The Supreme Court has held that under the scheme of the Code of Criminal Procedure (CrPC), an executive magistrate cannot direct the police to register an FIR on the basis of a private complaint lodged before him.
The top court, however, said that if a complaint is lodged before an executive magistrate on an issue over which he has an jurisdiction, then he can himself lodge an FIR in the matter after conducting an administrative inquiry.
A bench of Justices R F Nariman and Navin Sinha set aside the order of Lucknow bench of Allahabad High Court by which it had refused to quash an FIR lodged against a private college on the direction of a Sub-Divisional Magistrate (SDM).
On January 31, 2018, SDM, Unnao in Uttar Pradesh had directed the police to lodge an FIR against a college run by Naman Pratap Singh after a student made a private complaint to the officer alleging that she had been duped into taking admission in an unrecognised institution.
The bench after perusing various provisions of CrPC said,"It is therefore apparent that in the scheme of the Code, an Executive Magistrate has no role to play in directing the police to register an FIR on basis of a private complaint lodged before him".
The court said that after reading the FIR, it reveals that the police has registered the FIR on directions of the SDM which was clearly impermissible in the law as he (SDM) does not exercise powers under Section 156(3) of the CrPC.
The court, however, said, "If a complaint is lodged before the executive magistrate regarding an issue over which he has administrative jurisdiction, and the magistrate proceeds to hold an administrative inquiry, it may be possible for him to lodge an FIR himself in the matter".
The top court said that in the instant case, the very institution of the FIR is contrary to the law and without jurisdiction and hence is liable to be quashed.
It said that section 154 of the CrPC provides for registration of a FIR at the instance of an informant, reduced into writing and signed by the person giving it while Section 154(3) stipulates that in the event of a refusal on part of police officer to record such information, it may be sent in writing and by post to the Superintendent of Police, who will direct investigation into the same.
The bench said that even section 190 of the CrPC provides for taking of cognizance by a Magistrate either on a complaint or upon a police report.
"Similarly, Section 156(3) provides that any Magistrate empowered under Section 190 may order such an investigation, and which also includes the power to direct the lodgement of an FIR. The Code in Section 200 of CrpC provides for lodging of a complaint before the Magistrate, who after examination of the complainant and witnesses, if any, can take cognizance," the bench said.
It said that nothing prevented the student from lodging an FIR before the police or if the circumstances so warranted, then she could have approached the superintendent of police under section 154(3) of CrpC.
"Alternately, the respondent (student) could have moved the Magistrate concerned under Section 156(3) of the Code in the event of the refusal of the police to act. Remedy was also available to the respondent by filing a complaint under Section 200 of the Code before the jurisdictional Magistrate," the bench said.
The court while refusing to go into the merit of the case said that any complaint made by the student under the established provision will therefore have to be considered by the appropriate authority or forum in accordance with law.
Naman Pratap Singh has moved the apex court challenging the order of Lucknow bench of Allahabad High Court by which it had refused to quash the FIR.
He had contended that no objection certificate has been obtained from the Chatrapati Sahuji Maharaj University, Kanpur for establishment of the three-year law course and affiliation was also granted by the varsity.
He said that they have also deposited a sum of Rs 3.5 lakh with the Bar Council of India and were awaiting permission from it for starting the law course.
Singh argued that the question of any fraudulent misrepresentation by the appellants, persuading students to take admission in an unauthorised institution simply does not arise.
"Several students have taken admission in full awareness of the existent facts with no grievances and have sworn affidavits to that effect," he had said.
The student, who had lodged a complaint against the college contended that by misrepresentation and cheating she had been persuaded to take admission in an unrecognised institution.
"There are several students who are aggrieved," she had claimed.
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