LexKAILASH VIJAYVARGIYA versus RAJLAKSHMI CHAUDHURI AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B C D E F G H 135 KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI AND OTHERS (Criminal Appeal No. 1581 of 2021 Etc.) MAY 04, 2023 [M. R. SHAH AND SANJIV KHANNA, JJ.] Code of Criminal Procedure, 1973 : s. 156(3) – Police officer’s power to investigate cognizable case – Application u/s. 156(3) by the victim-complainant alleging rape by the appellants; and sought direction to police to investigate the matter treating the complaint as an FIR – Prior to filing of the said application, the victim filed several complaints before the police authorities, who conducted an enquiry and found that there was delay of two years in filing the complaint and refused to register the same – Dismissal of the application u/s. 156(3) by the Magistrate – Revision application thereagainst, allowed by the High Court, setting aside the order of the Magistrate holding that the Magistrate at that stage could not verify the veracity of allegations – Issuance of direction to the Magistrate to re-consider the application u/s. 156(3) – On remand, the Magistrate passed an order u/s. 156(3) directing registration of the FIR – On appeal, held: It is impermissible and contrary to law to adjudicate on merits the allegations and determine the facts as baseless, without further scrutiny and examination – Thus, the High Court was correct in remitting the matter to the Magistrate for further examination – Magistrate, while passing a subsequent order u/s. 156(3) directing registration of the FIR, misread the order and directions given by the High Court – Magistrate was required to examine, apply his judicious mind and then exercise discretion whether or not to issue directions u/s. 156(3) or whether he should take cognizance and follow the procedure u/s. 202 – He could also direct a preliminary inquiry by the Police – In view thereof, the order passed by the High Court remanding the matter back to the Magistrate is upheld – The subsequent order passed by the Magistrate on remand, directing registration of FIR is remitted back to the Magistrate to apply his judicial mind and exercise the discretion u/s. 156(3) or to take cognizance u/s. 202 of the Code. [2023] 6 S.C.R. 135 135 A B C D E F G H 136 SUPREME COURT REPORTS [2023] 6 S.C.R. ss. 156 (3) and 202 – Power of the Magistrate to direct investigation at pre-cognizance u/s. 156(3) and post-cognizance stages u/ss. 200-210 – Distinction between – Held: Power u/s.156(3) is to be exercised before the Magistrate takes cognizance u/s. 190 – Once the Magistrate takes cognizance, the Magistrate has discretion to take recourse to his powers u/s. 202 – Magistrate exercises a very limited power u/s.156(3) whereas, u/s. 202, the Magistrate can analyse the veracity of the complaint made and appreciate whether there are grounds to proceed further. Disposing of the appeals, the Court HELD: 1.1 The invocation of power under Section 156(3) CrPC is wider as held in Priyanka Srivastava’s case , yet there are limits within which the Magistrate must act. When the Magistrate is satisfied that the allegations made disclose commission of a cognizable offence, he must stay his hands, direct registration of an FIR and leave it to the investigative agency to unearth the facts and ascertain the truth of the allegations. The Magistrate in terms of the ratio in Lalita Kumari’s case can for good reasons direct preliminary enquiry. [Para 22][164-F-H] 1.2. The operandi for registration of information in a cognizable offence and eventual investigation is not limited to Police, and sub-section (3) to Section 156, subject to legal stipulations, gives the ameliorating power to a Magistrate empowered under Section 190 to order an investigation in a cognizable offence. Two different powers vested with two distinct authorities, namely the Police and the Magistrate, who discharge distinct functions and roles under the Code as indicated above are not entirely imbricating. The power of Magistrate to direct investigation falls under two limbs of the Code: one is pre- cognizance stage under Section 156(3), and another on cognizance under Chapter XIV (‘Conditions Requisite for Initiation of Proceedings’; Sections 190-199) read with Chapter XV (‘Complaints to Magistrates’; Sections 200-210). These two powers are different and there also lies a procedural distinction between the two. [Para 23, 24][165-B-D] A B C D E F G H 137 1.3. The direction for registration of an FIR should not be issued in a routine manner. The Magistrate is required to apply his mind
Excerpt shown. Read the full judgment & AI analysis in Lexace.