Misuse of Police Powers by not naming an accused in FIR despite orders

724 votes

When an FIR is registered pursuant to an order under Section 156(3) CrPC, the police are duty-bound to register the case as per the allegations disclosed in the complaint. The Investigating Officer has no discretion to exclude or delete named accused at the stage of registration. However, during investigation, the IO may form an opinion and can drop persons if no material is found, subject to filing of a proper report. The Supreme Court in HDFC Securities Ltd. v. State of Maharashtra (2017) and Bhagwant Singh v. Commissioner of Police (1985) has held that investigation includes the power to array or drop accused, but such power operates only during investigation, not at FIR registration stage.

Advocate Vinod Todiwan LawRato

501 votes

After BNSS, 2023, the position remains the same. On a Magistrate’s order under Section 175(3) BNSS (earlier 156(3) CrPC), police must register FIR and cannot exclude named accused at that stage. During investigation, they may drop persons if no evidence emerges, subject to judicial scrutiny.

Advocate Pankaj Bajaj LawRato

721 votes

when a Magistrate issues an order under Section 156(3) of the CrPC. It is a settled principle of law that the Investigating Officer does not have the discretion to exclude any accused person or omit specific allegations at the stage of registering the First Information Report. When a Magistrate, after applying their judicial mind, finds that the complaint discloses a cognizable offence and directs the police to investigate, the police are duty-bound to register the FIR exactly as per the contents of the complaint or the specific directions in the order. The police cannot act as a super-judicial authority at the registration stage to decide which person should or should not be named in the FIR; their role at this juncture is strictly ministerial and mandatory. The leading authority on this is the Supreme Court judgment in Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627, which established that once a Magistrate directs an investigation under Section 156(3), it is the statutory duty of the officer-in-charge to register the FIR and investigate the matter. Further, in Hemant Yashwant Dhage v. State of Maharashtra (2016) 6 SCC 273, the Apex Court reiterated that the police must register the FIR and cannot circumvent the Magistrate's order by choosing to ignore certain accused or facts. While the officer has the discretion during the actual investigation to find that there is no evidence against a particular person and subsequently exclude them in the Final Report or Chargesheet, they cannot exercise this discretion at the initial stage of lodging the FIR. Excluding an accused named in the Magistrate's referral order is a direct violation of judicial directions and amounts to a failure of statutory duty. If the officer has registered the FIR but excluded a specific accused, you have several effective legal remedies. First, you should file a Compliance Application or a Protest Application before the same Magistrate who passed the Section 156(3) order. Under the law laid down in Sakiri Vasu v. State of Uttar Pradesh (2008) 2 SCC 409, the Magistrate has the implied power to monitor the investigation and ensure it is conducted properly. You can request the Magistrate to direct the police to rectify the FIR and include the excluded name. If the Magistrate fails to act or if the trial court proceedings are moving at an unreasonably slow pace, you can approach the High Court by filing a Writ Petition for Mandamus under Article 226 of the Constitution of India. The High Court has the power to issue a Writ of Mandamus to compel the police to perform their public duty and can even direct the registration of a fresh or supplementary FIR to include the missing accused if it is found that the police acted with mala fide intent.

Advocate Moksh Jain LawRato

657 votes

No, the Police/IO has no discretion to exclude any accused when registering an FIR under Section 156(3) CrPC. They are legally bound to register the case exactly as per the Magistrate's order. Discretion only applies during the investigation to determine if evidence exists against them. In Lalita Kumari v. Govt. of UP, the Supreme Court mandated FIR registration for cognizable offenses. Specifically, in HDFC Bank Ltd. v. J.J. Mannan (2010), it was held that police must comply with the Magistrate's directions without making unilateral deletions or modifications.

Advocate Pankaj Bajaj LawRato