Adil ahamad

Intern at Ubadvocate

E-mail ahmadadil7084214803@gmail.com

Ph no. 7007234932

FACTS-

Pawan Kumar is enjoying the exclusive peaceful possession of a commercial

property for the last 2 years.However,there is some dispute over the property with
his business partner,Sunil Jha.Sunil Jha first approached civil court but later on
withdrew the case as he apprehend that he may not prove his rights in the court for
the reasons that the document with him are not bonafide.Therefore he approached
the local police station and asked him to vacant the premises and hand over the
keys to Sunil Jha.Pawan Kumar refused to do so.Police registered a false case
under Arms Act by showing that Pawan Kumar was found to have an illegal
revolver and knife.Took him in custody and beaten him mercilessly.Pawan Kumar
after having got bail in the matter, filed a complaint against the SHO and other
concerned police officers.But no FIR was registered.He also made the
representation to the superintendent of the police.But in vain.Pawan Kumar wants
to file a writ in High Court direction police to register the FIR on his complaint
against the SHO and other named police officers.

ISSUE-

What is the probability that the High court will order for registration of the FIR?

LEGAL OPINION-

First of all, thanks Pawan Kumar for asking me for a legal opinion.
As I went through the facts of your case,so, in my opinion, the Police are at fault
by not registering the F.I.R.

FIR means ‘First Information Report.’ FIR is the first document prepared in
criminal proceedings. FIR is a document that places on record the victim's side of
the story. FIR acts as a tool on which police authorities base and start their
investigations. Hence, it is pretty clear that an FIR plays a vital role in criminal
proceedings.

Section 154(1) of the CrPC-

Every information relating to the commission of a cognizable offense, if given
orally to an officer in charge of the police station, shall be reduced to writing by
him 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 the behalf.

It clearly states in section 154(1) that the cognizable offense will have to be
registered immediately in the book of the police officer.The provision of section
154 of CrPC is mandatory and the concerned officers duty bound to register the
case on the basis of disclosing a cognizable offense.Aslam is entitled to have his
FIR registered as it is compulsory for the police officer to do so under section 154
because the offense is cognizable according to the First schedule.

Section 2(c) of the Criminal Procedure Code (1973), defines a cognizable offense.
According to the definition given in the Code, such offenses are those where the
police are empowered to make an arrest of the accused without a warrant or
permission from the magistrate. These offenses are more serious and heinous. This
classification of offenses and whether a particular offense falls under the category
of cognizable offense or not is given under the First Schedule of the Code.
Examples of such offences are rape, murder, abduction, theft, kidnapping, etc.
These offenses create a threat to society and disturb the peace and harmony
therein.

Pawan Kumar can approach the High court under Section 482 of The Code of
Criminal procedure and/or Article 226 of the Constitution of India.
Article 226 of the Constitution of India- Power of High Courts to issue certain
writs.

Section 482 of CrPC states that - Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the
High Court to make such orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice.

Conditions through which Pawan will be able to register his case in the High
Court- 1. Where the magistrate has refused to order under section 156(3) of the
CrPC.
2. Despite the order of the magistrate u/s 156(3), FIR is not registered.
3. If the police fail to complete preliminary inquiry within six weeks as mandated
by the Supreme court in the case of Lalitha Kumari vs State of the UP.In such
situation, one can approach u/s 482 CrPC read with article 144 of the constitution
on India.9in such cases, court does not look into the complaint but issue direction
of police to register FIR on the complaint for the very failure of the police to
follow the mandate of the supreme court in the case of Lalitha Kumari vs State of
UP.

Section 156 states that the magistrate has the power to order the police officer
to register an FIR of the cognizable offense. In case anyone wants to approach the
High Court for filling of a FIR, they can approach under section 482, Code of
Criminal Procedure under Article 262, Constitution of India. Section 482 also
gives the power to the High Court to exercise with twin objectives- prevent abuse
of the process of court and secure the ends of justice. Petition under
Section 482 is not maintainable unless or until the petitioner has exhausted
remedies under Section 154(1), 154(3) and 156(3) of the Code of Criminal
Procedure. Another important thing is that the word ‘shall’ has been used in
Section 154(1) and there is no ambiguity in the provision, therefore it means must.
Section 166, Indian PenalCode also states that if the police officer refuses to file a
FIR, then you can file a criminal case against them.
The police officer who had not registered the FIR has broken the law.In the CrPc,
nowhere has it been written that the police are under the obligation to conduct a
preliminary inquiry.

Hon’ble Apex Court, in the matter of “M. Subramaniam & Anr. V/S S. Janaki &
Anr[1], has recently set aside a High Court order which directed the police to
register an FIR and file the final report on the basis of the complaint. Hon’ble
Supreme Court placed reliance on its previous decision in the matter of Sakiri Vasu
v. State Of Uttar Pradesh And Others[2] (“Case 1”) in which it has dealt with due
process in connection with the non-registration of FIR.

Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage- This Court has held in
Sakiri Vasu v. State of U.P Sakiri Vasu v. State of U.P, 2008 2 SCC 409, that if a
person has a grievance that his FIR has not been registered by the police, or having
been registered, proper investigation is not being done, then the remedy of the
aggrieved person is not to go to the High Court under Article 226 of the
Constitution of India, but to approach the Magistrate concerned under Section
156(3) CrPC. If such an application under Section 156(3) CrPC is made and the
Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it
has already been registered, he can direct proper
investigation to be done which includes in his discretion, if he deems it necessary,
recommending change of the investigating officer, so that a proper investigation is
done in the matter. We have said this in the Sakiri Vasu case because what we have
found in this country is that the High Courts have been flooded with writ petitions
praying for registration of the first information report or praying for a proper
investigation.
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 Magistrate
concerned under Section 156(3) CrPC 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.
CONCLUSION-

Pawan should not rush to High court With a writ petition under section 226 of the
constitution of India Or Application under section 482 of the CrPC should avail the
alternative remedy as provided under section 156(3) of CrPC.

If in any case the High court asks Pawan to withdraw the case from the High court,
then you can request the High court to direct the Magistrate to consider registration
of the FIR under section 156 (3).

If Pawan can avoid going to High court, he should do that because-

1.High courts refuse to interfere and there is high probability to relegate the
petitioner to his alternative remedy first under section 154(3) and thereafter under
section 156(3) of the code of CrPC.
2. The High court also has power to quash the FIR. Therefore, if on one hand, a
judge of a high court directs FIR to be registered, and on the other hand, the other
side may approach with another petition for
quashing the FIR. The other judge may quash the FIR.

My opinion is supported by provision of law, Section 154 (1), Section 2 (c),Section

154 (3), Section 157, Section 156 (3), Section 39, Section 36, Section139, Section
12, Section 202, Section 482 and Section 190 (c), the Code ofCriminal Procedure
and Article 254 (1), Article 262, and Article 144,Constitution of India and further
by rulings of court on the point whether the police is correct or not for filing the
FIR.

My opinion on this topic is based on the YouTube video

https://youtu.be/nzdVGx14HJU of Jeevan Prakash, AOR, SUPREME COURT.