Sec.145 Cr.P.C. - Issue of FIR not arise - Police wrongly issued FIR and the High court set aside the same as it is illegal and beyond the powers of police officer = K. Guravaiah and others State rep. By the Public Prosecutor and another = 2010 ( APRIL - VOL - 4) JUDIS.NIC.IN / JUDIS_ ANDHRA / FILE NAME = 6850

  Sec.145 Cr.P.C. - Issue of FIR not arise - Police wrongly issued FIR and the High court set aside the same as it is illegal and beyond the powers of police officer =

This Court at the outset wondered as to how a crime can be registered in the police station and how F.I.R can be issued in a matter relating to Section 145 Cr.P.C. 
Section 145 Cr.P.C does not contain a penal provision much less deal with
any type of offence whether  cognizable or non-cognizable.  
Section 145 Cr.P.C
prescribes procedure to be followed where dispute concerning immovable property
or water is likely to cause breach of peace.  
Under Section 145 (1) Cr.P.C, the
Executive Magistrate passes an order  in case the Executive Magistrate is
satisfied from "a report of a police officer or upon other information" that a
dispute likely to cause a breach of peace exists.  
Thus, in proceedings under
Section 145 Cr.P.C., the police officer is the complainant or the informant to
the Executive Magistrate.  
When the Police Officer is the complainant or the
informant and is not the officer  who receives  information, then question of
registering the said information under Section 154 Cr.P.C does not arise at all.
The police officer acting under Section  154 Cr.P.C is at the receiving end with
reference to the information.  
Whereas a police officer in proceedings under
Section 145 Cr.P.C is not at the receiving end, but is at the forwarding stage
with reference to the information.  
Therefore, question of registering a crime
under Section 154 Cr.P.C and forwarding FIR to the Magistrate under Section 157
Cr.P.C. does not arise in case of proceedings  under Section 145 Cr.P.C.
Having regard to above discussion of various provisions of the Code of
Criminal Procedure, 1973, it follows that Inspector of Police,  Kurnool II Town
Police Station has exceeded his powers under the Code in issuing  FIR in Crime
No.91 of 2010 in a matter relating to proceedings under Section 145 Cr.P.C and
it is liable to be quashed on this ground alone irrespective of merits of
contents therein.

2010 ( APRIL - VOL - 4) JUDIS.NIC.IN / JUDIS_ ANDHRA / FILE NAME = 6850

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              
Criminal Petition No.3564 of 2010

29-04-2010

K. Guravaiah and others

State rep. By the Public Prosecutor and another

Counsel for the Petitioner : Sri J.U.M.V. Prasad

Counsel for the 1st Respondent:  Public Prosecutor
Counsel for the 2nd respondent: Nil

:ORDER:

1.      This petition is filed by the petitioners 1 to 4 who are shown as 'A'
group in F.I.R No.91 of 2010 issued by the Inspector of Police, Kurnool II Town
Police Station under Section 145 Cr.P.C, for quashing the said F.I.R under
Section 482 Cr.P.C.

