Order under Section 156(3) Cr.P.C, vs 202(1)(a) Cr.P.C

Sirs, Namashkaram / Vanakkam. I request your help and guidance in the following matter. 1. A Scheduled Caste member filed a private complaint in a Magistrate’s Court under Section 200 Cr.P.C. & section 190(1)(a) Cr.P.C. 2. His prayer was to forward the complaint to the concerned police under Section 156(3) Cr.P.C. to Register the case under two clauses of Section 3(1) and one clause of Section 3(2) of the SC/ST (Prevention of Atrocities) Act 1989 and investigate under Section 4 of the SC/ST (POA) Act 1989. 3. The Magistrate passed the order under Section 156(3) Cr.P.C. and directed the police to register the FIR and submit the investigation report. The Magistrate forwarded the FIR of the Scheduled Caste member to the police 4. The Legal Advisor to the police has also given a clear legal opinion that all the offences in the complaint of the Scheduled Caste member attract the SC/ST(POA) Act 1989. 5. The police raised the question of law that Section 202(1)(a) Cr.P.C., bars the Magistrate to direct police investigation since the offences are triable exclusively by the Court of Sessions. The police therefore informed the Magistrate that the investigation cannot be carried out as directed by the Magistrate. 6. The police also returned the original FIR to the Magistrate without registration. 7. While returning the original FIR itself to the Magistrate 20 months ago, the police also requested the Magistrate to give further necessary direction. The Magistrate has not given further direction to the police till date 8. The Madras High Court in one M/s Vetri Medical Agency’s case (Crl. O.P. No. 31086 of 2013), gave the judgment to the effect that “Under Section 156(3) Cr.P.C., the learned magistrate can direct the police to undertake investigation. It becomes a police case. It is an instance of a private case becoming a police case. Actually a direction under Section 156(3) Cr.P.C., is a reminder to the police to do their job enjoined upon them under Section 156(1) Cr.P.C. The condition precedent to do so is registration of FIR. The said power of the learned Magistrate under Section 156(3) Cr.P.C., is analogous to the power of the Superintendent of Police under Section 154(3) Cr.P.C.” 9. The real purpose of the Scheduled Caste member in making the prayer to forward the complaint under Section 156(3) Cr.P.C. was that the case must be registered as a police case instead of as a private case. 10. The Supreme Court ruled in “Devarapalli Lakshminarayana Reddy & Others vs Narayana Reddy & Others { (1976) 3 SCC 252}”: that “the power to order police investigation under Section 156(3) (Cr.P.C) is different from the power to direct investigation conferred by Section 202(1) (CrPC). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) (Cr.PC) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a) (Cr.PC). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3) (Cr.PC).” 11. The Magistrate has not taken cognizance of the offence till date. 12. Section 154 Cr.P.C., makes it as a compulsory duty of the police to register the FIR on complaints disclosing cognizable offences. 13. Section 4(2)(b) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance 2014 also states that the police shall register the FIR and Section 4(2)(e) of the said Ordinance states the police must complete the investigation within 60 days. 14. The Supreme Court in Lalita Kumari’s case (Writ Petition (Criminal) No. 68 of 2008) and the Madras High Court in M/s Vetri Medical Agency’s case and in various other Crl.O.Ps., further ruled that the police must register the FIR on complaints disclosing cognizable offences before embarking upon the enquiry. 15. The Supreme Court held in “Dharmeshbhai Vasudevbhai & Others vs State of Gujarat & Others (Criminal Appeal No. 914 of 2009, arising out of SLP (Crl) No. 3813 of 2005)”, that “the learned Magistrate did not have any jurisdiction to recall the order passed under Section 156(3) Cr.P.C.” 16. The Magistrate with the intention to recall the order passed under Section 156(3) Cr.P.C. by default, much against the above judgment of Supreme Court insists that the Scheduled Caste complainant must give the ‘statement on oath’ under Section 200 Cr.P.C. 17. It was submitted to the Magistrate that the police must register the FIR as a police case as ruled by the Supreme Court in ‘Lalita Kumari’s case’ and by Madras High Court in M/s Vetri Medical Agency’s case. 18. The Magistrate did not agree to the above submission but insists the Scheduled Caste complainant to give ‘statement on oath’. 19. The Petition submitted to the Magistrate under Section 395(2) Cr.P.C., to seek the decision of the High Court on the question of law raised by the police under Section 202(1)(a) Cr.P.C., was also returned by the Magistrate. 20. The petition submitted by the Scheduled Caste complainant to the Magistrate to register the case against the police under Section 4 of the SC/ST (P0A) Act 1989 was also refused and returned by the Magistrate. 21. In the above circumstances, your considered opinion is kindly sought on the following points:- 21.1. Is the question of law raised by the police “that Section 202(1)(a) Cr.P.C., bars the Magistrate to order police under Section 156(3) Cr.P.C., to register the FIR and investigate the offences committed under the SC/ST (POA)Act 1989”, a correct view of law?. 21.2. Is the action of the police returning the original FIR itself to the Magistrate without registering the FIR, correct on the part of the police?. 21.3. Has not the police committed the contempt of Supreme court and Madras High Court for not obeying the rulings given by the Supreme Court and the Madras High Court on registration of FIR on complaint disclosing cognizable offences? 21.4. The police have to register the FIR as per the rulings of Supreme Court in Lalita Kumari’s case and of Madras High Court in M/s Vetri Medical Agency’s case. The Magistrate refuses to direct the police to obey the law under Section 154 Cr.P.C., and under Section 4(2)(b) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance 2014. Is this a correct course of action on the part of the Magistrate? 21.5. What is the remedy available to the Scheduled Caste member against the police for not registering the FIR forwarded by the Magistrate with an order by the Magistrate under Section 156(3) Cr.P.C.? 21.6. Is the ‘statement on oath’ of the complainant required in a case where the police have to execute the order passed by the Magistrate under Section 156(3) Cr.P.C., at the pre-cognizance stage? 21.7. Is the Magistrate justified in insisting the Scheduled Caste complainant to give ‘statement on oath’ for the purpose of registering the FIR by the police on a complaint disclosing cognizable offences forwarded to the police by the Magistrate ? 21.8. In case the Magistrate decides to dismiss or dismisses the complaint for want of ‘statement on oath’ from the Scheduled Caste complainant, what is the legal remedy available to the Scheduled Caste complainant against the Magistrate? 22. Your valuable opinion and guidance in this regard will be highly appreciated please.