Tuesday, 13 September 2016

Whether police should register offence against accused if magistrate directs investigation U/S 156 of CRPC?

 But
we would like to only indicate in brief the law on

this subject expressly stated by this Court in the
case of Mohd. Yousuf versus Afaq Jahan (Smt.) and
another, (2006) 1 SCC 627. This Court explained that
registration of an F.I.R. involves only the process
of recording the substance of information relating to
commission of any cognizable offence in a book kept
by the officer incharge of the concerned police
station. In paragraph 11 of the aforementioned case,
the law was further elucidated by pointing out that
to enable the police to start investigation, it is
open to the Magistrate to direct the police to
register an F.I.R. and even where a Magistrate does
not do so in explicit words but directs for
investigation under Section 156(3) of the Code, the
police should register an F.I.R. Because Section 156
falls within chapter XII of the Code which deals with
powers of the police officers to investigate
cognizable offences, the police officer concerned
would always be in a better position to take further
steps contemplated in Chapter XII once F.I.R. is
registered in respect of the concerned cognizable
offence.
REPORTABLE
 IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 110 OF 2016
(Arising out of Special Leave Petition(Crl.) No. 3251 of 2012)
HAMANT YASHWANT DHAGE 
 Versus
STATE OF MAHARASHTRA AND OTHERS 
Dated:February 10, 2016
Citation:(2016) 6 SCC273


1. We have heard learned counsel for the parties at
some length.
2. Leave granted.
3. Though the matter has remained pending for long,
fortunately the core issue involved for our
consideration is a very simple one.
4. The appellant was respondent in two Criminal
Appeals bearing Numbers 766 and 767 of 2010 arising
out of a common judgment of the High Court of Bombay
dated September 8, 2009 in CRL.W.P. No. 2482 of 2008.
5. This Court disposed of both the appeals vide
order dated April 12, 2010. It did not approve the
action of High Court in entertaining writ petitions

for change of investigating officer. The relevant
parts of that order read as follows :-
“We are of the opinion that if the High
Courts entertain such writ petitions,
then they will be flooded with such writ
petitions and will not be able to do any
other work except dealing with such writ
petitions. Hence, we have held that the
complainant must avail of his alternate
remedy to approach the concerned
Magistrate under Section 156(3), Cr.P.C.
and if he does so, the Magistrate will
ensure, if prima facie he is satisfied,
registration of the first information
report and also ensure a proper
investigation in the matter, and he can
also monitor the investigation.
In view of the settled position in Sakiri
Vasu's (supra), the impugned judgment of
the High Court cannot be sustained and is
hereby set aside. The concerned
Magistrate is directed to ensure proper
investigation into the alleged offence
under Section 156(3), Cr.P.C. and if he
deems it necessary he can also recommend
to the S.S.P./S.P. concerned change of
the investigation officer, so that a
proper investigation is done. The
Magistrate can also monitor the
investigation, though he cannot himself
investigate (as investigation is the job
of the police. Parties may produce any
material they wish before the concerned
Magistrate. The learned Magistrate shall
be uninfluenced by any observation in the
impugned order of the High court.
The appeals are allowed in the above
terms.
In view of the aforesaid order, no orders
need be passed on the application for
intervention and it is disposed of
accordingly.”
6. The appellant, in the capacity of complainant,
approached the learned Judicial Magistrate F.C. Court

No.2, Pune who took notice of this Court's order and
issued several directions in RCC No. 0402459/2008 as
is evident from its order dated February 17, 2011,
including relevant directions to the investigating
officer. But unfortunately the learned Judicial
Magistrate came to a wrong conclusion that in the
absence of any specific direction of this Court, the
prayer of the complainant for registration of F.I.R.
had to be rejected. The complainant then approached
the High Court of Bombay through Criminal Writ
Petition No. 3009 of 2011 which was disposed of by
the impugned order dated February 13, 2012. The High
Court declined to issue a direction for registering
an F.I.R. by taking the view that it was open for the
petitioner to seek clarification/modification of the
order from the apex Court.
7. Mr. Ram Jethmalani, learned senior counsel
appearing on behalf of the appellant argued with
vigor that investigation into a serious case has been
unnecessarily delayed at the instance of vested
interests and hence this Court should now take a
strong view and in the light of earlier order dated
April 12, 2010, the police should be directed to
treat the pending case as a police case in view of
implications arising from Section 156(3) of the
Criminal Procedure Code (in short 'the Code'). He
further submitted that without wasting much time, the

police should conduct a thorough investigation and
complete the same within a reasonable time period
such as six months and submit its final views to the
learned Magistrate through a proper report.
8. Mr. P. Chidambaram, learned senior counsel
appearing for private respondents did not oppose the
aforesaid prayer. In fact, according to his
submissions, the police could be asked to complete
the investigation even in a shorter span of time and
submit its final views to the Magistrate without
wasting time on the formality of registration of
F.I.R.
9. Mr. Arvind Sawant, learned senior counsel
appearing on behalf of the State of Maharashtra has
drawn our attention to copies of various reports
submitted by the investigating officer. He expressed
his concurrence with the view that police may be
directed to submit its final opinion in the matter
through an appropriate report within a reasonable
time.
10. In view of the aforesaid broad consensus amongst
the counsel for the various parties, it is not
necessary for us to go deeper into the relevant issue
of law as to whether the earlier order of this Court
dated April 12,2010 warranted registering of F.I.R.
by the police before commencing investigation. But
we would like to only indicate in brief the law on

this subject expressly stated by this Court in the
case of Mohd. Yousuf versus Afaq Jahan (Smt.) and
another, (2006) 1 SCC 627. This Court explained that
registration of an F.I.R. involves only the process
of recording the substance of information relating to
commission of any cognizable offence in a book kept
by the officer incharge of the concerned police
station. In paragraph 11 of the aforementioned case,
the law was further elucidated by pointing out that
to enable the police to start investigation, it is
open to the Magistrate to direct the police to
register an F.I.R. and even where a Magistrate does
not do so in explicit words but directs for
investigation under Section 156(3) of the Code, the
police should register an F.I.R. Because Section 156
falls within chapter XII of the Code which deals with
powers of the police officers to investigate
cognizable offences, the police officer concerned
would always be in a better position to take further
steps contemplated in Chapter XII once F.I.R. is
registered in respect of the concerned cognizable
offence.
11. In our considered view, the same was the import
of this Court's order passed on April 12, 2010. In
the light of the said earlier order; the legal
position noticed above and the stand of the parties,
we have no difficulty in directing the concerned

Magistrate and the police officer to rectify their
mistake by ensuring registration of an appropriate
F.I.R. The delay in lodging of such F.I.R. occurring
after April 12, 2010 shall not have any effect on the
investigation already carried out by the
investigating officer(s). We also direct the
police to complete the investigation fairly and in
accordance with law at an early date, preferably
within six months. On receipt of appropriate report
from the police on conclusion of investigation, the
learned Magistrate will deal with the matter strictly
in accordance with law on the basis of materials
available on record without being influenced by
orders passed by different Courts.
12. The appeal is allowed to the aforesaid extent.


.......................J.
 (M.Y. EQBAL)
 .......................J.
 (SHIVA KIRTI SINGH)
New Delhi,
February 10, 2016

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