2.      This Court at the outset wondered as to how a crime can be registered in the police station and how F.I.R can be issued in a matter relating to Section 145 Cr.P.C.  
The Inspector of Police Kurnool II Town Police Station by name Sri
P.Srinivas was summoned by this Court and he was questioned by this Court about 
his propriety in issuing F.I.R in a matter relating to Section 145 Cr.P.C by
registering the same as crime.  
The said police officer expressed that by
mistake F.I.R was issued by registering the crime under Section 145 Cr.P.C and
that it is a bonafide mistake.  
Having admitted that it is a mistake, it would
be a question of fact whether the said mistake is a bonafide one or a malafide
one tainted with oblique motive.
The Public Prosecutor stated that he consulted
some senior police officers, who expressed that no F.I.R can be issued in a
matter relating to Section 145 Cr.P.C.  The Public Prosecutor also stated that
issuing F.I.R by registering a crime in a matter relating to Section 145 Cr.P.C
is unknown to criminal procedure.  The Inspector of Police stated that he has
been working in the police department for the last 12 years and that 2 years ago
he received his promotion as Inspector of Police.  This Court understands a raw
junior police officer who is recruited into service in the latest batch
committing mistakes which are in the nature of blunders; and this Court could
not comprehend as to how a senior police officer of the rank of Inspector of
Police who had put in 12 long years of service in the department committed such
mistake which can be classified blunder.  Even though the Andhra Pradesh Police
Academy is conducting periodical training programmes and re-orientation courses
for all level of police officers in the State, some police officers like the
Inspector of Police herein are not able to even understand basics of Criminal
Procedure.  Whether he is a police officer or any other officer of the
Government, he  is governed by rule of Law.  The police officers who are in-
charge of maintenance of law and order and detection and investigation of crimes
are governed by the Code of Criminal Procedure, 1973 in their functions and it
is part of rule of Law to be followed by them.

3.      Section 154 (1) Cr.P.C deals with receiving and registering of information
relating to commission of cognizable  offences.
The said provision  reads as follows:

"154. Information in cognizable cases:-

(1) Every information relating to the commission of cognizable offence, if given
orally to  an officer in charge of a police station, shall be reduced to writing
by him or under his direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the substance thereof shall be entered in
a book to be kept by such officer in such form as the State Government may
prescribe in this behalf."

Information  as to commission of  non-cognizable offence can also be received by
the police officer and procedure for investigation of such information of non-
cognizable offence by a police officer is set out in Section 155 Cr.P.C as
follows:
"(1)    When information is given to an officer-in-charge of a police station of
the commission within the limits of such station of a non-cognizable offence, he
shall enter or cause to be entered the substance of the information in a book to
be kept by such officer, in such form as the State Government may prescribe in
this behalf, and refer the informant to the Magistrate.
2.      No police officer shall investigate  a non-cognizable case without  the
order of a Magistrate having power to try such case or commit the case for
trial.
3.      Any police officer receiving such order may exercise the same powers in
respect of the investigation (except the power to arrest without warrant) as an
officer in charge of a police station may exercise in a cognizable case.
4.      Where a case relates to two or more offences of which at least one is
cognizable, the case shall be deemed to be a cognizable case, notwithstanding
that the other offences are non- cognizable."

As per  Section 156 Cr.P.C any officer in-charge of a  police station may
investigate any cognizable case without order of a Magistrate if it occurred
within the limits of such police station.  
The first step in the investigation
after registration of a crime as per Section 157 Cr.P.C. is sending report by
Officer in-charge of the Police Station to the Magistrate who is empowered to
take cognizable of such offence upon a police report.
Further, such report has
to be sent to the Magistrate in the manner prescribed in Section 158 Cr.P.C.

Thereafter, Sections 159 to 172 Cr.P.C. deal with  procedure to be followed by
and powers of the investigating officer during the course of investigation of a
case.
After completing of investigation, the investigating officer shall
forward final report to the Magistrate under Section 173(2) Cr.P.C in the
prescribed form.
The above provisions of Cr.P.C starting from Section 154 to
173 Cr.P.C deal with receiving of information relating to cognizable or non-
cognizable cases, sending report thereof to the Magistrate in the prescribed
form (i.e., by way of forwarding registered FIR along with original information
to the Magistrate) and conducting and completing of investigation during which
the investigating officer is expected to collect both oral as well as
documentary evidence from witnesses, and finally the investigating officer is
expected to file his final report before the Magistrate whether the case is
liable to be charged for any offence or liable to be referred  under any head
prescribed by rules.

