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Tag: Sakiri Vasu Vs State of U.P. and Ors

XYZ Vs State of Madhya Pradesh and Ors on 05 Aug 2022

Posted on December 2, 2022 by ShadesOfKnife

A division bench of Apex Court as follows, wrt a Magistrate directing Police to register a FIR u/s 156(3) CrPC.

From Paras 12 and 13,

12. By the above order, the JMFC came to the conclusion that, prima facie, “occurrence of the offence by the accused persons” was “shown”. Nonetheless, the JMFC held that the case could be decided without collecting evidence from the police and it did not appear just and proper to act on the case filed on behalf of the appellant under Section 156(3) CrPC. The JMFC proceeded to treat the complaint as a complaint case by granting liberty to the appellant to be present for the recording of her statements under Sections 200 and 202 CrPC.
13. The order of the JMFC was questioned by the appellant under Section 482 CrPC. By an order dated 6 January 2022, a Single Judge of the High  Court dismissed the application. The High Court held that the JMFC was not under an obligation to direct the police to register the FIR and the use of the expression “may” in Section 156(3) CrPC indicated that the JMFC had the discretion to direct the complainant to examine witnesses under Sections 200 and 202 CrPC, instead of directing an investigation under Section 156(3). The High Court also held that if the JMFC decided to proceed by examining witnesses under Sections 200 and 202 of CrPC, she would still have the option of seeking an investigation by the police, at that stage, by directing an inquiry under Section 202.

From Para 16,

16. We cannot help but note that the police’s inaction in this case is most unfortunate. It is every police officer’s bounden duty to carry out his or her functions in a public-spirited manner. The police must be cognizant of the fact that they are usually the first point of contact for a victim of a crime or a complainant. They must abide by the law and enable the smooth registration of an FIR. Needless to say, they must treat all members of the public in a fair and impartial manner. This is all the more essential in cases of sexual harassment or violence, where victims (who are usually women) face great societal stigma when they attempt to file a complaint. It is no secret that women’s families often do not approve of initiating criminal proceedings in cases of sexual harassment. Various quarters of society attempt to persuade the survivor not to register a complaint or initiate other formal proceedings, and they often succeed. Finally, visiting the police station and interacting with police officers can be an intimidating experience for many. This discomfort is often compounded if the reason for visiting the police station is to complain of a sexual offence.

From Para 18,

18. Whether or not the offence complained of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence is made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR. The law in this regard is clear – police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence.

From Para 21 (bare reading of complaint)

21. It is clear from the above extract that the Magistrate has wide powers under Section 156(3) which ought to be exercised towards meeting the ends of justice. A two-judge Bench of this Court in Srinivas Gundluri v. SEPCO Electric Power Construction Corpn.,7 further clarified the powers of a Magistrate and held that whenever a cognizable offence is made out on the bare reading of complaint, the Magistrate may direct police to investigate.

From Paras 23 and 24,

23. It is true that the use of the word “may” implies that the Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning. An important fact to take note of, which ought to have been, but has not been considered by either the Trial Court or the High Court, is that the appellant had sought the production of DVRs containing the audio-video recording of the CCTV footage of the then Vice-Chancellor’s (i.e., the second respondent) chamber. As a matter of fact, the Institute itself had addressed communications to the second respondent directing the production of the recordings, noting that these recordings had been handed over on his oral direction by the then Registrar of the Institute as he was the Vice-Chancellor. Due to the lack of response despite multiple attempts, the Institute had even filed a complaint with PS Gole Ka Mandir on 29 October 2021 for registering an FIR against the second respondent for theft of the DVRs.
24. Therefore, in such cases, where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate’s notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate’s duty to order the police to investigate. In cases such as the present, wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation.

XYZ Vs State of Madhya Pradesh and Ors on 05 Aug 2022
Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 156(3) - Any Magistrate Empowered u/s 190 May Order Such an Investigation as above-mentioned CrPC 156(3) - Application to be supported by an Affidavit CrPC 156(3) - Magistrate cannot examine the Complainant or Witness on Oath before taking Cognizance Lalita Kumari Vs Govt.Of U.P. and Ors Reportable Judgement or Order Sakiri Vasu Vs State of U.P. and Ors XYZ Vs State of Madhya Pradesh and Ors | Leave a comment

M. Subramaniam Vs S. Janaki on 20 Mar 2020

Posted on January 31, 2021 by ShadesOfKnife

3-Judge bench of Apex Court held that mere pendency of civil proceeding (divorce, maintenance, dvc etc) is not a good ground and justification to not register and investigate an FIR if a criminal offence has been committed.

 

M. Subramaniam Vs S. Janaki on 20 Mar 2020

Citations : [2020 SCC ONLINE SC 341], [2020 (2) Crimes 261 (SC)], [2020 (5) CTC 464]

Other Sources :

https://indiankanoon.org/doc/37685877/

https://www.casemine.com/judgement/in/5e78e5bf3321bc362da2b770

https://www.indianemployees.com/judgments/details/m-subramaniam-and-another-versus-s-janaki-and-another

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to Landmark Case M. Subramaniam Vs S. Janaki Non-Reportable Judgement or Order Pending Civil Cases not Justification for not registering FIR Sakiri Vasu Vs State of U.P. and Ors | Leave a comment

Sakiri Vasu Vs State of U.P. and Ors on 7 Dec 2007

Posted on November 5, 2020 by ShadesOfKnife

Sitting on a Division Bench of Apex Court, Justice Katju held as follows,

From Para 11,

11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

And then from para 17 and 18,

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without
special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.

Then from para 24-28,

24. In view of the above-mentioned legal position, we are of the view that although Section 156(3) is very-briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.
25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation,
and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The
High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.
28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.

And finally from para 30 and 31,

30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna (supra).
31. No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

 

Sakiri Vasu Vs State of U.P. and Ors on 7 Dec 2007

Citations : [2007 AIOL 1247], [2007 JT 13 466], [2008 SCC 2 409], [2008 AIR SC 309], [2007 CRIMES SC 4 338], [2008 SUPREME 8 226], [2007 SCR 12 1100], [2008 SCC CRI 1 440], [2007 SCALE 13 693], [2008 AIR SC 907], [2008 AIC SC 62 236], [2008 KERLT 1 724], [2008 AIR SCW 309], [2008 GUJ LR 2 1666]

Other Sources :

https://indiankanoon.org/doc/1836621/

https://www.casemine.com/judgement/in/5609ae45e4b01497114135cc

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 154 - Information in Cognizable Cases CrPC 156(3) - Any Magistrate Empowered u/s 190 May Order Such an Investigation as above-mentioned Landmark Case Legal Procedure Explained - Interpretation of Statutes Sakiri Vasu Vs State of U.P. and Ors | Leave a comment

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