In the Naman [email protected] Naman Pratap Singh & Anr.V/s State of U.P. & Ors.[i] the Hon’ble Supreme Court pronounced that Executive Magistrate has no power to direct police to register FIR, such powers lies with Judicial Magistrate.
Facts of Case:
Herein the mentioned case before Supreme Court, the factual background was that student (i.e. one of the respondent) filed a private complaint before Executive Magistrate stating that the appellant malicious duped for taking admission in unrecognized institute. Thus, a complaint before Sub Divisional Magistrate, Unnao was lodged by student,subsequently the executive magistrate directed the police to register F.I.R. on the same day.
The present appeal is filed being aggrieved by denial to quash criminal proceedings against them. Ld. Counsel for appellants submitted that the appellants duly obtained no objection certificate and affiliation from Chatrapati Sahuji Maharaj University, Kanpur for establishing of three years law course. The sum of Rs. 3, 50,000/- was also deposited with the Bar Council of India by the appellants and they also awaited for permission. It was also contended that several students had taken admission in the institute with full knowledge regarding the facts.
On the other hand, contrary arguments were made by the Ld. Counsel for respondents saying that appellants with malice intention misrepresented, cheated and wrongly influenced respondent no.4 and several others to take admission in an unrecognized institute.
Primary Issue before Court:-
Hearing both the parties the question before this Hon’ble Court was that whether Sub-divisional magistrate was competent authority to do so, and the F.I.R. registered was accordance with Criminal Procedure Code (herein after referred to be as ‘Code’).
Observation of Court:
It was observed by the Hon’ble Court that u/s 190 of Code, Judicial Magistrate can take cognizance either upon a private complaint or police report, and S.156(3) of Code also empowers the Magistrate to order investigation to police which also includes the power to direct police to register F.I.R. Furthermore, as per the Code no such powers are vested with Executive Magistrate.
Further, Court held that Executive Magistrate can order an administrative inquiry in case wherein any administrative jurisdiction issue is involved, also respondent no. 4 was having open door to approach directly to police or to Judicial Magistrate for complaint.
The appeal was allowed by Court:
“In view of the scheme of the Code as discussed, we have purposely refrained from going into the merits of the case so as not to prejudice either parties and also keeping in mind the nature of the jurisdiction under Section 482 of the Code. Any application by respondent no.4 hitherto under the Code will therefore have to be considered by the appropriate authority or forum in accordance with law. For the reasons discussed, the impugned order is held to be unsustainable and is set aside. The First Information Report therefore also stands quashed for the reasons discussed, but with liberty as aforesaid.”
[i] CRIMINAL APPEAL NO. 1620 OF 2018