Supreme Court stays Allahabad HC directives for govt's legal opinion before registering FIR for cheating, forgery

New Delhi: The Supreme Court has stayed the recent directives issued by the Allahabad High Court directing the police to seek the government’s legal opinion before registering a FIR for cheating, fraud or criminal breach of trust in cases where it appears that it is a civil dispute.

A bench of Justices CT Ravikumar and Sanjay Karol issued the notice on the plea of the Uttar Pradesh government and stayed certain paragraphs of the high court's judgement where slew of directions were issued to the authorities.

"Issue notice, returnable in four weeks. Operation and implementation of paragraphs 15 to 17 of the impugned order dated April 18, 2024 passed in Criminal Misc. Writ Petition no…stand stayed till the next date of listing," the bench had directed in its order dated August 14.

In the apex court, the Uttar Pradesh government has challenged the high court's order as it also warned of contempt action for non-compliance of the order.

The high court passed the order while hearing a civil dispute related to title and ownership of land in which the magistrate has directed the police to register an FIR for fraud, cheating and criminal breach of trust.

The high court while expressing concern that civil disputes are increasingly being given colour of criminal cases issued slew of directions to the authorities and police.

In paragraph 15, which was stayed by the top court, the high court had said, "Where an F.I.R. is sought to be registered under Sections 406 (criminal breach of trust), 408 (criminal breach of trust by clerk or servant), 420 (cheating)/467 (forgery), 471 (using forged document fraudulently) IPC, wherein, on the face of it, it appears that there is a commercial dispute or a civil dispute or a dispute arising out of different types of agreements or partnership deeds, etc. before registration of the FIR, an opinion will be taken in all such cases from the concerned district government counsel/deputy district government counsel in their respective districts and only after obtaining a report, the FIR will be registered. Such opinion will be reproduced in the concluding part of FIR." The high court had directed the Director General of Police to issue necessary instructions to all the SSPs in the state who will further instruct all the SHOs of their respective police stations to ensure that prior to registration of the FIR where a civil/commercial dispute is apparent, the opinion of the district/ deputy government counsel should be taken at the pre-cognizance stage.

It had said the director prosecution of Uttar Pradesh will also ensure necessary directions are issued to all government counsels.

The high court had said, "It is made clear that in all cases where first information reports, which are to be registered after May 1, 2024, if no such legal opinion is taken by the concerned police official before registration of the FIR…they may be liable to contempt proceedings." It, however, said that court's direction will not apply where the FIRs are registered on direction of competent court under Section 156(3) CrPC as these directions relate to pre cognizance stage.

Section 156(3) of CrPC empowers a magistrate to order registration of FIR and direct investigation in any cognizable case relating to offence committed within the area of his territorial jurisdiction. In its paragraph 16, of the verdict, which was also stayed by the top court, the high court had said, this court is also experiencing that the trial courts while exercising power under Section 156 (3) CrPC are virtually acting as post office by just forwarding the complaint to concerned police officer with direction to register the FIRs.

This is not the mandate of Lalita Kumari's case of the apex court, the high court had observed.

In Lalita Kumari verdict, the apex court in 2014 said that the registration of FIR is mandatory under Section 154 of the CrPC, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

In paragraph 17 of the verdict which was also stayed by the apex court, the high court had directed all the magistrates of Uttar Pradesh to exercise power under Section 156(3) for registration of FIR/s only after a satisfactory note "after careful perusal of contents of the entire complaint and as per affidavit of informant/ complainant no prior civil dispute is pending inter se parties before any court of law, therefore, the court is convinced that commission of cognizable offence is made out."