KEYWORDS : FIR- INVESTIGATION-
Section 157(1) OF CRIMINAL PROCEDURE CODE requires an Officer Incharge of a Police Station who ‘from information received or otherwise’ has reason to suspect the commission of an offence-that is a cognizable offence-which he is empowered to investigate under Section 156, to forthwith send a report to a Magistrate empowered to take cognizance of such offence upon a police report and to either proceed in person or depute any one of his subordinate Officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender. This provision is qualified by a proviso which is in two parts (a) and (b). As per Clause (a) the Officer Incharge of a Police Station need not proceed in person or depute a subordinate officer to make an investigation on the spot if the information as to the commission of any such offence is given against any person by name and the case is not of a serious nature. According to Clause (b), if it appears to the Officer Incharge of a Police Station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. Sub-section (2) of Section 157 demands that in each of the cases mentioned in Clauses (a) and (b) of the proviso to sub-section (1) of Section 157, the Officer Incharge of the Police Station must state in his report, required to be forwarded to the Magistrate his reasons for not fully complying with the requirements of sub-section (1) and when the police officer decides not to investigate the case for the reasons mentioned in Clause (b) of the proviso, he in addition to his report to the Magistrate, must forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause the case to be investigated. Section 156(1) which is to be read in conjunction with Section 157(1) states that any Officer Incharge of a Police Station may without an order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of the concerned police station would have power to enquire into or try under provisions of Chapter XIII. Section 156(3) vests a discretionary power on a Magistrate empowered under Section 190 to order an investigation by a police officer as contemplated in Section 156(1). It is pertinent to note that this provision does not empower a Magistrate to stop an investigation undertaken by the police. (See State of Bihar and Anr. v. J.A.C. Saldanha and Ors. (1980) 1 SCC 554) In that case, power of the Magistrate under Section 156(3) to direct further investigation after submission of a report by the investigating officer under Section 173(2) of the Code was dealt with. It was observed as follows :
“The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8).”
The above position has been highlighted in State of Haryana and Ors. v. Bhajan Lal and Ors. (1992) 1 Suppl. SCC 335).
77. In State of Punjab and Anr. v Gurdial Singh and Ors. (1980) 2 SCC 471) it was observed as follows: “..If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal.”
78. At this stage it needs to be clarified that the obligation to register a case is not to be confused with the remedy if same is not registered. Issue of the remedy has been decided by this Court in several cases. (See Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. (2004) 7 SCC 768).
79. The ultimate test therefore is whether the allegations have any substance. An investigation should not be shut out at the threshold because a political opponent or a person with political difference raises an allegation of commission of offence. Therefore, the plea of mala fides as raised cannot be maintained. [ Parkash Singh Badal and ANOTHER Vs State of Punjab and OTHERS [SC 2006 DECEMBER]