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Key Takeaways

  • Section 156 (3) of CrPC provides that any magistrate, who can take cognizance of an offence under Section 190 of CrPC, can order the investigation of such cognizable offence by a police officer.
  • After a complaint has been filed before the magistrate, disclosing a cognizable offence, the Magistrate may either take cognizance under Section 190 (1) (a) of CrPC or order an investigation by the police officer under Section 156 (3) of CrPC.
  • A Magistrate does not have the power to direct the Central Bureau of Investigation (CBI) to investigate an offence under Section 156 (3) of CrPC.
  • Once an investigation has been started by an order u/s 156 (3) of CrPC, it cannot be tinkered with or hampered by the Magistrate by recalling his order.

Introduction

Section 156 of the Code of Criminal Procedure, 1973 provides provisions relating to Police Officer’s power to investigate cognizable cases. Section 156 (3) specifically provides that any magistrate, who can take cognizance of an offence under Section 190 of CrPC, can order the investigation of such cognizable offence by a police officer. The provision mentioned in Section 156 (3) comes in handy when the police refuse to register an FIR of a cognizable offence under Section 154. Under Section 156 (3), the Magistrate can direct the police to register an FIR and conduct a proper investigation. In this article, I will discuss the principles governing the order of investigation under Section 156 (3).

Section 190

Before starting with Section 156 (3), we first need to understand the provisions of Section 190, CrPC. This section provides provisions relating tothe taking of“ Cognizance of offences by Magistrates”. Cognizance, in simple words, means “the action of taking judicial notice”. A Magistrate, under Section 190, can take “judicial notice” of any offence:

(i) Upon receiving a complaint.

(ii) Upon receiving a police report (commonly called Chargesheet) under Section 173 (2), CrPC.

(iii) Upon receiving information from any person other than a police officer.

(iv) Upon Magistrate’s own knowledge.

So, a complaint can be filed under Section 190 if the police does not registeran F.I.R. in a case of cognizable offence.

Section 156 (3) and Section 190

Now, after a complaint has been filed before the magistrate, disclosing a cognizable offence, the Magistrate may either take cognizance under Section 190 (1) (a) or order an investigation by the police officer under Section 156 (3).

It has been clarified by the Hon’ble Supreme Court in the case of Madhubala v. Suresh Kumar [1997 CrLJ 3757 (SC)], that when the Magistrate directs an investigation under Section 156(3), the police have to register a cognizable case (F.I.R.). Then, after the investigation, the police are required to submit a police report [Section 173 (2)]. Based on such a report, the Magistrate will have the option to take cognizance under Section 190 (1) (b).

So, in cases where an investigation is directed under Section 156 (3), the Magistrate does not take cognizance of the offence until a Police Report has been submitted.[Dilawar Singh v. State of Delhi, (2007) 4 C LJ 4709 (SC)]

Principles governing the order of investigation under 156(3) CrPC

So now since we are clear with the Sections governing the order of investigation by the Magistrate, we can move forward and discuss the principles on which such order of investigation under Section 156 (3), CrPC must be based.

1. As a matter of convention, before approaching the Magistrate with a complaint under section 190 and before filing an application under section 156 (3), an application is to be sent to the SSP (Senior Superintendent of Police) of the district where the offence has taken place. If the SSP does not direct an FIR to be registered upon receiving the application, then this alternative procedure should be followed.

2. The word “any magistrate” in Section 156 (3) refers to Judicial Magistrate and not Executive Magistrate. So, Investigation into cognizable offence cannot be directed by an Executive Magistrate under Section 156 (3). [Bateshwar Singh v. State of Bihar, 1992 Cr LJ 2122 Pat]

3. A special judge appointed under the Prevention of Corruption Act, 1988 is not a Magistrate within the meaning of Section 156 (3). So, he cannot refer a complaint to the police for investigation under 156 (3). [Surendra Nath Swain v. State of Orissa, 2006 Cr LJ 1270 (Bom.)]

4. A Magistrate does not have the power to direct the Central Bureau of Investigation (CBI) to investigate an offence under Section 156 (3). [CBI v. State of Rajasthan, AIR 2001 SC 668]

5. It has been clarified in the case of Ram Babu Gupta v. State of UP (2001 CrLJ 3363 All) that the Magistrate has to apply his mind to the allegations in the complaint. After application of mind, the Magistrate can either direct the case for investigation under Section 156 (3) or directly take cognizance under Section 190.

6. The magistrate can reject an application under section 156 (3) if it turns out that the prosecution has been initiated with amotive of causing harassment and hence there is no sufficient ground for investigation of the case. [Shakuntala Devi v. State of UP, 2003 CrLJ 687 All]

7. While passing an order under section 156 (3), the Magistrate can include a direction with such order of investigation, that the police will not arrest anyone without first obtaining a warrant issued by such Magistrate in that case. [Masuriyadin v. Addl. Sessions Judge, 2002 Cr LJ 4292 All]

8. A Magistrate can pass an order of investigation under section 156 (3) even in offences that are exclusively triable by the Court of Sessions. [Gurubasappa v. State, 1979 Cr LJ 294]

9. Once an investigation has been started by an order u/s 156 (3), it cannot be tinkered with or hampered by the Magistrate by recalling his order. So, once an order for investigation has been passed, the Magistrate has no power to recall that order. [Kanai Lal v. State, 1975 Cr LJ 1143]

10. If the magistrate believes that the police report requires further investigation, an order in that regard can be made under section 156 (3). So, the magistrate can, in a sense, order re-investigation into a case under 156 (3). [Abhnandan Jha v. Dinesh Misra, AIR 1968 SC 117]

11. A magistrate can direct an investigation under section 156 (3) even at the post cognizance stage as the Magistrate has wide power under section 156 (3) read with Sections 156 (1), 2 (h) and 173 (8) of the Cr. P.C. [Vinubhai Haribhai Malaviya v. State of Gujarat, Criminal Appeal Nos. 478-479 of 2017]

12. An application under section 156 (3) must be accompanied by an Affidavit of the Complainant. [Babu Venkatesh v. State of Karnataka, Criminal Appeal No. 252 OF 2022]

Conclusion

In this way, Section 156 (3), Cr. P.C. provides an alternative route to aggrieved persons if the police refuse to register an FIR in their case. It provides the power of the Magistrate to pass an order of investigation directing the police to register an FIR and ordering the police officers to carry investigation in a particular case. This order of investigation under section 156 (3) of CrPC is governed by various principles which have been laid by the Courts from time to time.

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