Magistrate has treated my case as a complaint and refused to direct an investigation by the local police. I have filed an application to the magistrate under Section 156(3) of the code of criminal procedure. After more than nine months the magistrate has ordered to lodge a complaint instead of investigation. I have CCTV recording to prove that the accused along with some other person entered my house at night and stole my belongings including some jewelry. On the basis of those CCTV recordings the magistrate has written in order that the facts are in the knowledge of the complainant, and he has sufficient evidence to prove the case therefore, it shall be treated as complaint instead of direction to register FIR. I am aggrieved from the order of the court.
Asked from: Uttar Pradesh
Based on the facts presented, it is inferred that the accused have committed a cognizable offence by entering a dwelling house at night and committing theft, which is punishable under Section 380 of the Indian Penal Code, with imprisonment for up to seven years.
The magistrate appears to have overlooked a crucial aspect when deciding your application. Specifically, the number of accused is more than one, with some still unidentified, and the stolen property remains unrecovered.
Under these circumstances, an investigation by the police, rather than a complaint, would be more appropriate. The police, as a specialised agency, possess the necessary authority to arrest suspects, recover property, and identify those involved.
It also appears that the magistrate processed your application in a routine and mechanical manner. In Suresh Chandra Jain vs. State of M.P. and Another (2001) 2 SCC 628, the Supreme Court emphasised that a magistrate must apply judicial discretion and should not act in a mechanical or casual manner while deciding an application under Section 156(3) of the Cr.P.C.
The magistrate's decision to direct the police to register an FIR and conduct an investigation, or to treat the application as a complaint, must be reasoned and supported. In Anmol Singh vs. State of U.P. AIR Online 2021 All 632 and Lala Ram vs. State of U.P. 2020, the Allahabad High Court similarly held that
A magistrate must apply judicial discretion in such decisions. An investigation and FIR registration should be directed when the complainant does not know the names of all accused, cannot gather the evidence required to support the case, or where recovery of property can only be facilitated by police action.
The Supreme Court, in the Lalita Kumaricase, ruled that an FIR must be registered if the information discloses the commission of a cognizable offence. In light of these considerations, you should file a petition under Section 528 of the Bhartiya Nagrik Suraksha Sanhita2023 in the High Court, seeking to quash the Magistrate’s order and have the case reconsidered.
Related: Revision against the order of investigation passed under Section 156 (3) crpc
