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The interesting question that arose in the case of Naman Singh v. State of U.P., (2019) 2 SCC 344 : (2019) 1 SCC (Cri) 737 : 2018 SCC OnLine SC 2805 at page 345 was whether an Executive Magistrate was empowered under Section 156(3) Cr.P.C. to issue a direction the police for the registration of an FIR.
Section 156 of Criminal Procedure Code, Explained
Section 156 Code of Criminal Procedure, 1973 is extracted hereunder for easy reference:
Section 156 in The Code Of Criminal Procedure, 1973
156. Police officer’ s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.Section 156 in The Code Of Criminal Procedure, 1973
The provision provides for the power of police officer to investigate into a cognizable offence.
Sub clause 1 of Section 156 provides that any police officer may investigate into an offence without the order of the Magistrate. Sub clause 2 of Section 156 provides that the investigation/proceeding so conducted shall not be questioned for the reason that the police officer investigating the case is not empowered to investigate. And importantly, under the Sub clause 3 of Section 156, a Magistrate empowered under Section 190 can order an investigation. Such an Order by a Magistrate is a direction to a police-officer to investigate into a cognizable offence.
Section 190 Criminal Procedure Code, 1973 explained
Section 190 Code of Criminal Procedure, 1973 is extracted for easy reference:
190. Cognizance of offences by Magistrates.— (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.Section 190 Code of Criminal Procedure, 1973
Section 190 Code of Criminal Procedure provides for taking Cognizance by a Magistrate. It is pertinent to note that an Executive Magistrate is not empowered under Section 190 of the Code of Criminal Procedure, 1973 and only a Judicial Magistrate is empowered under the said provision.
Extract from Naman Singh v. State of U.P.
In the case of Naman Singh v. State of U.P., the order for registration of FIR was passed by an Executive Magistrate. The Supreme Court quashing the FIR, held as follows:
5. 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 the 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.
6. 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 FIR. 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.
7. 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 FIR 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 FIR himself in the matter. In such a case, entirely different considerations would arise. A reading of the FIR reveals that the police has registered the FIR on directions of the Sub-Divisional Magistrate which was clearly impermissible in law. The Sub-Divisional Magistrate does not exercise powers under Section 156(3) of the Code. The very institution of the FIR in the manner done is contrary to the law and without jurisdiction.
8. Nothing prevented Respondent 4 from lodging an FIR herself before the police under Section 154 of the Code or proceeding under Section 154(3) if circumstances so warranted. Alternately the respondent could have moved the Magistrate concerned under Section 156(3) of the Code in the event of the refusal of the police to act. Remedy was also available to the respondent by filing a complaint under Section 200 of the Code before the jurisdictional Magistrate.
9. In view of the scheme of the Code as discussed, we have purposely refrained from going into the merits of the case so as not to prejudice either parties and also keeping in mind the nature of the jurisdiction under Section 482 of the Code. Any application by Respondent 4 hitherto under the Code will therefore have to be considered by the appropriate authority or forum in accordance with law. For the reasons discussed, the impugned order [Naman Singh v. State of U.P., 2018 SCC OnLine All 3160] is held to be unsustainable and is set aside. The first information report therefore also stands quashed for the reasons discussed, but with liberty as aforesaid.Naman Singh v. State of U.P., (2019) 2 SCC 344 : (2019) 1 SCC (Cri) 737 : 2018 SCC OnLine SC 2805 at page 345
Thus it can be seen that order for registration of an FIR cannot be passed by an Executive Magistrate and only a Judicial Magistrate is empowered to give a direction to the police for registering an FIR.