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POLICE SHALL REGISTER FIR IN COGNIZIBLE OFFENCE COMPLAINTS 2006 SC

The Hon‟ble Apex Court in Lallan Chaudhary & Ors. Vs. State of Bihar & Anr. (2006)12 SCC 229 held as under: "Section 154 of the Code thus casts a statutory duty upon police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information……”

MAGISTRATE CAN REGISTER CONTEMPT PROCEEDINGS IF FIR IS NOT REGISTERED WITHIN 24 HOURS OF MAGISTRATE ORDERS 2008 SC

The Apex Court in Lalita Kumari Vs. Government of U.P.& Ors.(2008) 7 SCC 164 expressed its utmost displeasure on the failure of the police authorities of the country in not registering FIR‟s unless directions are given by the Chief Judicial Magistrate or the High Courts or the Supreme Court. The case before the Apex Court concerned the kidnapping of a minor child for which the police did not register an FIR till the matter was reported to the senior officials of the police and then sat over the investigation. Recommending initiation of contempt proceedings against the delinquent officials and to punish them for violation of the orders if no sufficient cause is shown the Hon‟ble Apex Court held that: "6. In view of the above, we feel that it is high time to give directions to the Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of FIRs immediately and copies thereof are not made over to the complainants, they may move the Magistrates concerned by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the FIRs to the complainants, within twenty-four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were the subject- matter of theft or dacoity. In case FIRs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the Magistrate concerned would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the disciplinary authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same."

COMPLAINT SHOULD CONTAIN THE FACTS CONSTITUTING THE OFFENCE

Mahant Baba Madhav Das vs State Of Rajasthan And Anr. 1998 CriLJ 4341, (Raj) In Clause(d) of Section 2 of the Criminal Procedure Code, the complaint has been defined in the following words :
"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police-report.
Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be the complainant.
The definition of "complaint" requires that the complaint should contain allegations that some person, whether known or unknown, has committed an offence and that it should have been made with a view that action should be taken on it. Clause (a) of Sub-section (1).of Section 190 of the Criminal Procedure Code requires the complaint to contain "facts which constitute such offence". As indicated by the words "upon receiving a complaint of facts which constitute such offence", shows that the complain! which may be Submitted before the Magistrate under Clause(a) of Sub-section (1) of Section 190 of the Criminal Procedure Code must contain not only the allegation that an offence has been committed but should also contain the facts constituting the offence. The reason for insisting on "facts which constitute such offence" is not difficult to be found out. A mere allegation thai a certain person has committed an offence, without stating the facts which constitute the offence, cannot enable the Magistrate or the police officer to apply his mind independently to the case in order to ascertain whether any offence has or has not been committed. The Magistrate before whom the complaint is filed is required to apply his mind independently and judicially to the complaint Submitted before him in order to find out whether any offence has or has not been committed. Whatever the complainant alleges cannot be accepted as correct. The very fact that the Magistrate is required to act independently in the matter and that he should form his own opinion regarding the commission of one or more offences shows that the facts of the case must be brought to his notice. This is why clauses (a), (b) and (c) of Sub-section (1) of Section 190 of the Criminal Procedure Code expressly require that the complaint or the police-report or other information must contain facts constituting the alleged offence. If a complaint contains only the allegations and does not contain the facts constituting the offence such a complaint would not be a complaint contemplated under Clause(a) of Sub-section (1) of Section 190 of the Criminal Procedure Code.

WHAT COURSE OF ACTION OPEN TO MAGISTRATE WHEN PCR IS FILED

Justice Hon'ble Bala Krishna Narayana, of Allahabad High Court, in the case of Smt. Javitri Devi vs State Of U.P. And Others, Decided on 11 January, 2010
In these circumstances, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156 (3) to register and investigate an alleged cognizable offence, when should he—
(A) grant the relief of registration of a case and its investigation by the police under Section 156 (3) Cr.P.C.,
(B) treat the application as a complaint and follow the procedure of Chapter XV of Cr.P.C.
The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some"investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom State has conferred the powers essential for investigation, for example.
(1) where the full details of the accused are known to the complainant and the same can be determined only as a result of investigation, or
(2) where recovery of abducted person of stolen property is required to be made by conducting raids or searches of suspected places or persons, or
(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved.
To illustrate by example cases may be visualised where for production before Court at the trial
(a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident, or
(b) recovery of case property is to be made and kept sealed; or
(c) recovery under Section 27 of the Evidence Act; or
(d) preparation of inquest report; or
(e) witnesses are not known and have to be found out or discovered through the process of investigation.
But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complainant case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary case to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202 (1) Cr.P.C. order investigation, even though of a limited nature.

TRANSFER OF AN UNDERTRIAL TO A DISTANT PRISON MAY ADVERSELY AFFECT HIS RIGHT TO DEFENCE & ISOLATE HIM FROM THE SOCIETY

That transfer of an undertrial to a distant prison may adversely affect his right to defend himself but also isolate him from the society of his friends and relations is settled by the decision of Court in Sunil Batra v. Delhi Administration AIR 1980 SC 1579, where Court observed: “48. Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Article 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary, under Article 14 if it is dependent on unguided discretion, unreasonable, under Article 19 if it is irremediable and unappealable, and unfair, under Article 21 if it violates natural justice. The string of guidelines in Batra set out in the first judgment, which we adopt, provides for a hearing at some stages, a review by a superior, and early judicial consideration so that the proceedings may not hop from Caesar to Caesar. We direct strict compliance with those norms and institutional provisions for that purpose.”

WHETHER A POA HOLDER APPEAR ON BEHALF OF ACCUSED ?

Hon'ble the Apex Court in the matter of T.C. Mathai v. District & Sessions Judge,[(1999) 3 SCC 614 : AIR 1999 SC 1385] has held that the provisions of Power of Attorney Act, 1882 can not override the specific provision of the statute which requires that a particular act should be done by a party in person and thus when the Criminal Procedure Code requires the appearance of an accused in a Court, it is no compliance with it if a power of attorney holder appears for him. Unlike the provisions of the Cr.PC where a party is required to appear in person and in case of exemption from personal appearance, is required to be represented by a pleader, the CPC does not enjoin on a party to appear in person in all circumstances until the appearance is dispensed with by the Court.

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