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short note on legal opinion for registering FIR

                                 SHORT NOTE ON LEGAL OPINION

FACTS:

Deepu Saxena, whose bank account is in Punjab National Bank. He has an ATM card. He never Share pin & other details or did not transact online. But, he got a message on his mobile that Rs 25,000/- has been debited. He approached the bank, who advised him to file a complaint with police. Police did not register the complaint, rather advised him to take up the issue with his bank. Deepu also wrote to the Superintendent of Police. 

ISSUE:

To whom should Deepu approach for getting the F.I.R. be registered.

LEGAL ASPECT:

In such cases when police were not interested in pursuing your case, there is a legal remedy to approach magistrate or court. The power of police officer to investigate cognizable offence is vested under section 156 of Code of Criminal Procedure.   Section 156 (3) under Code of Criminal Procedure, magistrate can give direction to police in order investigate in the cases disclosing commission of cognizable offences. The magistrate order police to submit report of the investigation to the court. The power of the magistrate under section 156 (3) is limited and vested in order to meet the end of Justice. In Dilawar Singh V. State of Delhi (2007) Supreme Court held that F.I.R. Shall be register before investigation of cognizable offences. 

Section 200 of Code of Criminal Procedure, provide for the examination of complainant. A magistrate taking cognizance of an offence on complaint shall examine upon the complainant and the witness. In the case of pending F.I.R. where police already  investigated, Magistrate cannot interfere. Magistrate were not allowed to control the investigation of police. 

In the case of Priyanka Srivastav V. State of U.P. (2015) court held that aggrieved cannot directly approach magistrate. There has to be prior application under section 154 (1) where complainant approach police station and give information to the police in charge of the concerned police station about the offence disclosing cognizable in nature, and an application unded section 154 (3) where the aggrieved who is not able to register his/her F.I.R. in the police station approach Superintendent of Police or Deputy General of Police through administrative channel to register F.I.R., after exhausting above mentioned remedies complainant can approach court under section 156 (3) of Code of Criminal Procedure complaint supported by affidavit. The court check that no false affidavit if made, once an affidavit is found to be false, complainant shall be liable for prosecution in accordance with law. 

In the case of Sakiri Vasu V. State of U.P. (2007) court held that an application under section 156 (3) is filed before the Magistrate, the magistrate can direct the F.I.R. to be registered & also can direct a proper investigation to be made in a case, where no proper investigation is made by the police only in exceptional cases not in casual nature. The magistrate also empowered to register a criminal offence to direct the officer in charge of the concerned police station to hold a proper investigation. 

In the case of Rameshbhai Pandurao Hedau V. State of Gujrat (2010) complainant brother has been murdered and according to postmortem report death is result of natural cause. No F.I.R. has been registered by the police. Aggrieved went to court under section 156 (3) but plea entertained according to section 202 as private complaint. As per the provision of section 202 there is no clause that talk about mandatory registration of F.I.R., at the end aggrieved went to Supreme Court. Supreme Court raise a vital question whether magistrate committed an error in rejecting the prayer for an investigation under section 156 (3) of the code & taking recourse to section 202 of the code instead.  Supreme Court held that magistrate has both available option to take cognizance under section 202  & kept the matter with himself for an inquiry or consider case under 156 (3) and allow police to register F.I.R. and investigate the case. It solely depend on magistrate discretion. 

In the case of Skipper Beverages PVT. LTD. V. State (2001) Delhi High Court held that power of magistrate is not mechanical but judicious in nature. Complaint shall be consider under private complaint when there is proper evidences, complainant is able to file his/her case, therefore magistrate must apply his mind and take cognizance under section 200 of the code. 

In the case of Arvindbhai Ravjibhai Patel V. Dhirubhai Sambhubhai (1997) court held that magistrate cannot pass order in mechanical way, the order shall be judicious and based on case to case basis. Section 156 (3) shall be used where complainant cannot have proper evidence, need to cease evidence from the accused, where there is need of investigation. 

Supreme Court in the case of Minu Kumari V. State of Bihar (2006) if acomplaint filed under section 156 (3)  and magistrate treated complaint under section 200 of the code, court assured that no prejudice shall be cause to the complainant. 


DIFFENCE BETWEEN SECTION 200 & SECTION 156 (3) OF THE CODE OF CRIMINAL PROCEDURE:

Section 156 (3) of the Code is a pre cognizance stage where crime is committed but police have not investigated the case. Whereas section 200 of the code is a post cognizance stage where court used its application of mind, and used its prudence to establish cognizance of the crime. Complaint under section 200 where cognizance has been established there is no need to register F.I.R. and investigation, the case is eligible for the court trial. In the case Suresh Chand Jain V. State of Madhya Pradesh (2001) Supreme Court held that the judicial magistrate can order investigation under section 156 (3) of the code, he is not to examine the complainant because he was not taking cognizance of any offence. Supreme Court in Dharmeshbhai Vasudevbhai V. State of Gujrat (2009) held that if the magistrate once takes the cognizance & embark upon the procedure, he is not competent to switch back to the pre-cognizance stage. In the case of Devarapalli Lakshminarayana Reddy V. V. Naranyana Reddy (1976) Supreme Court held that the power to order investigation under section 202 & section 156 (3) is different. The object of an investigation under section 202 is not initiate a fresh case on police report but to assist the magistrate in completing proceedings. 

In the case of Dilawar Singh V. State of Delhi (2002) Supreme Court held that section 156 deal with the power of police to investigate cognizable offences. Investigation envisaged in section 202 is the direct investigation by the magistrate assisted by the police to determine sufficient material facts. 

STRATEGY:

One should file to complaint before magistrate, one related to section 156 (3) and other related to section 166 of Indian Penal Code against police officer for disobeying law by not registering F.I.R. disclosing the commission of cognizable offence. when these 2 complaint placed before magistrate, court want that complainant withdraw his/her complaint against the police. In that case complainant being a position to bargain he/her complaint under section 156 (3) of the Code of Criminal Procedure. 

The act of not registering F.I.R. disclosing commission of cognizable offence is a criminal offence committed by the police officer of the concerned police station. In the case of lalita Kumari V. state of U.P. (2013) Supreme Court stated that registration of F.I.R. is mandatory in case of cognizable offence and action shall be taken against public servant for disobeying law under section 166 of Indian Penal Code. In the case of Amit Kumar V. Joginder Singh (2019) Punjab & Haryana High Court held that public servant for violating law by not registering F.I.R. shall be liable under section 166 of Indian Penal Code. 

OPINION:

the act of debiting money from Deepu’s bank account without his consent is the offence of cheating and fraud which is cognizable in nature. Deepu file complaint in the police station as well as approach superintendent of police but on getting no response, he should approach magistrate under section 156 (3) of code of Criminal Procedure. I request Magistrate to consider case in pre-cognizance state and release order for initiate investigation of the case. As soon as the Magistrate order released, police should register F.I.R. before initiating investigation. 





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