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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bechu Kurian Thomas, J.
Thoufeeq – Petitioner
Versus
State Of Kerala Represented By Public Prosecutor And Ors. – Respondents
OP(CRL.) NO. 123 OF 2024
Decided On : 04-12-2024
(A) Code of Criminal Procedure, 1973 - Sections 202 and 156(3) - The question arises whether a Magistrate can direct registration of an FIR after commencing proceedings under section 202 - The court held that a Magistrate is not precluded from directing registration of an FIR even after initiating section 202 proceedings. (Paras 19-22)
(B) Legal Propositions - The court reaffirmed that the powers under section 156(3) can be exercised at the post-cognizance stage, clarifying the distinction between sections 202 and 156(3) regarding the timing of investigations. (Paras 12-18)
Facts of the case:
The petitioner challenged the discharge of the accused in a case involving allegations of forgery and cheating related to a partnership business. The Magistrate initially allowed the discharge based on a mistaken forwarding of the complaint for investigation.
Findings of Court:
The court found that the discharge was erroneous as the Magistrate had sufficient grounds to proceed with the case.
Issues: The main issue was whether the Magistrate could direct an FIR registration after taking cognizance.
Ratio Decidendi: The court ruled that the procedure adopted by the Magistrate was neither irregular nor illegal, allowing the FIR registration.
Result: The discharge order was set aside.
The legal decision clarifies that a Magistrate retains the authority to direct the registration of an FIR even after proceedings have been initiated under section 202 of the Cr.P.C. (!) (!) . The Court emphasizes that the powers under section 156(3) are applicable at the pre-cognizance stage, allowing for police investigation before the Magistrate takes cognizance. However, once cognizance has been taken and proceedings have begun under section 202, the Magistrate can still exercise the power to direct investigation under section 156(3), as this is permissible at the post-cognizance stage (!) (!) .
Furthermore, the Court highlights that the procedure adopted by the Magistrate in directing the registration of the FIR after initiating proceedings under section 202 was neither irregular nor illegal (!) (!) . The decision underscores that the restriction on Magistrates exercising powers under section 156(3) only applies at the pre-cognizance stage, and not after cognizance has been taken (!) (!) .
In conclusion, the Court set aside the orders discharging the accused under certain sections and clarified that a Magistrate can order FIR registration even after proceedings under section 202 have commenced, provided the legal framework and procedural requirements are satisfied (!) .
JUDGMENT :
BECHU KURIAN THOMAS, J.
The question that arises in this case is whether a Magistrate is precluded from directing registration of an FIR, despite the commencement of proceedings under section 202 of the Code of Criminal Procedure, 1973.
2. Petitioner challenges an order of discharge of the accused in C.C. No.473/2018 on the files of the Judicial First Class Magistrate's Court, Pattambi. Petitioner was the defacto complainant in Crime No.661/2017 of the Pattambi Police Station. The crime was registered alleging that the accused and the defacto complainant along with CWs 2 and 3 had started a partnership business by the name ‘M/s.Shalimar Granite’. During the period between 2010-2016, the accused allegedly forged the partnership deed and other documents for cheating the defacto complainant and others and fraudulently obtained property and subsequently submitted those documents to the authorities knowing that those are forged and thereby committed the offences under sections 406, 417, 465, 468 and 475 of the Indian Penal Code, 1860 (for short ‘IPC’). In a nutshell, the complainant alleged that the partnership deed contained a forged schedule, which was not part of the original deed and listed the private properties of the petitioner and that of his brother, who was not even a partner of the firm.
3. After the complaint was filed before the Judicial First Class Magistrate's Court, Pattambi, the learned Magistrate proceeded to conduct an enquiry under section 202 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') and called for a report from the Station House Officer. By communication dated 09.10.2017, the SHO stated that since the accused was not cooperating with the enquiry and as documents are required to be recovered, without the registration of a crime, the actual facts cannot be brought to light. On the basis of the aforesaid report, the learned Magistrate had initiated an enquiry under section 202 Cr.P.C, and issued an order under section 156(3) Cr.P.C on 02.01.2017 directing registration of a crime by forwarding the complaint to the SHO. Pursuant thereto, the police registered an F.I.R as Crime No.661/2017 of Pattambi Police Station and after completing the investigation, a final report was filed on 16.04.2018 alleging offences punishable under the sections mentioned earlier. After receipt of the final report, the learned Magistrate took cognizance of the offence as C.C. No.473/2018. After the accused entered appearance, he filed an application as CMP No.709/2020 for a discharge.
4. The learned Magistrate allowed the discharge application by Ext.P8 impugned order, after concluding that though the accused had committed the offences under sections 465, 416 and 471 IPC, the registration of the crime and consequent submission of the final report was based on a complaint which was mistakenly forwarded to the police for investigation. It was however observed that that the allegations regarding the offences under sections 406 and 417 IPC are groundless.
5. The order of discharge was challenged by the petitioner before the Sessions Court, Palakkad. However, by the impugned order dated 19.12.2023 in Crl.R.P No.23/2023, the learned Sessions Judge dismissed the said revision and affirmed the order of discharge. Petitioner challenges the aforesaid two orders.
6. Sri. Ranjith Thampan, the learned Senior Counsel instructed by Sri. V.M.Krishnakumar, the learned counsel for the petitioner contended that the order of discharge of the accused for the offences under sections 465, 468 and 471 of IPC is patently erroneous and is liable to be interfered with. According to the learned Senior Counsel, even after initiating proceedings under section 202 Cr.P.C, nothing prevented the learned Magistrate from referring the case under section 156(3) Cr.P.C. The learned Senior Counsel vehemently contended that the powers of the Magistrate to order investigation are not curtailed by the proceedings initiated under section 202 Cr.P.C. It was
A Magistrate can direct FIR registration even after commencing proceedings under section 202 Cr.P.C, clarifying the powers under sections 156(3) and 202.
The word “cognizance” has not been defined under Cr.P.C. To unveil the legal quandary, a brief survey of 'Cognizance' would illuminate everything, clearing all concepts, therefore, this Court is refe....
The court ruled that a Magistrate must exercise careful judicial discretion when considering an application under Section 156(3), ensuring each complaint is evaluated adequately before deciding on FI....
The Magistrate has discretion under Section 156(3) of the CrPC to determine whether to direct an investigation, particularly in civil disputes masquerading as criminal matters.
The judgment establishes the principle that once cognizance of offences is taken, the trial Magistrate cannot direct registration of an FIR and emphasizes the importance of adhering to the procedural....
A Magistrate cannot revert to the pre-cognizance stage after taking cognizance of a complaint, making the order to register an FIR legally untenable.
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