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Ways to Initiate “Prosecution” under Code of Criminal Procedure !! Drafted by Advocate Nishant Mehrotra

Drafted by Advocate Nishant Mehrotra

Section 190(1) CrPC broadly provides that any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf, may take cognizance of any offence-

(A) upon a police report of such facts under section 173 CrPC;

(B) upon receiving a complaint of facts which constitute such offence.

ELABORATING THE SAID TWO POINTS IN DETAIL:

A) Cognizance of an offence upon a police report of such facts under section 173 CrPC

A police report under section 173 CrPC when an information of cognizable offence is given to police under section 154 CrPC or that of a noncognizable offence is given under section 155 CrPC.

  1. Information of cognizable offence is given to police under section 154 CrPC, at FIR

Section 154 CrPC provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

In the case of T.T.Antony vs. State of Kerala & Ors, Supreme Court held that:

_“ Information given under sub-section (1) of Section 154 of Cr.P.C., is commonly known as the First Information Report (FIR), though this term is not used in the Code….And as it’s nick name suggests, it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station”._

In another case, Supreme Court held that:

_“After all registration of FIR involves only the process of entering the substance of the information relating to the Commission of a cognizable offence in a book kept by the officer in charge…as indicated in Sec. 154 of the Code”._

  1. Information of noncognizable offence is given to police under section 155 CrPC, at NCR:_

Section 155(1) CrPC provides that when information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.

However, subsection (2) specifically provides that no police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Hence, in order to investigate a noncognizable offence, an order from the said concerned magistrate is required by the police officer permitting him to investigate.

However, police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

  1. Section 156(3) CrPC

Section 156 CrPC :: 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.

Power of Magistrate under section 156 (3) CrPC has been evaluated and interpreted by various Courts, and it has been held that under section 156 (3) CrPC, Magistrate can direct the concerned police station to lodge FIR u/s 154 CrPC and then carry on the investigation. An application in this regard can be filed before the Magistrate under section 156 (3) CrPC.

(B) Cognizance of any offence upon receiving a complaint of facts which constitute such offence, at Criminal Complaint:

  1. Criminal Complaint filed before Magistrate:

As per section 190 CrPC, the Magistrate is empowered to take cognizance of an offence in three ways provided therein. However, if he chooses to take cognizance on the basis of a complaint then to investigate and decide upon the matter further, he is bound to follow the provisions laid down by Sec. 200 to Sec. 203 of the Cr.P.C. and if the case demands, also under Sec. 204.

When a Magistrate takes cognizance of an offence (upon receipt of a complaint or otherwise), he examines the complaint in accordance with Section 200 CrPC by examining the facts and the witnesses. If he finds that the complaint is with merits, the case is deemed committed for trial and the magistrate issues the process under Section 204 CrPC. If the offence is exclusively triable by Court of Session, the Magistrate commits the case to Court of Session under Section 209 CrPC.

If he finds that the complaint is without merits, he can reject it under section 203 CrPC.

  1. Application under under section 156 (3) CrPC can be treated as a criminal complaint:

 As per various case laws, it has been held that the Magistrate, where he seems fit, can treat an application under section 156 (3) CrPC as a criminal complaint and proceed as per sections 200 to 203 CrPC.

  1. Protect Petition can be treated as a criminal complaint

After a FIR or NCR is lodged and police investigates the case. After investigation is completed, the police files a report u/S 173 (8) CrPC. If the said report states that a prima facie case is made out, it is called a “chargesheet”, and if it states that no prima facie case is made out, it is called a “final report”.

Supreme Court has held that, “before accepting the final report given by police, the informant/complainant has to be issued a notice and he can file a protest petition against the final report. Where the Magistrate deems fit, he can treat the protest petition as a criminal complaint and proceed as per sections 200 to 203 CrPC.”

All the said proceedings finally come and merge at section 204 CrPC, under which the Magistrate takes cognizance of the case and issues process to the accused.

ABOUT THE AUTHOR                                                                                                                   This article is drafted by Advocate Nishant Mehrotra. He practises at Allahabad High Court, NCLT, CAT and DRT at Allahabad. He can be reached either at legal.icon.2006@gmail.com or +91-9415235966.

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