VENKATESH (ACCOUNTANT) 21 October 2013
DEAR SIR,
PRIVATE COMPLAINT IS FILED UNDER SECTION 200 CRPC. AFTER EXAMINING THE COMPLAINANT AND WITNESS COMPLAINT FORWARDED BY MAGISTRATE TO SHO OF THE CONCERNED PS BY ORDERING TO REGISTER AND INVESTIGATE THE SAME UNDER SECTION 202 CRPC. THE SAME IS REGISTERED BY SHO AND FILED FIR BEFORE MAGISTRATE AND WITH OUT ARREST WARRANT ARRESTED THE ACCUSED PERSON AND FILED THE REMAND REPORT BEFORE THE SAME COURT. IS THIS LEGAL OR ILLEGAL? IF ILLEGAL PLEASE ANY HON,BLE SC JUDGIMENTS.
Jairaj (Partner) 21 October 2013
Legality of arrest is based on whether the case was cognizable or not. Kindly place the offences for which the complaint was filed.
VENKATESH (ACCOUNTANT) 22 October 2013
dear sir,
private complaint u/s.200 Cr.P.C. for the allegations u/s.420, 467, 468, 474 and 120B r/w 34 of IPC
Jairaj (Partner) 23 October 2013
so long as there is a cognizable offence the police are well within their limits to arrest without a warrant. there might be several offences of which only one of them is cognizable and so as as there is one the police can do so. refer to section 156(4)of CRPC
VENKATESH (ACCOUNTANT) 31 October 2013
Dear sir,
is this the right judgement for me?
The Supreme Court, in the case reported in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, , the Supreme Court emphatically stated as follows : (Para 17)
"Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading "Of complaints to Magistrate". The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). 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 session 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) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1) (a). 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 precognizance stage and avail of Section 156(3). It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding." Thus the object of an investigation under Section 202 is not to initiate a fresh ease on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him."
Nitish Banka (lawyer) 08 June 2018
Police plays a vital role in collection of evidence and facts which is heart and soul for a criminal case. The main role of police in criminal case is Search, Seizure and interrogation. It is widely believed that the role of police starts after the registration of FIR which is under 154 of Cr PC or when magistrate directs the registration of FIR and investigation under 156(3). but will happen if your 156(3) is also dismissed and no FIR is registered in your case. The answer is complaint under 200CrPC.
The provisions of 200 CrPC are of different nature and is made for people who can prove their own case without the intervention of police that means there is no requirement of search and siezure in the case and complainant has material to prove a criminal case. Generally offences like cheating, forgery, criminal breach of trust are good cases to come within the ambit of S. 200 Crpc.
The role of police in 200 CrPC is defined under 202 CrPC
If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
The role of police is limited when it comes to inquiry under 202 Crpc and magistrate has to record reasons before initiating such inquire and specifying the scope of inquiry.
In Kewal Krishan vs Suraj Bhan and another AIR 1980 SC 1780 “Further, the inquiry under Section 202 is of a limited nature. Firstly, to find out whether there is a prima facie case for issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose is to find out “whether or not there is sufficient ground for proceeding against the accused”. The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202CrPC the accused has no right to intervene and it is the duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made.”
In Kewal Krishan vs Suraj Bhan and another AIR 1980 SC 1780, to the effect that the standard to be adopted by the judicial Magistrate in scrutinizing the evidence is not the same as at the stage of framing charges. At the stage of Section 204 Cr.P.C., if there is prima facie evidence in support of the allegations in the complaint, that would be sufficient ground for issuing process to the accused. Standard of the said evidence so collected to sufficient grounds for proceeding further is lower than the one to be adopted at the stage of framing charges. It is always open to the Magistrate to weigh the probability and prima facie truthfulness of the evidence produced at the preliminary stage and to form an opinion that no ground exists for proceeding against the accused by passing a speaking order. Wide discretionary power has been conferred u/s 202(1) Cr.P.C. to postpone the issue of process and to either hold an inquiry himself or to direct an investigation to be made by the police officer as he thinks fit, for Cr.Misc. 54913 M of 2007 – 20-
the purpose of deciding whether or not there is sufficient ground for proceeding. When a statute gives wide discretionary power to an authority or Court to adopt any one of the procedures prescribed under law, it becomes mandatory for the said authority for recording reasons for exercising the power even if the statute does not expressly enjoin upon the said authority to do so. It goes without saying that the reasonableness of the exercise of discretion can be decided keeping in view the object, which the statute seeks to achieve while granting discretion.
In Ranjit Puri and others vs Uggar Sain1974 Crl.L.J. 1229, an order passed by the Magistrate, not recording reasons for postponing the issue of process and directing the police investigation was set aside by the our High Court. The order directing the police to investigate the matter, after preliminary investigation and the order of issuing process without proper application of judicial mind, was held to be bad.
The police does not have unfettered powers of investigation in 202 unlike 156(3) but still police can get involved in cases pertaining to 200 crpc but for a limited purpose.
By Adv. Nitish Banka
Practicing Advocate in Supreme Court of India
nitish@lexspeak.in
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