2023 Supreme(SC) 472

SUPREME COURT OF INDIA
M.R. SHAH, SANJIV KHANNA, JJ.
Kailash Vijayvargiya – Appellant
Versus
Rajlakshmi Chaudhuri and others – Respondents
Criminal Appeal Nos. 1581, 1582 & 1583 of 2021
Decided On : 04-05-2023

IMPORTANT POINTS
(1) While registration of FIR is mandatory, arrest of accused on registration of FIR is not.
(2) Once Magistrate has taken cognizance under Section 190 of Code, he cannot ask for investigation by Police.
(3) When an offence is disclosed, court will not normally interfere into investigation, however, if materials do not disclose offence, no investigation can be permitted.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 154 – FIR – Every cognizable offence must be promptly investigated in accordance with the law – There is no reason that there should be any discretion or option left with Police to register or not to register FIR when information is given about commission of a cognizable offence – To strike a balance, distinction is drawn between power of arrest of an accused person under Section 41 and registration of an FIR under Section 154 of Code – While registration of FIR is mandatory, arrest of accused on registration of FIR is not – FIR is registered on the basis of information without any qualification like credible, reasonable or true information – Reasonableness or credibility of information is not a condition precedent for registration of FIR – Police officer is not liable to launch investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence – Magistrate is kept in picture at all stages of investigation, but he is not authorised to interfere with actual investigation or to direct Police how investigation should be conducted. (Paras 14, 15 and 16)

(B) Criminal Procedure Code, 1973 – Sections 156(3), 190 and 202 – Direction for Police investigation – When Magistrate is satisfied that allegations made disclose commission of a cognizable offence, he must stay his hands, direct registration of FIR and leave it to investigative agency to unearth facts and ascertain truth of allegations – Magistrate has power, when a written complaint is made, to issue direction under Section 156(3), but this power is to be exercised before Magistrate takes cognizance of offence under Section 190 – However, once Magistrate has taken cognizance under Section 190 of Code, he cannot ask for investigation by Police – Magistrate also has power to take cognizance and take recourse to procedure under Section 202 of Code and postpone issue of process where Magistrate is yet to determine existence of sufficient ground to proceed – In a third category of cases, Court may not take cognizance or direct registration of FIR but direct preliminary inquiry – Every criminal case is a voyage of discovery in which truth is quest – Discovery, vindication and establishment of truth are primary purposes underlying existence of courts of justice – However, supremacy of truth is easier to assert than to define – When a Magistrate chooses not to proceed under Section 156(3), he cannot simply dismiss complaint if he finds that resorting to Section 156(3) is not advisable. (Paras 22,25, 27 and 36)

(C) Constitution of India – Article 21 – Right to life and personal liberty – Article 21 of Constitution protects lives and personal liberties of both victim and those accused of having committed an offence – Procedure established by law should be construed in the manner that text of statute ensures right to seek investigation to redress injustice and uncover crime by recourse to expeditious, fair and impartial procedure – Concomitantly, law in application should protect blameless against those informants who levels false allegations and abuse law causing distress, humiliation and damage to reputation. (Para 9)

(D) Criminal Procedure Code, 1973 – Section 173 – Crime investigation – Once offence is disclosed, investigation into offence must necessarily follow in interest of justice – Investigation is required for the purpose of gathering necessary materials for establishing or proving offence which is disclosed – Absence of proper investigation where offence is disclosed, offender may succeed in escaping from consequences which would be detrimental to cause of justice and society at large – Whether offence is disclosed or not must necessarily depend on facts and circumstances of each case – It depends upon consideration of relevant material – When an offence is disclosed, court will not normally interfere into investigation, however, if materials do not disclose offence, no investigation can be permitted. (Para 20)

Facts of the case:

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.10.2021 passed by the High Court of Calcutta in Criminal Revision Application No. 92/2021, by which High Court has allowed the said revision application preferred by respondent no.1 herein – original complainant (victim) and has quashed and set aside order dated 12.11.2020 passed by Chief Judicial Magistrate, Alipore rejecting petition filed by respondent no.1 herein – original complainant under Section 156(3) of the Code of Criminal Procedure,1973 original respondent nos. 2 to 4 (alleged accused) have preferred present appeals.

Findings of Court:

While affirming impugned judgment and order passed by High Court remanding the matter back to Magistrate, we set aside subsequent order passed by Magistrate on remand, pursuant to the impugned judgment and order passed by High Court and remit the matter back to Magistrate to examine and apply his judicial mind and then exercise discretion whether or not to issue directions under Section 156(3) or whether he can take cognizance and follow the procedure under Section 202. He can also direct the preliminary enquiry by Police.

Result : Appeals disposed of with directions and observations.