No SDM can order cops to file FIR, says Supreme Court

No district or sub-divisional magistrate in the country can order police to register FIR on a private complaint, the Supreme Court said on Tuesday.

By this decision, the court made it clear that henceforth, no executive magistrate will have the power to direct police to register a citizen's complaint as the Code of Criminal Procedure (CrPC) provides such power only to judicial Magistrates and police officers.

A petition, by the owner of a private educational institution against whom a FIR was filed, prompted the court to examine this aspect of law. The FIR was filed on January 31, 2018 after an order was issued by the sub-divisional magistrate (SDM) in Uttar Pradesh's Unnao. A student had approached the SDM complaining about a college run by the petitioner named Naman Singh. She alleged that the college had duped her into taking admission in a law course although she later came to know that the college was unrecognised and permission to start the course was still in the pipeline.

Acting on the order, the UP Police registered a FIR under various provisions of the Indian Penal Code (IPC) dealing with cheating, criminal breach of trust and forgery against Singh, the institution owner. He challenged the FIR before the Lucknow bench of the Allahabad High Court, which turned down his plea. When the case was taken up in the Supreme Court, the judges spotted the error in law.

Finding it strange as to how a SDM could order a registration of a FIR, the bench of Justices RF Nariman and Navin Sinha quashed the FIR. It said, "In the scheme of the CrPC, an executive magistrate has no role to play in directing the police to register an FIR on basis of a private complaint lodged before him."

The judges cited Section 156(3) of the CrPC that empowers Magistrates to order an investigation and even direct lodging of a FIR. Here the word Magistrate refers to Judicial Magistrate and not Executive Magistrate as the bench also clarified, "The sub-divisional magistrate does not exercise powers under Section 156(3) of the Code."

"A reading of the FIR reveals that the police has registered the FIR on directions of the SDM, which was clearly impermissible in the law... the very institution of the FIR in the manner done is contrary to the law and without jurisdiction," the top court added.

It is not that the Executive Magistrate has no power to register a FIR. If a complaint comes to them on an issue over which he/she exercises administrative jurisdiction, he/she may order an administrative inquiry and once satisfied, could proceed to lodge FIR himself in the matter. It, however, remains to be seen whether the order of the court will have any impact on the arbitrary discretion by which District Magistrate detain persons under the Jammu and Kashmir Public Safety Act, 1978.