1. Criminal prosecution for cheating and forgery — FIR registered on directions of a Sub-Divisional Magistrate following a private complaint. (Para 2 , 5 )
Back
Next 
2018 Supreme(SC) 1249
SUPREME COURT OF INDIA
R.F. NARIMAN, NAVIN SINHA, JJ.
NAMAN SINGH ALIAS NAMAN PRATAP SINGH AND ANOTHER – APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH AND OTHERS – RESPONDENT(S)
CRIMINAL APPEAL NO. 1620 OF 2018 (arising out of S.L.P.(Crl.) No.3383 of 2018)
Decided On : 13-12-2018
Important Points
IMPORTANT POINT
Direction by Executive Magistrate to police to register FIR is without jurisdiction.
Direction by Executive Magistrate to police to register FIR is without jurisdiction.
Subject
Criminal Law - Quashing of FIR
Act Referred
Headnote
Code of Criminal Procedure, 1973 – Section 154, 190 – Executive Magistrate directing police to register FIR on basis of private complaint – Held without jurisdiction. (Para 8)
Code of Criminal Procedure, 1973 – Section 482 – Criminal proceeding initiated on basis of FIR lodged on direction form Executive Magistrate – Direction being without jurisdiction, application u/s 482 ought to be allowed – FIR quashed. (Para 10)
Facts of the case:
The appellants are aggrieved by the denial to quash the criminal prosecution initiated against them under Sections 420, 406, 467, 468, 471, 504, 506, 34 IPC on the allegation that appellants by misrepresentation and cheating have persuaded respondent no.4 and others to take admission in an unrecognised institution.
Finding of the Court:
Application u/s 482 should have been allowed.
Result: Appeal allowed.
Legal Category Hierarchy
Advocates Appeared:
For the Appellant : Mr. Shekhar Prit Jha, Mr. P.K. Sinha, Advs.
For the Respondent: Mr. Birendra Singh, Ms. Shashi Kiran, Mr. Satish Chandra, Mr. Manoj Jain, Mrs. Swarupama Chaturvedi, Advs.
For the Appellant : Mr. Shekhar Prit Jha, Mr. P.K. Sinha, Advs.
For the Respondent: Mr. Birendra Singh, Ms. Shashi Kiran, Mr. Satish Chandra, Mr. Manoj Jain, Mrs. Swarupama Chaturvedi, Advs.
Table of Contents
2. Appellants deny fraudulent misrepresentation; respondents allege cheating and argue that the defense cannot be examined in a quashing application. (Para 3 , 4 )
3. An Executive Magistrate lacks jurisdiction to direct the police to register an FIR on a private complaint, as such powers are not provided under Section 156(3). (Para 5 , 6 , 7 , 8 )
4. An Executive Magistrate is not competent to direct the registration of an FIR based on a private complaint under the Code of Criminal Procedure. (Para 8 )
5. Appeal allowed — impugned order set aside and FIR quashed, with liberty granted to the respondent to pursue appropriate legal remedies. (Para 10 , 11 )
6. Can a Sub-Divisional Magistrate (Executive Magistrate) direct the police to register an FIR based on a private complaint?
No. Under the Code of Criminal Procedure, an Executive Magistrate has no role in directing the police to register an FIR based on a private complaint, as they do not exercise powers under Section 156(3). (Para 8 )
7. What are the legal avenues for an informant if the police refuse to register an FIR?
The informant may send the information in writing to the Superintendent of Police under Section 154(3), move the jurisdictional Magistrate under Section 156(3) for an investigation order, or file a complaint under Section 200. (Para 6 , 7 , 9 )
8. Under what circumstances can an Executive Magistrate lodge an FIR?
If a complaint is lodged regarding an issue over which the Executive Magistrate has administrative jurisdiction and they proceed to hold an administrative inquiry, they may lodge an FIR themselves. (Para 8 )
ORDER
NAVIN SINHA, J.
Leave granted.
2. The appellants are aggrieved by the denial to quash the criminal prosecution against them under Sections 420, 406, 467, 468, 471, 504, 506, 34 IPC in F.I.R. No.22/2018 dated 31.01.2018.
3. Learned counsel for the appellants submits that no objection certificate has been obtained from the Chatrapati Sahuji Maharaj University, Kanpur for establishment of the three-year Law course. Affiliation has also been granted by the University. The appellants have also deposited a sum of Rs.3,50,000/with the Bar Council of India and await permission from it for starting the law course. The question of any fraudulent misrepresentation by the appellants, persuading students to take admission in an unauthorised institution simply does not arise. Several students have taken admission in full awareness of the existent facts with no grievances and have sworn affidavits to that effect.
4. Learned counsel for the respondents submits that the appellants by misrepresentation and cheating have persuaded respondent no.4 and others to take admission in an unrecognised institution. There are several students who are aggrieved. In any event, such enquiries cannot be held in a quashing application by examining the defence of the appellants. The impugned order merits no interference.
5. We have considered the submissions on behalf of the parties and are satisfied that the application deserves to be allowed, though on different grounds. Respondent no.4 lodged a complaint with the Sub-Divisional Magistrate, Unnao on 31.01.2018 that she had been duped into taking admission in an un-recognised institution. The Sub-Divisional Magistrate, the very same day, without furthermore, directed the police to register a first information report. The only question for our consideration is whether the Sub-Divisional Magistrate was competent to do so, and whether such an F.I.R. can be said to have been registered in accordance with the Code of Criminal Procedure,1973 (hereinafter referred to as ‘the Code’).
6. Section 154 of the Code provides for registration of a first information report at the instance of an informant, reduced into writing and signed by the person giving it. Section 154(3) stipulates that in the event of a refusal on part of an officer in charge of a police station to record such information, it may be sent in writing and by post to the Superintendent of Police who will direct investigation into the same.
7. Section 190 of the Code provides for taking of cognizance by a Magistrate either on a complaint or upon a police report. Similarly, Section 156(3) provides that any Magistrate empowered under Section 190 may order such an investigation, and which also includes the power to direct the lodgement of an F.I.R. The Code in Section 200 provides for lodging of a complaint before the Magistrate, who after examination of the complainant and witnesses, if any, can take cognizance.
8. It is therefore apparent that in the scheme of the Code, an Executive Magistrate has no role to play in directing the police to register an F.I.R. on basis of a private complaint lodged before him. If a complaint is lodged before the Executive Magistrate regarding an issue over which he has administrative jurisdiction, and the Magistrate proceeds to hold an administrative inquiry, it may be possible for him to lodge an F.I.R. himself in the matter. In such a case, entirely different considerations would arise. A reading of the F.I.R. reveals that the police has registered the F.I.R on directions of the Sub-Divisional Magistrate which was clearly impermissible in the law. The Sub-Divisional Magistrate does not exercise powers under Section 156(3) of the Code. The very institution of the F.I.R. in the manner done is contrary to the law and without jurisdiction.
9. Nothing prevented respondent no.4 from lodging an F.I.R. herself before the police under Section 154 of the Code or proceeding under Section 154(3) if circumstances so warranted. Alter
