The Kerala High Court held that when a crime registered by the Police based on a complaint forwarded by the Magistrate under Section 156(3) of CrPC is pending investigation, it cannot be said that the person arrayed as an accused in the FIR is aggrieved by registering that crime.

The High Court clarified that the petitioner as an accused will not get locus standi to challenge that accusation, until investigation is carried out.

A Single Judge Bench of Justice Sophy Thomas observed that “Before conducting investigation as to whether the petitioner had committed a cognizable offence or not, and before a final report is filed charging him for the offences alleged, in normal course, he cannot challenge the investigation undertaken by Police, which was so directed by the Magistrate under Section 156(3) of CrPC”.

Advocate K.S Praveen appeared for the Petitioner, whereas Advocate Aswini Sankar appeared for the Respondent.

The brief facts of the case were that an FIR was registered based on a private complaint preferred by the third respondent before JFCM, which was forwarded to SHO for investigation and report under Section 156(3) of CrPC. The petitioner submitted that, the transaction involved is purely civil in nature, and so, criminal prosecution will not lie based on that complaint. So, he prayed for quashing of the FIR and the proceedings pursuant thereto.

After considering the submission, the Bench emphasized that investigation is the province of police, and in order to find out the truth, they have to investigate the case by collecting materials, without any interventions or inhibitions.

On investigation, if commission of a cognizable offence is made out, the investigating officer is bound to file final report charging the offender for the offences committed by him, added the Bench.

The Bench elaborated that when no offence is made out during investigation, then also the investigating officer will send a final report under Section 173(2) of CrPC, to the jurisdictional court, with a request to close it treating the complaint/First Information Statement, as false or on mistaken fact.

The Bench also clarified that when a complaint is investigated by Police, on the basis of a direction given by the Magistrate under Section 156(3) of CrPC, even if the Police refer the case as false or mistaken, then also the complainant can pursue the matter further, as per Section 200 of CrPC.

“When investigation undertaken by Police as ordered by the Magistrate under Section 156(3) of Cr.P.C. is in progress, this Court cannot interfere with the investigation, which is a statutory function exercised by Police”, added the Bench.

In the present case, the Bench noted that whether the materials collected are sufficient to charge the accused for the offences alleged is yet to be decided, and only if final report is filed, charging the petitioner for a cognizable offence, then only the Magistrate can take cognizance of it.

The High Court therefore concluded the petition as premature, and held that if the petitioner is aggrieved by the order of the Magistrate in taking cognizance of the offence, he will get locus standi to challenge the same, on legally sustainable grounds.

By merely registering FIR, no injury has been caused to the petitioner, added the Court.

Cause Title: Udayakumar v. State of Kerala and Ors. [Neutral Citation: 2023/KER/73844]

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Kerala High CourtJustice Sophy Thomas

Pankaj Bajpai