Saturday, 27 February 2016

Whether magistrate can direct investigating officer to add sections in FIR registered by him as direction of magistrate U/S 156 of CRPC?

 I   have   gone   through   the   said   judgment.     It   is   stated   in   the
judgment that the Magistrate directing registration of offence has impliedly
been empowered to take all necessary steps for proper investigation of the
case, which may include monitoring the same. 
7. After having gone through the said judgment and the  judgment
reported at AIR 2003 SC 2612 (Union of India  Vs. Prakash P. Hinduja) I
have come to the conclusion that the manner and the  method of conducting
investigation are left entirely  with the officer­ in­charge of the police station or
a subordinate officer deputed by him.  The Magistrate has got the very limited

role to play once a complaint/application is sent to police for investigation in
exercise of powers under Section 156(3) of the Code of Criminal Procedure.
The   formation   of   opinion   as   to   whether   there   is   sufficient   evidence   to
charge­sheet  or  otherwise  is  always   left  to the  Investigating  Officer.    The
Magistrate, of course, is not bound by the final report.  He may take his own
decision   after   receipt   of   final   report.     However,   till   the   investigation   is
completed and report under Section 173 of Code of Criminal Procedure   is
submitted, the Magistrate has no role to play in investigation of the complaint
referred  by him to the police. One may refer to paragraphs 13 and 14 of the
judgment of Hon’ble Supreme Court in the case of Union of India Vs. Prakash
P.   Hinduja   (supra)   in   support   of   the   view   expressed   by   me   hereinabove.
Paragraphs 13 and 14 of the judgment run as under:­
“13.  The     provisions   referred   to   above   occurring   in
Chapter XII of the Code show that detail and elaborate
provisions   have   been   made   for   securing   that   an
investigation takes place regarding an offence of which
information has been given and the same is done in
accordance with the provisions of the Code.  The manner
and the method of conducting the investigation are left
entirely to the officer­ in­charge of the police station or a
subordinate officer deputed by him.  A Magistrate has no
power to interfere with the same.  The formation of the
opinion   whether   there   is   sufficient   evidence   or
reasonable ground of suspicion to justify the forwarding
of the case to a Magistrate or not as contemplated by Ss.
169 and 170 is to be that of the officer­ in­charge of the

police station and a Magistrate has absolutely no role to
play at this stage.   Similarly, after completion of the
investigation while making a report to the Magistrate
under s. 173, the requisite details have to be submitted
by the officer ­in­charge of the police station without any
kind of interference or direction of   a Magistrate   and
this will include a report regarding the fact whether any
offence appears to have been committed and if so, by
whom, as provided by Cl. (d) of sub­section (2(i) of this
section.  These provisions will also be applicable in cases
under Prevention of Corruption Act, 1947 by virtue of S.
7­A thereof and Prevention of Corruption Act, 1988 by
virtue of S. 22 thereof. 
14.  The Magistrate is no doubt not bound to accept a
final   report   (sometimes   called   as   closer   report)
submitted by the police and if he feels that the evidence
and the material collected during investigation justifies
prosecution of the accused, he may not accept the final
report and take cognizance of the offence and summon
the accused but this does not mean that he would be
interfering with the investigation as such. He would be
doing so in exercise of powers conferred by S. 190, Cr.
P.C. The statutory provisions are, therefore, absolutely
clear   that   the   Court   cannot     interfere   with   the
investigation.”
       In addition to  what has been stated hereinabove, it may not be
forgotten   that   F.I.R.   is   not   encyclopedia   of   the   case.   The   F.I.R.   sets   the

investigating agency  into motion. The Investigating Officer is not prevented
from adding or deleting few more penal provisions, if during the course of
investigation, material collected warrants  such steps.  
 The petitioner has one more opportunity to agitate his point of
view.   That stage will come when the report under Section 173 of Code of
Criminal Procedure  is filed before the Court of Magistrate. 
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.588 OF 2012
Mr. Gajendra Puranrao Tayade,
                                              ..... Petitioner.
Versus
 State of Maharashtra 
                             CORAM : M.L. TAHALIYANI, J.
                                DATED  : JANUARY 29, 2013.
Citation: 2013ALLMR(Cri)1963

1. Heard learned counsel for the petitioner and learned counsel for
the respondents. 
2. Rule. Rule returnable forthwith by consent of the learned counsel
for the parties.  
3. The petitioner feels aggrieved by the order passed by the learned
Magistrate in  Misc. Criminal Case No. 178/2011  on 3rd October 2012, which
runs as under:­
“1]  The application below Exh.7 is hereby rejected.
 2]  As the complaint was sent for investigation u/s 
156(3) of Cr. PC. To PSO Khallar and PSO has 
registered FIR.  There is  no  any  proceeding is 
pending in this court to pass any order accordingly 
proceeding below Exh.1 is disposed of.”

