The J&K&L High Court, recently while considering a Petition under Section 482 CrPC came to decide a question as to whether once the matter is referred to the police for investigation under Section 202 Cr.P.C, is a Magistrate competent to direct the registration of FIR or not?

The Petitioners in the instant case prayed for the quashing of an FIR which came to be registered pursuant to the order of a Judicial Magistrate Ist Class, Pattan. What transpired in the case was that the Respondents had approached the Judicial Magistrate with a complaint against the Petitioners seeking registration of an FIR, however, the Judicial Magistrate ordered an enquiry under Section 202 CrPC, and upon receipt of the police report, directed registration of an FIR against the Petitioners.

The Petitioners contended before the High Court that once the Magistrate had directed the SHO to conduct enquiry under Section 202 of the Code of Criminal Procedure, subsequent direction for the registration of FIR could not have been issued.

The Court while dealing with the issue observed that the law is settled on the point that once the magistrate orders an enquiry /investigation under Section 202 CrPC and enquiry /investigation report is submitted before the Magistrate , the Magistrate can either issue the process against the accused or dismiss the complaint if no offence is made out but in no manner, the magistrate can direct registration of FIR under sec 156(3) CrPC.

The Court held that the direction to register an FIR can be issued under Section 156(3) CrPC only at pre-cognizance stage but once the cognizance has been taken, then, the Magistrate has to proceed either in terms of Section 202 CrPC or Section 204 CrPC and if no offence is made out then to dismiss the complaint in terms of Section 203 CrPC.

The Court further held that ordering an enquiry by the Police without recording the statement of the complainant or his witness, is contrary to the mandate of Section 200 Cr.P.C. The Court, thus, allowed the Petition and quashed the impugned FIR along with all the consequential proceedings.