Opportunity of hearing to accused before registration of FIR against him or...

Opportunity of hearing to accused before registration of FIR against him or before 156(3) Cr.P.C. order

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A complaint for the offence of cheating under Section 420 IPC was filed against me to the court and under Section 156(3) of Cr.P.C. the court directed investigation by police, whereupon the police registered an FIR against me. However, no opportunity was given to me by the court or by the police to explain before ordering investigation or before registering the FIR. I have already lost my reputation since people known to me have learnt about this FIR, even though the complaint against me is absolutely false. How can an FIR be directed to be registered or be registered without hearing my side of the story? Is it valid? Can I challenge the registration of FIR?

Answer: The law is well-settled on this issue that no opportunity, of hearing or of explaining the other side of the story, needs to be given to the suspect or the accused before registration of a First Information Report (FIR) against him. At the stage prior to FIR registration, the accused does not have a right to be heard with regard to the question whether to register the FIR or not. In fact, on the other hand, if the complaint given to the police discloses commission of a cognizable offence, then immediate registration of FIR is mandatory, as per the recent decision of a 5-Judge Constitution Bench of the Supreme Court in the case of Lalita Kumari  v.  Govt. of U.P., (2014) 2 SCC 1. If the police refuses to register the FIR immediately and promptly on receipt of such complaint, the concerned police officer may himself have to face action for such delay.

In the case of Anju Chaudhary v. State of U.P., (2013) 6 SCC 384, the Supreme Court specifically rejected the contention that opportunity of hearing should be given to the accused before registration of FIR in view of principles of natural justice (audi alteram partem) by observing as under:

“The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall withstand judicial scrutiny. The purpose of the Criminal Procedure Code and the Penal Code, 1860 is to effectively execute administration of the criminal justice system and protect society from perpetrators of crime. It has a twin purpose; firstly to adequately punish the offender in accordance with law and secondly, to ensure prevention of crime. On examination, the scheme of the Criminal Procedure Code does not provide for any right of hearing at the time of registration of the first information report. As already noticed, the registration forthwith of a cognizable offence is the statutory duty of a police officer-in-charge of the police station. The very purpose of fair and just investigation shall stand frustrated if pre-registration hearing is required to be granted to a suspect. It is not that the liberty of an individual is being taken away or is being adversely affected, except by the due process of law. Where the officer-in-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons: firstly, the Code does not provide for any such right at that stage, secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage.”

In the case of Union of India v. W.N. Chadha, 1993 Supp (4) SCC 260, the Supreme Court observed as under:

“If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.”

Similarly, in the case of Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407, holding that a suspect has no indefeasible right of being heard prior to initiation of the investigation, particularly by the investigating agency and that even the scheme of the Code of Criminal Procedure does not admit of grant of any such opportunity, the Supreme Court went on to observe as under:

“There is no provision in CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialised agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners.”

In the above case of Anju Chaudhary v. State of U.P., (2013) 6 SCC 384, the Supreme Court observed that no opportunity of hearing to the suspect / accused is contemplated even under Section 156(3) of Cr.P.C. under which a magistrate can direct investigation by police:

“While examining the abovestated principles in conjunction with the scheme of the Code, particularly Sections 154 and 156(3) of the Code, it is clear that the law does not contemplate grant of any personal hearing to a suspect who attains the status of an accused only when a case is registered for committing a particular offence or the report under Section 173 of the Code is filed terming the suspect an accused that his rights are affected in terms of the Code. Absence of specific provision requiring grant of hearing to a suspect and the fact that the very purpose and object of fair investigation is bound to be adversely affected if hearing is insisted upon at that stage, clearly supports the view that hearing is not any right of any suspect at that stage.”

A small concession, with some riders, in the following situation was, however, given by the Supreme Court in the above Anju Chaudhary case, by observing as under:

“Of course, situation will be different where the complaint or an application is directed against a particular person for specific offence and the court under Section 156 dismisses such an application. In that case, the higher court may have to grant hearing to the suspect before it directs registration of a case against the suspect for a specific offence. We must hasten to clarify that there is no absolute indefeasible right vested in a suspect and this would have to be examined in the facts and circumstances of a given case. But one aspect is clear that at the stage of registration of a FIR or passing a direction under Section 156(3), the law does not contemplate grant of any hearing to a suspect.”

In view of the aforesaid, it should be clear that no opportunity of hearing could have been given to you by the magistrate court while ordering an investigation against you or by the police before registration of the FIR.

However, you would be getting sufficient opportunity of explaining your side of the story to the police during their investigation. The police do not generally have any option but to comply with the order under Section 156(3) Cr.P.C. to register the FIR if directed by Magistrate. But, the police has the full freedom to thoroughly investigate the case. So, it is advisable to give evidence of your side of the story to the police. Likewise, it is not necessary that in every case the police would be immediately arresting the accused. It all depends on the facts and circumstances of the case. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law.

You also have the option of file a petition for quashing of the FIR or for discharge in the criminal case, depending on the facts of the case, if you are sure that no case is made out against you. Also see: Quashing of charge sheet by High Court or discharge by trial court – what is preferable after filing of charge sheet?

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