4.      Thus, above scheme under the Code of Criminal Procedure, 1973 envisages
that there must be commission of an offence and such offence may be a cognizable
offence or non-cognizable offence for receiving information by the Police
Officer under Section 154 Cr.P.C and sending the same to the Magistrate in the
prescribed form under Section157 Cr.P.C.
Without there being  commission of an
offence, the question of the police officer receiving information under Section
154 Cr.P.C or sending a report in the prescribed form to the Magistrate under
Section 157 Cr.P.C does not arise at all.

5.      Section 145 Cr.P.C does not contain a penal provision much less deal with
any type of offence whether  cognizable or non-cognizable.
Section 145 Cr.P.C
prescribes procedure to be followed where dispute concerning immovable property
or water is likely to cause breach of peace.
Under Section 145 (1) Cr.P.C, the
Executive Magistrate passes an order  in case the Executive Magistrate is
satisfied from "a report of a police officer or upon other information" that a
dispute likely to cause a breach of peace exists.
Thus, in proceedings under
Section 145 Cr.P.C., the police officer is the complainant or the informant to
the Executive Magistrate.
When the Police Officer is the complainant or the
informant and is not the officer  who receives  information, then question of
registering the said information under Section 154 Cr.P.C does not arise at all.
The police officer acting under Section  154 Cr.P.C is at the receiving end with
reference to the information.  
Whereas a police officer in proceedings under
Section 145 Cr.P.C is not at the receiving end, but is at the forwarding stage
with reference to the information.
Therefore, question of registering a crime
under Section 154 Cr.P.C and forwarding FIR to the Magistrate under Section 157
Cr.P.C. does not arise in case of proceedings  under Section 145 Cr.P.C.

6.      In case the police officer registers a crime under Section 145 Cr.P.C and
issues FIR, then the crime will be pending in the police station records until
final report under Section 173(2) Cr.P.C is sent by the police
officer/investigating officer to the Magistrate after conducting investigation.
No further investigation is contemplated by the police officer in proceedings
under Section 145 Cr.P.C; and the police officer is also not expected to file
any further final report under Section 173(2) Cr.P.C before the Magistrate in
proceedings under Section 145 Cr.P.C.
There is every possibility of misuse  of
power by an unscrupulous police officer in case a crime is registered   under
Section 145 Cr.P.C and it is kept pending  in the records maintained in the
police station, by way of forcing persons to come to the police station and
harassing them in the police station for extracting any pecuniary or offer
benefits. 
Therefore, this Court is of the view that even though provisions of
Cr.P.C do not contemplate registration of a crime and issuing of FIR by a police
officer  in proceedings relating to Section 145 Cr.P.C., giving FIR after
registering a crime in such cases  is not only out-side the realm of law and
would likely to lead to abuse of power  by certain unscrupulous  police
officers.  This cannot be permitted in law.

7.      No doubt, there are certain instances where crime is registered  and FIR
is issued even though no cognizable offence is present is  disclosed in the
information received by the police officer.  Such instances are like 'man
missing', 'woman missing', 'girl missing', 'child missing' etc., and also under
Section 174 Cr.P.C or under Section 176 Cr.P.C.  
 In these cases, though
initially no cognizable offence is disclosed in the information, still
registration of a crime and issuing of FIR are not viewed seriously because
ultimately, further enquiry or investigation may land in discovery of commission
of a cognizable offence.
In such  informations, one  can  reasonably suspect
commission of a cognizable offence which did not come to surface in the
information received by the police officer.
        
8.      Having regard to above discussion of various provisions of the Code of
Criminal Procedure, 1973, it follows that Inspector of Police,  Kurnool II Town
Police Station has exceeded his powers under the Code in issuing  FIR in Crime
No.91 of 2010 in a matter relating to proceedings under Section 145 Cr.P.C and
it is liable to be quashed on this ground alone irrespective of merits of
contents therein.

9.      In the result, the petition is allowed quashing FIR in Crime No.91 of 2010
of Kurnool II Town Police Station.  However, it is open to the police officer to
place information/report before the Mandal Executive Magistrate relating to this
subject matter.

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