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Joy Bose   22 March 2020

Police not taking action under crpc section 156(3)

Hello,

What if the police are not taking action under section 156(3) Crpc where a magistrate is empowered to investigate the case? To whom should I approach if the action is not being taken? What is the higher authority to whom I should approach?



 10 Replies

TGK REDDI   22 March 2020

Whether you or anybody lodged a Complaint with the police or not, you, I think, have no much say in the matter.

A better option before you is, I think, to move the Court under Section 190 of The Criminal Procedure Code, 1973.

SHIRISH PAWAR, 7738990900 (Advocate)     22 March 2020

Dear querist,

If police is not taking action and registering the case you can move to court and file private complaint against the accused.

Regards,

 

Akshay   22 March 2020

Hi

Thank you for your question

As you have said nothing is happening you can also rushes to High Court to file a writ petition or a petition under section 482 CrPC.

Hope this will help you

Best regards,

Akshay Gupta

Ramsanthanakudumbanar (Advocate-Director)     23 March 2020

Initiate contempt proceedings under contempt act after sending a caution Legal notice....

T. Kalaiselvan, Advocate (Advocate)     23 March 2020

If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.

 

T. Kalaiselvan, Advocate (Advocate)     23 March 2020

Section 156(3) is very briefly worded. The powers of Magistrate are not expressly mentioned in section 156 (3) of Cr.P.C. If that be so, a paucity will be crept mind that whether there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same or not.

That too, an aggrieved person has right to claim that the offence he alleges be investigated properly. However, The Hon'ble Supreme Court held in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency.

T. Kalaiselvan, Advocate (Advocate)     23 March 2020

- It has been held by The Hon'ble Apex Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that ''no one can insist that an offence be investigated by a particular agency''. This view was agreed in Sakiri Vasu vs State Of U.P. And Others.

- In Sakiri Vasu vs State Of U.P. And Others, it was further held that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

T. Kalaiselvan, Advocate (Advocate)     23 March 2020

Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed:

The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.µ.

- The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT[1] (vide para 17).

It was also observed in Sakiri Vasu vs State Of U.P. And Others that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.

T. Kalaiselvan, Advocate (Advocate)     23 March 2020

Section 156 (3) states:

Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.µ

The words `as above mentioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.

- Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

- The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna.

- - It was further held that ''Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation''.- It was further held that '' It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution''.

Rohit Krishan Naagpal (Advocate)     24 March 2020

For a better understanding section 154 CrPC is extracted below:

Information in cognizable cases

(1) Every information relating to the commission of a cognizable offense, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offense, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offense.

While recording FIR the police u/s 154 Cr.P.C , they  has to record the information despite he being unsatisfied by its reasonableness or credibility. Lalita Kumari v. Govt. of U.P. 2014 Cr.LJ 470(SC).
 
  • Statutory Remedies
    • Under section 154(3) CrPC – When an informant's right to register an FIR is refused, he/she can approach the Superintendent of Police and submit the substance of such information in writing by post. If the Superintendent of Police is satisfied that such information discloses the commission of a cognizable offense then, he might investigate the case himself or direct an investigation to be made by any police officer subordinate to him.
    • Under section 156(3), read with section 190 CrPC – If an informant remains unsatisfied even after pursuing the remedy under section 154(3), he/she can further pursue the remedy mentioned under section 156(3) read with section 190 CrPC.
    • This is a different channel to get the FIR registered. This remedy is similar to the process of registering a complaint for non-cognizable offenses. As through this channel, a magistrate first take cognizance of an offense under section 190 and then order for consequential investigations under section 156(3).
    • Under section 200 CrPC – A complaint can be submitted to the magistrate orally or in writing under section 200 of the CrPC. After the submission of a complaint, the magistrate will conduct a hearing, deciding upon the issue of cognizance. In this channel, the complainant and the witnesses thereof are examined on oath in front of the magistrate.
  • Judicial remedy- Mandamus is one of the prerogative writs issued by the superior Courts (High Court or Supreme Court), which is in the form of a command to the State, its instrumentality or its functionaries as the case may be, to compel them to perform their constitutional/statutory/public duty7. Hence, a writ of mandamus can be filed under Article 226 or Article 32 of the Constitution of India, directing the police officials to perform their duty and register an FIR.

    Further the apex court in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, held as follows:

    "2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

    3.We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation."

    The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) CrPC has also been recognized in the decision of the apex court in the case of T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu's case (supra) it has been observed as follows:

    "12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.)"

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