In a recent case, the Supreme Court has held that an Executive Magistrate is not vested with the power to direct the police to file an FIR on the basis of a private complaint lodged with him.

In the case Naman Prasad Singh vs State of Uttar Pradesh, a bench of Justice Rohintan Fali Nariman and Justice Navin Sinha were faced with the question whether the Sub-Divisional Magistrate was competent to direct the police to lodge an FIR in such a case and whether the FIR so lodged can be said to have been registered in accordance with the Code of Criminal Procedure, 1973.

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In the instant case, a student had lodged a complaint with the Sub-Divisional Magistrate, Unnao that she had been duped into taking admission in an unrecognised institute.

The magistrate directed the police on the same day to register a first information report and thus an FIR was registered. The bench ruled that that an Executive Magistrate had no role in directing the police to register an FIR on the basis of a private complaint lodged before him.

The court said that “A reading of the FIR reveals that the police has registered the FIR on directions of the Sub-Divisional Magistrate which was clearly impermissible in the law.

The Sub-Divisional Magistrate does not exercise powers under Section 156(3) of the Code. The very institution of the FIR in the manner done is contrary to the law and without jurisdiction.” Sec 156(3) of the CrPC says that any Magistrate empowered under sec 190 may direct the filing of an FIR and order an investigation by the police.

But Sec 190 empowers only Magistrates of the first class or of the second class and the Chief Judicial Magistrate to order the investigation under sec 156(3). Hence, Executive Magistrates or Sub-Divisional Magistrates are not empowered to do so.

The court said that the powers of the Executive Magistrate are defined clearly under several laws. It said that “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. In such a case, entirely different considerations would arise.”

The apex court said that instead of complaining to the Executive Magistrate, the complainant could have:-

Lodged the FIR herself with the police u/s 154 of the CrPC.

Could have proceeded u/s 154(3) by writing to the Superintendent of Police if the police station did not lodge her FIR.

If both the above had failed and she could not get the police to lodge the FIR, she could have moved the magistrate concerned u/s 156(3).

She could have filed the complaint u/s 200 before the jurisdictional Magistrate.

This is in consonance with what the apex court held in the case of Sakiri Vasu vs State of UP and others. The apex court quashed the illegal FIR but observed that if the complainant chose to proceed as per the options available to her for the redressal of her grievance, the same would have to be considered by the appropriate authority or forum in accordance with law.

(The writer is Editor-in-chief, www.indiacommentary.com)