorded by the SHO under Section 154 (1) Cr.P.C. ?

Ans. Yes. A copy of the information recorded should be given forthwith to the informant free of cost. (Vide Section 154 (2) Cr.P.C.). This provision is directory and not mandatory. Hence, non-compliance of the same will not vitiate the FIR unless resultant prejudice or injustice is shown. (Vide State rep. by Inspector of Police, Chennai v. N. S. Gnaneswaran (2013) 3 SCC 594 = AIR 2013 SC 3673 – Dr. B. S. Chauhan, V. Gopala Gowda - JJ).

Q.12 Can the SHO refuse to record the FIR on the ground of lack of territorial jurisdiction ?

Ans. No clear-cut answer can be given since the case-law on the point is not uniform.

If the SHO finds that the crime was not committed within his territorial jurisdiction, he can forward the FIR to the police station concerned. But, if after the investigation is over, the SHO arrives at the conclusion that the cause of action for lodging the FIR had not arisen within his territorial jurisdiction, then he is required to submit a report accordingly under Section 170 Cr.P.C. and to forward the case to the Magistrate empowered to take cognizance of the offence. (Vide paragraphs 8 to 10 of Satvinder Kaur v. State (1999) 8 SCC 728 = AIR 1999 SC 3596 – K. T. Thomas, M. B. Shah - JJ).

Refusal by the SHO to record the complaint alleging cognizable offence, on the ground that the Police station concerned has no territorial jurisdiction over the place of crime, amounts to dereliction of duty. Any lack of territorial jurisdiction could not have prevented the recording of information about the cognizable offence. The proper course would be to record the information and forward the same to the Police station having jurisdiction. (Vide State of A.P. v. Punati Ramulu 1994 Supp. (1) SCC 590 = AIR 1993 SC 2644 – Dr. A. S. Anand & N. P. Singh - JJ).

Where a Magistrate directed inquiry under Section 156 (3) Cr.P.C., it was not within the jurisdiction of the investigating agency to submit a final report stating that the cause of action for the alleged offence had taken place outside its territorial jurisdiction. The agency could not refrain itself from holding a proper and complete investigation. (Vide Rasiklal Dalpatral Dhakkar v. State of Gujarat (2010) 1 SCC 1 = AIR 2010 SC 715 – Altamas Kabir, Cyriac Joseph – JJ ).

(NOTE: Applying the strict legal principles, the proper course for the SHO in Rasiklal Dalpatral should have been to register an FIR and transfer the same to the Police Station having jurisdiction to conduct the investigation with a request to send the final report to the forwarding Magistrate and to submit a report to that effect before the Court which forwarded the complaint to the SHO.)

Q.13 Where a cognizable offence is committed off the coast of the State of Kerala beyond the Indian territorial waters but within the Contiguous Zone of India, is it correct that the Central Government alone can investigate and prosecute the offender ?

Ans. Yes. That was the view taken by the Supreme Court in paras 93 to 95 and 114 of Republic of Italy v. Union of India (2013) 4 SCC 721 – Altamas Kabir – CJ & Jasti Chelameswar – JJ.

Q.14 Is it not correct to say that while in the case of a "non-cognizable" offence, the commission of the offence should be within the local limits of the Police Station as mandated by Section 155 (1) Cr.P.C., in the case of a "cognizable" offence, there is no such prescription ?

Ans. No, it is not correct. Even in the case of a cognizable offence, Section 156 (1) Cr.P.C. prescribes the jurisdiction of the Police Station which is co-extensive with that of the Court for which purpose, we may have to refer to Chapter XIII of Cr.P.C. (Vide para 5 of T.P. Nandakumar v. State of Kerala 2008 Cri.L.J. 298 (Kerala) = 2007 (4) KLT 775 – V. Ramkumar - J and para 11 of Anil Kumar v. Sindhu 2009 (2) KLT 359 – V. Ramkumar – J). The prescription under Section 156 (1) Cr.P.C. is that the jurisdiction of the SHO corresponds to that of the Magistrate within whose jurisdiction the police station is located. The Cr.P.C. has fixed the jurisdiction for Courts not only for trial but also for taking cognizance of an offence. If no jurisdiction had been fixed for the Court for taking cognizance of a cognizable offence, then Section 460 (e) Cr.P.C. would have been unnecessary. Likewise, the words "Magistrate empowered to take cognizance of the offence upon a Police report and to try the accused or commit him for trial" occurring in Sections 169 and 170 Cr.P.C. also indicate that any Magistrate cannot take cognizance of the offence. The offence can be taken cognizance of only by that Magistrate who is empowered to take cognizance and try the accused or commit him for trial. This is fortified by Section 173 (2) (i) Cr.P.C. which also directs the SHO to forward the Police report to the Magistrate empowered to take cognizance of the offence. A reading of Section 190 (i) Cr.P.C. along with column 6 of the Table at the First Schedule to the Cr.P.C. shows that, subject to the provisions such as Sections 193, 199 (2) etc of Chapter XIV Cr.P.C., all Magistrates of the first class are empowered to take cognizance and try or commit for trial any accused person. In the case of a Magistrate of the second class, there should be special empowerment. Such being the position, my humble opinion is that the view taken in Trisuns Chemical Industries v. Rajesh Agarwal (1999) 8 SCC 686 = AIR 1999 SC 3499 – K. T. Thomas, M. B. Shah - JJ, requires re-consideration.

Q.15 Can a Magistrate who receives a private complaint alleging the commission of a cognizable offence, forward the complaint under Section 156 (3) Cr.P.C. to the SHO of the Police Station concerned with a direction to treat the complaint as the FIR and to register a case and also to investigate the case ?

Ans. Yes. Even though what Section 156 (3) envisages is only an order for investigation, it presupposes the registration of a crime. Hence, it will be absolutely legal for the Magistrate to forward the complaint to the SHO with a direction to register an FIR treating the complaint as the first information and to investigate the case. (Vide Madhu Bala v. Suresh Kumar (1997) 8 SCC 476 = AIR 1997 SC 3104 - K. T. Thomas, M. B. Shah - JJ).

Part 1: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART I

Part 2: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART II

Part 4: Questions And Answers By Justice V. Ramkumar(4) -Investigation By Police-PART IV

Part 5: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART V

Part 6: Questions And Answers By Justice V. Ramkumar- Investigation By Police-PART V