Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XXI

Q.101 Where, on receipt of a complaint alleging that commission of a cognizable offence, the Magistrate orders an investigation under Section 156 (3) Cr.P.C. is it not permissible for the SHO to refuse to register an FIR for the reason that he has no territorial jurisdiction to register an FIR and conduct investigation ?Ans. No. On receipt of a complaint for investigation under Section 156 (3) Cr.P.C. the SHO cannot refuse to investigate the case on the ground that he has no territorial jurisdiction and that the investigation should be transferred to the Police Station concerned. Whatever investigation conducted by him will stand cured under Section 156 (2) Cr.P.C. (Vide paras 27, 28, 30, 31 and 33 of Rasiklal Dalpatram Thakkar v. State of Gujarat (2010) 1 SCC 1 – Altamas Kabir, Cyriac Joseph - JJ).Q.102 Is not the accused entitled to participate in the inquiry under Sections 200 and 202 C.r.P.C?Ans. No. Until process is issued to the accused and the accused either appears or is produced, he has no right to participate in the inquiry either under Section 200 or under Section 202 Cr.P.C. Even if the accused happens to be present in Court, he can only watch the proceedings (Vide –Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar AIR 1960 SC 1113 – 3 Judges - S. K. Das, J. L. Kapur, M. Hidayatullah – JJ;Chandra Deo Singh v. Prakash Chandra Bose (1964) 1 SCR 639 – Mudholkar – J;Nagawwa v. Veeranna Sivalingappa Kanjalgi AIR 1976 SC 1947 – A. C. Gupta, S. Murtaza Fazl Ali - JJ; Sashi Jena V. Khadal Swain – (2004) 4 SCC 236 = AIR 2004 SC 1492 – Y. K. Sabharwal, B. N. Agrawal - JJ; Para 53 of Manharibhai Muljibhai Kakadia V. Shaileshbhai Mohanbhai Patel- (2012) 10 SCC 517 = 2013 Cri.L.J 144 (SC) - 3 Judges – R. M. Lodha, C. K. Prasad, Mukhopadhaya - J).NOTE by VRK: Even though Manharibhai (Supra) held that the accused has no right to be heard before process is issued by the Magistrate, it also held that in a revision taken against the dismissal of a complaint under Section 203 Cr.P.C., if the revision is being allowed, then the accused is entitled to be heard in view of Section 401 (2) Cr.P.C. But, strangely, the Bench held that after the case is sent back to the Magistrate, the accused is not entitled to be heard nor can he participate in the proceedings before the Magistrate until process is issued. I have my respectful reservation about the above view. If the accused has no right to be heard at that stage before the Magistrate, then merely because a revision is taken to the Court of Section or the High Court, the stage is not different. In my view the accused need not be even made a party to the revision taken at that stage. The worst that can happen at that stage during the absence of the accused is that the Magistrate may take cognizance of the offence. That invariably happens at the pre-process stage without the presence or participation of the accused. Q.103 Will cognizance taken on an incomplete Police report vitiate the proceedings ?Ans. No. If a Police Report filed under Section 173 (2) Cr.P.C, though incomplete, contains sufficient materials for the Magistrate to take cognizance of the offence, then it is a complete Report within the meaning of Section 190 (1) (b) Cr.P.C. (Vide Tara Singh v. State AIR 1951 SC 441 – 4 Judges - Saiyid Fazl Ali, M. Patanjali Sastri, S. R. Das, Vivian Bose - JJ).Police Report -Section 2 (r) loosely called - a police challan, final report, charge sheetComplaint -Section 2 (d) - loosely called - a private complaint Q.104 Can a Magistrate who does not have territorial jurisdiction to try the case, take cognizance of the offence ?Ans. Going by the verdict of the Supreme Court, in Trisuns Chemical Industry v. Rajesh Agarwal - (1999) 8 SCC 686 = AIR 1999 SC 3499 – K. T. Thomas, M. B. Shah – JJ, a Magistrate taking cognizance of an offence need not necessarily have the jurisdiction to try the case as well. The Apex Court observed that the provisions of Sections 177 and 179 Cr.P.C. do not trammel the powers of the Court to take cognizance of the offence.NOTE BY VRK: But the above decision overlooks Sections 156 (1), 157 (1), 162 (2), 169, 170, 173 (2) (i), 201 and 204 Cr.P.C.1. S. 156 (1) Cr.P.C. – declares that the territorial jurisdiction of an SHO is co-extensive with that of the appropriate Court which is competent to try the offence. (Vide para 5 of T. P. Nandakumar v. State of Kerala 2007 (4) KLT 725 = 2008 Cri.L. J. 298 – V. Ramkumar – J ).Chapter XIII of Cr.P.C. decides which Court shall conduct the inquiry and trial in respect of an offence. Ordinarily, it is the Court within whose territorial limits the offence was committed, has to try the same.2. S. 157 (1) Cr.P.C. – mandates that the SHO, after registering an FIR in respect of a cognizable offence shall send a report of the same to “the Magistrate empowered to take cognizance of the offence”.3. S. 162 (2) Cr.P.C – Even when an accused person produced before the nearest Magistrate under Section ...

Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XXI

Justice V. Ramkumar

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