Can't Stifle Police Investigation Initiated At Orders Of Magistrate U/S 156(3) CrPC, Accused May Raise Challenge At Cognizance Stage: Kerala HC

The Kerala High Court has said that when a FIR is registered at the directions of a Magistrate under Section 156(3) CrPC, the High Court may not exercise jurisdiction under Section 482 CrPC and quash such FIR unless there are compelling and justifiable reasons.

Justice Sophy Thomas said that in such cases, the accused may raise a challenge if final report is filed charging him/her for a cognizable offence or if he/she is aggrieved by the order of the Magistrate taking cognizance of the offence.

It observed,

"Before conducting investigation as to whether the petitioner had committed a cognizable offence or not, and before a final report is filed charging him for the offences alleged, in normal course, he cannot challenge the investigation undertaken by Police, which was so directed by the Magistrate under Section 156(3) of Cr.P.C. When investigation undertaken by Police as ordered by the Magistrate under Section 156(3) of Cr.P.C. is in progress, this Court cannot interfere with the investigation, which is a statutory function exercised by Police. Unless there are compelling and justifiable reasons, there cannot be any interference with the investigation proceedings."

Court reasoned that when a is crime registered by the Police on the basis of a complaint forwarded by the Magistrate under Section 156(3) of CrPC, it cannot be said that the person arrayed as an accused in the FIR is aggrieved by registering that crime. When a complaint is forwarded by the Magistrate under Section 156(3) of Cr.P.C for investigation, the SHO concerned is duty bound to register a crime and to investigate the matter, the Court clarified.

The petitioner who was arrayed as accused of a crime approached the High Court for quashing the FIR while the investigation was undergoing under Section 156 (3) CrPC. The allegation raised by the petitioner was that criminal proceedings against him were unsustainable, and FIR had to be quashed.

Section 156 (3) CrPC pertains to the power of the Police to conduct an investigation of a cognizable case based on the order of the Magistrate. The legal issue before the Court was whether a person against whom FIR was registered and investigation was undergoing at the order of the Magistrate under Section 156 (3) CrPC could challenge the investigation process even before the final report was filed by the police and before he was charged with any cognizable offence by the Magistrate.

The Court held that no injury or irreparable damage was caused to a person merely because an FIR was registered by the police under section 156 (3) CrPC to conduct an investigation of a cognizable case based on the order of the Magistrate. It noted that the accused can challenge proceedings only after the Magistrate takes cognizance of the offence based on the final report and not during the course of investigation as ‘investigation is the province of police’ and judicial intervention was unwarranted except to prevent miscarriage of justice. 

The Court further observed that the accused can challenge the proceedings initiated against him before the Magistrate or the High Court after the Magistrate has taken cognizance of the offence based on the final report filed by the police.

“Only if final report is filed, charging the petitioner for a cognizable offence, then only the Magistrate can take cognizance of it. If the petitioner is aggrieved by the order of the Magistrate in taking cognizance of the offence, he will get locus standi to challenge the same, on legally sustainable grounds. So this petition is premature. By merely registering Annexure-B FIR, no injury has been caused to the petitioner. The petitioner may ventilate his grievance, if any, before the Magistrate either at the time of framing charge or at other stages of enquiry or trial, when the Magistrate is in seizin of the matter, or else he can approach this Court invoking inherent jurisdiction of this Court under Section 482 of Cr.P.C.”

It further added that the accused could approach the Court when an investigation was carried out under Section 156 (3) CrPC when there were compelling and justifiable reasons to prevent the miscarriage of justice.

Relying upon Johny Joseph v. State of Kerala (1986), the Court held that the accused has the jurisdiction to challenge the proceedings after the charge sheet or final report was filed against him. It further noted that the High Court can interfere during the investigation in exceptional cases to prevent the miscarriage of justice. It held that in other cases, the police shall have the full discretion to carry investigation and the Court should not interfere during the course of the investigation.

Relying upon the Apex Court decision in HDFC Securities Ltd. v. State of Maharashtra (2017), the Court noted that investigation by police under Section 156 (3) CrPC does not cause injury of an irreparable nature. It held that the accused can approach the High Court to quash the proceedings under Article 227 of the Constitution or by way of invoking its inherent powers under Section 482 CrPC after the investigation report was filed and cognizance of the offence was taken by the Magistrate.

In the facts of the case, the Court noted that the accused could approach the Court to quash the FIR after the final report was filed by the police charging him with a cognizable offence. It noted that the accused will get the locus standi to challenge the proceedings after the Magistrate has taken cognizance of the offence based on the final report. Accordingly, the Court dismissed the petition as premature. 

Counsel for the petitioner: Advocate K S Praveen