Practice and Procedure U/S 156(3), 190, 200, 201 of Criminal Procedure Code
Whether the power of the Magistrate to direct investigation U/s 156(3) of the Cr.P.C involves incidental power to direct the proper investigation and to monitor the investigation?
The Petitioner has to comply with Section 154(3) of CrPC before invoking the Jurisdiction u/S 156(3) CrPC for a direction.
There is difference between investigation and monitoring. The Magistrate can monitor the investigation. He can fix time limit for filing the report. He can also monitor whether the order of the Court is being properly followed or not. However, the Magistrate can not direct the police officer to do proper investigation which is nothing but interference in the investigation. There are several provisions to monitor investigation. It is common experience that police do not properly investigates. This aspect has been elaborately discussed by the Hon’ble Apex Court in the case of Sakri Vs. State of U.P., (2008) 2 see 171. It is observed that Magistrate has power to ensure that his order under Sec. 156(3) is complied with.
The Hon’ble Supreme Court Sakiri Vasu v. State Of Uttar Pradesh And Others in 2008(2) SCC 409: –
“If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Printed by Page 5 of 8Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.”
The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. The Hon’ble Supreme Court in Mohd. Yousuf vs. Smt. Afaq Jahan & another,( AIR 2006 SC 705), observed that, any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code of Criminal Procedure. If he does so, he need 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 the first information report.
Whether a supporting Affidavit is needed while filing an application u/s 156(3) of Cr.P.C ?
Yes. The Hon’ble Supreme Court, after extensively delibrating on the subject matter of under Section 156(3) CrPC in Priyanka Srivastava And Another v. State Of Uttar Pradesh And Others (2015(6) SCC 287) held as follows: “We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
When preliminary is needed before registering an FIR ?
The Hon’ble Supreme Court of India discussed the judgement delivered in case of Lalita Kumari Vs. State of U.P. and reflected as to what type and in which case preliminary inquiry is to be conducted, will depend on the facts and circumstance of each case.
The category of cases in which preliminary inquiry may be made are as under:-
(a) Matrimonial disputes/family disputes.
(b) Commercial offences.
(c) Medical negligence cases.
(d) Corruption cases.
(e) Cases where there is an abnormal delay/laches in initiating criminal prosecution for example over 3 month’s delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry
Whether a Magistrate can order further investigation to police after filing charge-sheet U/S. 173 (1) of the Cr.P.C ?
The Magistrate can direct further investigation or re-investigation under Section 156(3) when the investigation
so far done was incomplete or not satisfactory.
The Magistrate can also monitor the investigation to ensure proper investigation. When there is no sufficient material on record to take cognizance of the offence, the Magistrate may refer the matter to the police U/s.156(3) of Code of Criminal Procedure, for the purpose of investigation.
Whether a Magistrate can direct investigation by police U/s 202 of Cr.P.C. where the offence complained is triable exclusively by the Court of Sessions?
No such order can not be passed regarding the investigation. by police U/sec. 202 of Cr.P.C. The complainant and his witnesses if any have to be examined on oath. By the amendment in 2006 in Sec. 202 of Cr.P.c. now it has been made incumbent on the Magistrate to hold inquiry or investigation as the case may be when accused resides at a place not beyond the area in which he exercises his jurisdiction.
The prime difference between the investigation under section 156(3) of the Cr. P. C and inquiry by magistrate or investigation by police in terms of section 202 of Cr P C is that, for the investigation under section 156(3) registration of FIR in police station is must, however in inquiry or investigation under section 202 no registration of FIR is needed. [Devarapalli Laxminarayana Reddy & others Vs. V. Narayana Reddy and others [(1976)3 SCC 252]
While dealing with the complaint, the Magistrate is not bound to direct investigation under Section 156(3) of the Code.
He may direct the investigation under Section 156(3) of the Code or take the cognizance of the complaint. But it is not open to the Magistrate to take cognizance of the complaint as well as direct the investigation under Section 156(3) of the Code of Criminal Procedure Code.
In the case triable by Court of Sessions, the Magistrate on the receipt of the complaint instead of conducting the inquiry himself under Section 202 Cr.P.C. may order investigation by police under Section 156(3) Jogendranath Vs. State of Orissa (2004 (20) AIC 592) but in Nariji Ram Vs. State of M.P. (2008(4) Crimes 292 MP.) contrary view was taken. Magistrate has no jurisdiction to direct investigation under 156(3) when offenses are exclusively triable by court of Sessions. He has to make inquiry himself under Section 202 of the Cr.P.C. Laxmidhar Vs. State of Orissa [2004 Cr.L.J. 2816].
Once an order U/sec. 156(3) of Cr.P.C.is passed, whether such order can be called back by Magistrate?
Such order can not be called back because by the order of Magistrate firstly the police registers the crime and Magistrate can not quash it. But the Complainant can withdraw the complaint.
Whether Magistrate can issue process without the police report only on the basis of the material placed before him?
Yes. Purpose of Section 202 Cr.P.c. is only to collect additional evidence to proceed further. The Magistrate may
under this Section, can either issue the summons or order inquiry U/sec. 202.
Whether Magistrate can take cognizance of an offence U/sec. 138 of Negotiable Instrument Act, on police Report?
No. The provisions of N.!. Act do not permit this procedure. The Magistrate can reject the complaint if the accused is
ready to deposit the disputed amount. U/sec. 142 of the Act, written complaint is mandatory. Anilkumar Vs. M.K.Iyappa, 2013 Vol.(lO) see P 705.
Whether the Magistrate has been invested with powers to have control over investigation process ?
The role of Magistrate is very important. He is first Judicial Authority at Taluka place who can exercise his powers and provisions of 156(3) has been incorporated as part of Scheme of Chapter of Cr.P.c. If investigation of offence is required recovery or discovery of incriminating articles, arrest of accused for investigation, evidence of Expert such as handwriting expert, Forensic expert etc. then it can be done by the police which can not _~e done by the Court or Magistrate. The order under this section shall not not in strait jacket formula. The Magistrate shall apply mind before passing order. He should be careful and rational while passing order under this Section. It should not be for shrinking the responsibility for taking cognizance U/sec. 190. The above aspect is observed by the Apex Court in the case of Lalita kumar Vs. State of U.R, 2013 ALL MR (Cri)4444 (SC).
In State vs Bhajan Lal,(AIR1992 SC 604), the Hon’ble Supreme Court held that “The field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control so long as the investigation proceeds in compliance with the provisions relating to investigation.”
A Magistrate cannot interfere with the investigation by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officerincharge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same though he should not himself investigate. UOI vs. Prakash P.Hinduja [2003(6)SCC195])
The Magistrate can order reopening of the investigation even after the police submits the final report, as observed by the Hon’ble Apex Court in State of Bihar vs. A.C. Saldanna [AIR 1980 SC 326].
Whether Magistrate can sou-moto take cognizance of any offence if committed in his presence ?
Yes, the Magistrate in person can take cognizance of any offence if committed in his presence. He himself may file complaint or can direct his subordinate to file such complaint. Even in office or outside the office he can use this power. A Magistrate is duty bound for 24 hours. Section 44 of Cr.P.e. is clear on this aspect. The conditions precedent are laid down U/sec. 154(3) of Cr.P.C. for taking cognizance sou-moto.
Remedy against rejection
The order under 156(3) is a judicial order and he is amneble to revision Ajay Malviya Vs. State of U.P. (2001 Cr.L.J. 303 ALL DB), but in some cases it was held that the order is interlocutory and not a final order. Hence, revision is not maintainable Gangadhar Vs. State of Orissa (2008 Cr.L.J. 839 Orissa.)
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