4. This   order   was   passed   by   the   learned   Magistrate   below
applications (Exhibits 1 and 7).  The petitioner wanted the offences punishable
under Sections 3(1)(v), 3(1)(viii), 3(1) (ix), 3(2) (vii) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act 1989  to be added in the
F.I.R. registered by Police being F.I.R. No. M­1 dated 23rd November 2011.  The
said F.I.R. was registered pursuant to the order passed by learned Magistrate in
a Miscellaneous case under Section 156(3) of the  Code of Criminal Procedure
on 9th September 2011.  By the said order, the complaint filed by the petitioner
against respondent nos. 3 to 61 was referred to the police for investigation and
report under Section 173 of the Code of Criminal Procedure.  As already stated
above,   F.I.R. had   been registered by police.   However,   the police did not
register the offences punishable under the provisions of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act 1989.   The petitioner
wanted these sections to be added in the F.I.R. Learned Magistrate refused to
do so on the ground that he has no power to interfere with the investigation of
the F.I.R. already registered by the police. 
5. Mr. Mirza, learned counsel appearing  on behalf of the petitioner
has   submitted   that   the   application   of  the   petitioner   could   not   have   been
disposed of by the Magistrate  by refusing to exercise jurisdiction only because
the police have already started investigation.  It is submitted by Mr. Mirza that
despite registration of offence and pendency of investigation, the Magistrate
can exercise his jurisdiction over the case and direct further investigation or
re­investigation in any matter referred to the  police under Section 156(3) of

Code of Criminal Procedure.  He has relied upon  the Full Bench judgment of
this Court in the matter of Mr. Panchabhai Popotbhai Butani and Ors. Vs.
The State of Maharashtra reported at  2010 (1) Mh.L.J. 421.  Para 24 of the
said judgment runs as under:­
“In view of the abovementioned legal position, we are of
the view that although Section 156(3) is very briefly
worded,   there   is   an   implied   power   in   the   Magistrate
under Section 156(3) CrPC to order registration of a
criminal offence and/or to direct the officer in charge of
the   police   station   concerned   to   hold   a   proper
investigation and take all such necessary steps that may
be   necessary   for   ensuring   a   proper   investigation
including   monitoring   the   same.     Even   though   these
powers  have   not   been  expressly   mentioned   in   Section
156(3)   CrPC,   we   are     of   the   opinion   that   they   are
implied in the above provision.”
6. I   have   gone   through   the   said   judgment.     It   is   stated   in   the
judgment that the Magistrate directing registration of offence has impliedly
been empowered to take all necessary steps for proper investigation of the
case, which may include monitoring the same. 
7. After having gone through the said judgment and the  judgment
reported at AIR 2003 SC 2612 (Union of India  Vs. Prakash P. Hinduja) I
have come to the conclusion that the manner and the  method of conducting
investigation are left entirely  with the officer­ in­charge of the police station or
a subordinate officer deputed by him.  The Magistrate has got the very limited

role to play once a complaint/application is sent to police for investigation in
exercise of powers under Section 156(3) of the Code of Criminal Procedure.
The   formation   of   opinion   as   to   whether   there   is   sufficient   evidence   to
charge­sheet  or  otherwise  is  always   left  to the  Investigating  Officer.    The
Magistrate, of course, is not bound by the final report.  He may take his own
decision   after   receipt   of   final   report.     However,   till   the   investigation   is
completed and report under Section 173 of Code of Criminal Procedure   is
submitted, the Magistrate has no role to play in investigation of the complaint
referred  by him to the police. One may refer to paragraphs 13 and 14 of the
judgment of Hon’ble Supreme Court in the case of Union of India Vs. Prakash
P.   Hinduja   (supra)   in   support   of   the   view   expressed   by   me   hereinabove.
Paragraphs 13 and 14 of the judgment run as under:­
“13.  The     provisions   referred   to   above   occurring   in
Chapter XII of the Code show that detail and elaborate
provisions   have   been   made   for   securing   that   an
investigation takes place regarding an offence of which
information has been given and the same is done in
accordance with the provisions of the Code.  The manner
and the method of conducting the investigation are left
entirely to the officer­ in­charge of the police station or a
subordinate officer deputed by him.  A Magistrate has no
power to interfere with the same.  The formation of the
opinion   whether   there   is   sufficient   evidence   or
reasonable ground of suspicion to justify the forwarding
of the case to a Magistrate or not as contemplated by Ss.
169 and 170 is to be that of the officer­ in­charge of the

police station and a Magistrate has absolutely no role to
play at this stage.   Similarly, after completion of the
investigation while making a report to the Magistrate
under s. 173, the requisite details have to be submitted
by the officer ­in­charge of the police station without any
kind of interference or direction of   a Magistrate   and
this will include a report regarding the fact whether any
offence appears to have been committed and if so, by
whom, as provided by Cl. (d) of sub­section (2(i) of this
section.  These provisions will also be applicable in cases
under Prevention of Corruption Act, 1947 by virtue of S.
7­A thereof and Prevention of Corruption Act, 1988 by
virtue of S. 22 thereof. 
14.  The Magistrate is no doubt not bound to accept a
final   report   (sometimes   called   as   closer   report)
submitted by the police and if he feels that the evidence
and the material collected during investigation justifies
prosecution of the accused, he may not accept the final
report and take cognizance of the offence and summon
the accused but this does not mean that he would be
interfering with the investigation as such. He would be
doing so in exercise of powers conferred by S. 190, Cr.
P.C. The statutory provisions are, therefore, absolutely
clear   that   the   Court   cannot     interfere   with   the
investigation.”
8.                In addition to  what has been stated hereinabove, it may not be
forgotten   that   F.I.R.   is   not   encyclopedia   of   the   case.   The   F.I.R.   sets   the

investigating agency  into motion. The Investigating Officer is not prevented
from adding or deleting few more penal provisions, if during the course of
investigation, material collected warrants  such steps.  
9. The petitioner has one more opportunity to agitate his point of
view.   That stage will come when the report under Section 173 of Code of
Criminal Procedure  is filed before the Court of Magistrate. 
10. For all these reasons, I do not find any substance in the petition.
It   deserves   to   be   dismissed   and   is   accordingly   dismissed.   Rule   stands
discharged. 

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