Process of FIR under 156(3) of CrPC Vs. 175(3) of BNSS
Category: Criminal Law
「 ✦ Content ✦ 」
Erstwhile Code of Criminal Procedure (CrPC) and now
newly introduced Bhartiya Nagarik Suraksha Sanhita (BNSS) described in detail
the procedure to be followed in cases of criminal justice.
Filing FIR and start of Investigation
The procedure starts with filing of First Information Report (FIR) or first information of cognizable offence to the officer in charge of the police station is covered u/s 154 of CrPC.
Although the FIR has not been defined under CrPC, it refers to intimation either oral or written, to police officer of conduct of cognizable offence at the earliest possible time. It is advisable to file written FIR and take a copy of the same with acknowledgement from on duty police officer.
Section 2 ofthe Code of Criminal Procedure defines a cognizable offence. Cognizable offence means an offence for which, and cognizable case means, a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Cognizable offences are usually serious in nature.
Sec. 154 Cr.P.C. provides that the Police Officer has to receive FIR relating to cognizable offences without Magistrate's permission, and enters it in General Diary and immediately starts investigation.The Police may arrest the accused, in cognizable offence without warrant. In cognizable offences, police has a duty to investigate the case without seeking permission from the Magistrate.
What happens in case police official does not record FIR u/s 154(1) pf CrPC?
Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-Section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided in CrPC, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
Further, in case Superintendent of Police does not record the information of the offence committed then such complainant can go to magistrate u/s 156(3) of CrPC, Magistrate may allow the application and order police official of that jurisdiction to file FIR and start investigation.
Power of Magistrate under Section 156 (3) of CrPC
The provision provides the power to a judicial magistrate to direct the police to conduct an investigation where the police have failed to conduct the investigation properly or refused to file FIR in cognizable offences.
A Magistrate can order investigation under section 156 (3) only at a pre cognizance stage which means, that, if the Judge doesn't take cognizance under section 190, 200 and 204 and where a magistrate decides to take cognizance, he is not entitled by law to order any investigation under section 156(3).
Taking cognizance of offence means to become aware of the offence. Sec 190 provides that any Magistrate of first class or second class may take cognizance of offence-
1.
upon
receiving a complaint of facts which constitute such offence;
2.
upon
a police report of such facts;
3.
upon information received from any person
other than a police officer, or upon his own knowledge, that such offence has
been committed.
Misuse of Section 156(3)
It has been observed that people started misusing this section for filing frivolous cases and frivolous claims to harass the other party. They just inform once to police station and then Superintendent of Police and then directly approach to magistrate u/s 156(3). This caused two problems-
1. Number of pending cases increased in court
2. People started filing false FIRs due to personal enmity.
To address these issue Supreme Court in Sakiri Vasu vs State of U.P And Others held that if a case to registered u/s 156(3), 2 conditions are needed to be fulfilled:
1. The complainant has to first go to nearest police station to register the complaint and if police station has not lodged the FIR then he must approach Superintendent of Police (SP) of that area. and SP has also refused to register the complaint, or
2. The Police Station and the SP have lodged the FIR but proper investigation has not been done.
It is a kind of special power given to a judicial officer where the police do not or cannot file an FIR arbitrarily.
Revisional Power if application u/s 156(3) has been accepted by Magistrate
1. The other issue arises that whether there exist any revisional power to proposed accused in case application u/s 156 (3) is allowed?
2. The Allahabad High Court in Father Thomas Vs. State of UP, held that there is no revisional power against order of magistrate and proposed accused has to approach High Court for revision.
3. However, after 3 years from the judgement of Father Thomas Case, Delhi High Court held that the order passed u/s 156(3) by magistrate is a revisable order.
The main issue was that whether a revisional order still lies if the magistrate orders the police to file an FIR?
Application to be supported by affidavit
1. To address this issue and to prevent the misuse of section 156(3) by filing false FIRs, Supreme Court in Priyanka Srivastava vs State of U.P held that application u/s 156(3) must be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate.
2. Because if tomorrow it is proved that the complainant lodged a complaint on false happening of events then the complainant will be held liable afterwards.
3. the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3).
Corresponding provisions in Bhartiya Nagarik Suraksha Sanhita (BNSS)
Now the newly introduced BNSS which has corresponding section 175 (3) to Section 156 (3) of CrPC incorporates above judgements by Supreme court.
As per 175(3) two conditions must be satisfied before filing application to magistrate for ordering to register FIR and initiating police investigation-
1.Application to magistrate must be considered after considering the application made under sub-section (4) of section 173 and submission made in this regard by the police officer.
2. The
application u/s 173 (4) must be supported by an affidavit.
The new section 173 of BNSS which corresponds to section 154 of CrPC states about information in cognizable cases.
1. Section 173(1) provide that every cognizable offence must be informed orally which is reduced to writing or by electronic means. irrespective of the area where the offence is committed, to an officer in charge of a police station
2. Section 173(4) further states that in case police officer refused to register FIR, may send such information, in writing and by post, to the Superintendent of Police concerned who, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.
3. In case police officer or Superintendent of Police failed to register the complaint than application may make an application for magistrate order u/s 175(3).
Procedure to be followed under section 175(3)
The application to be filed u/s 175(3) must be supported by an affidavit.
Summary
As we have seen in above discussion that BNSS has incorporated supreme court judgements in section itself, to curb all the loopholes in erstwhile section 156(3) of CrPC. However, there are still some issues such as revision application is allowed in case of magistrate order or not still to be answered by BNSS as well. Every law evolves with time and circumstances and so as BNSS. We hope that this new era of criminal justice system would bring some major reforms.
