Magistrate Doesn't Require Prior Sanction To Direct FIR Registration Under S.156(3) CrPC : Supreme Court

The Supreme Court today held that a Judicial Magistrate does not require prior sanction under Section 196/197 of the Code of Criminal Procedure for directing the registration of FIR under Section 156(3) of the CrPC.

"The requirement of prior sanction under Section 196 and 197 CrPC (or corresponding provisions in the BNSS) operates at the stage of taking cognizance and does not extend to the pre-cognisance stage of registration of FIR or investigation under Section 156(3) CrPC/Section 175(3) BNSS", the Court said.

Referring to Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627, the Court observed -"The power exercised by a Magistrate under Section 156(3) of CrPC falls at the pre-cognisance stage. An order directing investigation under the said provision does not amount to taking cognizance of the offence."

Reference was also made to the judgment in State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728 and Sakiri Vasu.

"A cumulative reading of the principles laid down in Pastor P. Raju (supra) and Sakiri Vasu (supra) makes the legal position abundantly clear that an order passed by a Magistrate under Section 156(3) of CrPC does not amount to “taking cognizance” of an offence within the meaning of Section 190 of CrPC," the Court held.

The Bench cautioned that any interpretation making registration of an FIR dependent on prior sanction would effectively invert the statutory framework governing criminal investigations and render the investigative provisions unworkable.

"The scheme of CrPC does not contemplate any embargo on the direction for registration of an FIR or the conduct of investigation at the pre-cognizance stage. To hold otherwise would amount to introducing a restriction not envisaged by the legislature. The process of criminal law is sequential: information of a cognizable offence must first be received; an FIR must then be registered; investigation must follow; a report under Section 173 of CrPC must thereafter be submitted; and it is only at that stage that the question of taking cognizance arises.

The requirement of sanction is, therefore, a condition precedent only for taking cognizance and not for the registration of an FIR or for the conduct of investigation. Any interpretation that makes the registration of an FIR contingent upon prior sanction would invert this statutory scheme and render the provisions relating to investigation unworkable."

The Court added that the reliance on judgments in Anil Kumar v. Ayyappa and L. Narayana Swamy v. State of Karnataka (2016) 9 SCC 598 are misconceived since they were in the context of the Prevention of Corruption Act. The Court also noted that the correctness of these judgments are under reference in Manju Surana v. Sunil Arora.

The observation came in a plea filed by CPI(M) leader Brinda Karat, challenging the Delhi High Court's rejection of her petition seeking FIR against BJP leader Kapil Sharma, Anurag Thakur, etc., for alleged hate speeches ahead of the 2020 Delhi riots.  The Magistrate had refused to direct registration of FIR on the ground that prior sanction was required, a view later upheld by the High Court. On merits, the Supreme Court approved the Delhi High Court's view.

Section 196 CrPC (S.217 BNSS) mandates that for taking cognizance of offences under Sections 295A, 153A and 153B IPC, prior sanction from the Government is required. Section 197 CrPC (S.218 BNSS) mandates prior sanction for takign cognizance of offences against public servants. 

Today, the Supreme Court partly allowed Brinda Karat's petition to the extent of setting aside the High Court's observation that under Section 156(3) CrPC a Magistrate cannot direct registration of FIR without prior sanction.

A bench of Justices Vikram Nath and Sandeep Mehta delivered the judgment in a batch of cases seeking directions against hate speeches/hate crimes. Observing that the existing law adequately addresses hate speech offences, the Court refrained from passing directions to create hate speech offences. While the bench declined to pass directions of the nature sought, it left it upon the legislative authorities to consider in their wisdom of any policy or legislative measures are required.

The Court further said that the duty of the police to register an FIR on disclosure of a cognizable offense is mandatory (as held in Lalita Kumari case). In case of non-registration of FIR, the CrPC/BNSS provide efficacious remedies. Such as, an aggrieved person can approach the Superintendent of Police under Section 154(3) CrPC/Section 173(4) BNSS and thereafter invoke jurisdiction of the Magistrate under Section 156(3) CrPC/Section 175 BNSS, or proceed by way of complaint under Section 200 CrPC/Section 223 BNSS.

"These remedies constitute a complete statutory architecture. The availability of such remedies, coupled with the supervisory jurisdiction of constitutional courts under Articles 32 and 226 of the Constitution, demonstrates that no legislative vacuum exists warranting the intervention sought. The appropriate course lies in faithful and even-handed enforcement of the existing law."

Case Title: Brinda Karat v.State of NCT of Delhi and others SLP(Crl) 5107/2023 (and connected cases)

Case Title : Ashwini Kumar Upadhyaya v. Union of India, W.P.(C) No. 943/2021 (and connected cases)