Registration Of FIR In Special Act is Allowed , Magistrate will Take Cognizabnce Only After Authorise Officer Report.

 POLICE WILL REGISTER FIR AND INVESTIGATE. REPORT WILL BE SUBMITTED TO MAGISTRATE AND AUTHORISE OFFICER OF SPECIAL ACT. OFFICER WILL SEND CONSENT TO MAGISTRATE AND THEN MAGISTRATE WILL TAKE COGNIZANCE

In Jeevant Kumar Raut v. CBI, a question arose as to whether police can register an FIR and investigate an offence under §18 and §19 of the Transplantation of Human Organs and Tissues Act, 1994 (TOHO), simply because they are cognizable, notwithstanding §22 of TOHO, which provides that a court can take cognizance of an offence under this act only on a complaint made by the appropriate authority. Offences mentioned §18 and §19 of TOHO are cognizable and non-bailable as per the classification made in Part II of the I Schedule of the Code. The Supreme Court held that the investigation in terms of §13(3)(iv) of TOHO, thus, must be conducted by an authorized officer. The officer in-charge of a police station cannot register an FIR and he had no other option but to hand over the investigation to the appropriate authority. It was further held that §22 of TOHO prohibits the Court from taking of cognizance of an offence under the said Act, except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. The police officer, although, has all the powers of an investigating agency, it has been statutorily prohibited from filing a police report.

Further, in Institute of Charted Accountants of India v. Vimal Kumar Surana, a case was registered by the police and chargesheet was also filed against the accused for offences under IPC and §24 and 26 of the Chartered Accountants Act, 1949. In this case, the Supreme Court has fallen in line with the view taken in Jeewan Kumar Raut’s case and held that §28 of the Charted Accountant Act, 1949, provides a blanket prohibition on a Court from taking cognizance of any offence under the said Act except on a complaint made by or under the order of the Council or of the Central Government. Therefore, the Police cannot register a case, investigate the same and file final report under §173 of the Code for the offence committed under §24 and 26 of the Chartered Accountants Act, 1949.

Furthermore, in State (NCT of Delhi) v. Sanjay, the Supreme Court has taken note of numerous conflicting views taken across various High Court on the questions as to whether the Police can register a case in respect of offences under the Mines and Minerals (Development and Regulation) Act, 1957, (MMDR Act), because the offences are cognizable, and whether the Court can take cognizance on a police report dehors Section 22 of the MMDR Act. §22 of the MMDR Act states that no court shall take cognizance of an offence except upon complaint in writing. Indubitably, many of the offences under the MMDR Act have been classified as cognizable under the Code as well. The accused was sought to be prosecuted both under MMDR Act and IPC. The Supreme Court held that §22 of the MMDR Act is unfettered from the procedure prescribed under the Code. The Police officer can very well register a case, investigate the same and submit a final report under §173 of the Code. Based upon the said police report, the concerned Magistrate can only take cognizance of an offence committed under the IPC alone. The Magistrate cannot act upon the final report and take cognizance for the offence committed under the MMDR Act because of the bar contained under §22 of the MMDR Act which provides for taking cognizance by the Court upon a complaint and not otherwise.

Also, in Kanwar Pal Singh v. The State of U.P. &Anr., an issue arose before the Supreme Court pertaining to validity of a cognizance taken by a Magistrate based upon a police report for the offence committed under § 21(2) of the MMDR Act, § 379 of the IPC and §3 and §4 of the Prevention of Damage to Public Property Act. The Court observed that the offences under §21 read with §4 of the MMDR Act and §379 of the IPC are exclusive of each other. Based upon the said finding, it was further observed that the prosecution and cognizance under §21 read with §4 of the MMDR Act was not justified in the absence of compliant filed by a person duly authorized under the MMDR Act. Although the prosecution and cognizance of the offence under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act was in accordance with law.

Recently, in Union of India v. Ashok Kumar Sharma & Ors., the Supreme Court vide judgment and order dated 28.08.2020, has held that with respect to offences mentioned under Chapter IV of the Drugs and Cosmetics Act, the Police cannot arrest the accused, register FIR, investigate the same and file chargesheet under Section 173 of the Code because of the bar contained under Section 32 of the said Act. Only the competent person/authority mentioned under Section 32 of the Act, can file a complaint based upon which cognizance of the offences mentioned under Chapter IV of the Act can be taken by the concerned Magistrate.

Supreme Court of India

Jayant vs The State Of Madhya Pradesh on 3 December, 2020

13. iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In­charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In­charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.   https://indiankanoon.org/doc/144340771/

 

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE BEFORE HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH ON THE 28th OF JUNE, 2022 MISC. CRIMINAL CASE No. 32126 of 2022 Between:- RAMESH MENDOLA S/O SHRI CHINTAMANI MENDOLA OCCUPATION: SOCIAL SERVICE 367/7, NANDA NAGAR, INDORE. (MADHYA PRADESH) .....PETITIONER (BY SHRI V.K. JAIN, SENIOR COUNSEL WITH MS. VAISHALI JAIN) AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THROUGH THROUGH POLICE STATION SANWER. INDORE (MADHYA PRADESH) .....RESPONDENTS (BY SHRI R.S. BAIS, GOVT. ADVOCATE) Reserved On : 04/07/2022      

  https://www.livelaw.in/pdf_upload/mp-hc-fir-428153.pdf

 

Section 195(1) of Cr.P.C. only says that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. There is nothing in the said provision which debars registration of FIR. It has nowhere stated that the aforesaid written complaint should be filed before the Court.