The power under Section 156 (3) of the Criminal Procedure Code, 1973 (Cr.P.C.) can be exercised by the Magistrate to direct the police to conduct investigation, only in respect of a cognizable offence.
As per Section 2 (c) of the Cr.P.C., a “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant[i];
A complaint relating to the commission of a cognizable offence is usually given directly to the police under Section 154 of the Cr.P.C. which is recorded in the form of First Information Report (FIR). It is incumbent for the police to register an FIR if the complaint relates to the commission of a cognizable offence.
However, a situation may arise wherein, despite informing the police about the commission of cognizable offence, the police officers did not register the FIR. In such a circumstance, the informant may first approach any Senior Police official or the Superintendent of Police with a written application. Even if that does not generate 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) of the Cr.P.C. before the learned Magistrate having jurisdiction, who can then direct the police to register the FIR and conduct investigation.[ii]
Section 156 of the Cr.PC. reads as under:
Police officer’s power to investigate cognizable case. —
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3). Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.[iii]
A perusal of the above-mentioned Section makes it clear that, the police officer is bound to investigate any cognizable case, when information is received by him. But if the police refuse to investigate any cognizable case then the aggrieved person has got a remedy to approach the Magistrate under Section 156 (3) of the Cr.P.C. and further the Magistrate under this provision has been empowered to pass an order for investigation in the case where a cognizable offence was committed. However, a bare reading of Sub-section (3) to Section 156 also demonstrate that it is not expressly mentioned under Section 156 (3) whether it is mandatory for the Magistrate 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 the necessary steps that may be necessary for ensuring a proper investigation. However, the law in this regard is no longer res-integra and time and again, it has been held by the Apex Court and the various High Courts of India, that when a Magistrate receives an application under Section 156 (3) of the Cr. PC, he is not bound to take immediate cognizance even if the alleged facts disclose the commission of the offence. If on a reading of the application, the Magistrate finds that the allegations therein disclose a cognizable offence and direction to the police for investigation under Section 156 (3) Cr. PC will be conducive to justice and save the valuable time of the Court from being utilized in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as a preferred alternative to immediately taking cognizance of the offence and himself holding the enquiry.
Further, applications under Section 156 (3) are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. This is done, so that the person making the application is conscious and also endeavors to see that no false affidavit is made. Once an affidavit is found to be false, he will be liable for prosecution in accordance with law and this will deter him to casually invoke the authority of the Magistrate under Section 156 (3) of the Cr.P.C.[iv]
It is important to note that, the power to order police investigation under Section 156 (3) of the Cr.P.C is different from the power to direct investigation conferred by Section 202 (1) of the Cr.P.C. The power under Section 156 (3) of the Cr. P.C. has to be exercised by the Magistrate judicially on proper grounds and not in a mechanical manner. If the application does not indicate that any evidence is required to be collected and preserved and the applicant/complainant is familiar with the names and addresses of the accused as well as the witnesses, then in such a case, no investigation by the police is required. The Magistrate may proceed to take cognizance and decline the request under Section 156 (3) of the Cr. P.C.[v]
In Devarapalli Lakshminarayana Reddy vs. V. Narayana Reddy[vi], the Supreme Court held that, when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with must take cognizance”. The word “may” gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156 (3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
In Ramdev Food Products (P) Ltd. v. State of Gujarat[vii], the Supreme Court observed that the direction under Section 156 (3) of the Code is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
In M/s Skipper Beverages Pvt. Ltd v State,[viii]it was observed by the Delhi High Court that, Section 156 (3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted. The Section empower the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore, a Magistrate, must apply his mind before passing an order under Section 156 (3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact.
Strong reliance was placed by the High Court on Arvind bhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai[ix], wherein an Hon’ble Judge of Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156 (3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusations.
Further, the High Court of Delhi, in Smt. Mithlesh v. The State of NCT of Delhi & Ors.[x], has held that it is not incumbent in each and every case that the Magistrate must direct registration of an FIR and the consequent investigation by the local police. The Magistrate can proceed under Section 200 of the Cr.P.C. by examining the complainant and the other witnesses which are produced and then proceed to deal with the complaint under Sections 202 to 204 of the Cr. P.C.
It was further observed that sometimes a complainant wants to put pressure on the other side by registration of the FIR. This is so, on account of the fact that, once an FIR is registered, the other side namely the accused persons would be on the run because they will face an imminent threat of arrest and secondly, it becomes convenient for the complainant as well because it becomes a State’s case where the presence of the complainant is not required on each and every date of hearing. The Court observed that, this is the modus operandi which is invariably adopted and aimed at by every complainant which cannot be permitted to be done more so in a case, where the complainant is in litigation with the accused persons/respondents.
In Chandrika Singh v. State of U.P. & Ors.[xi], it was held by the Allahabad High Court, that the Magistrate is not always bound to pass an order to register the case and order investigation after receipt of the application under Section 156 (3) of the Cr. PC disclosing a cognizable offence. The Magistrate may use his discretion judiciously and if he is of the opinion that in the circumstances of the case, it will be proper to treat the application as a complaint case then he may proceed according to the procedure provided under Chapter XV of the Cr. PC. The Court was also of the opinion that it is not always mandatory in each and every case for the Magistrate to pass an order to register and investigate on receipt of the application under Section 156 (3) Cr. PC.
The Division Bench of the Allahabad High Court, in the matter of Sukhwasi v. State of Uttar Pradesh[xii], held that “the Court is always apprehensive whether it would be safe to even initiate investigation. The use of the word “may” in Section 156 (3) of the Cr. PC instead of “shall” is very significant and clearly indicates that the Magistrate has the discretion in the matter and can, in appropriate cases, refuse to order investigation. The Court further held that applications under Section 156 (3) Cr. PC are now coming up in torrents and hence, provisions under Section 156 (3) Cr. PC should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, and therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr. PC. It is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr. PC and there is no such legal mandate. He may or may not allow the application in his discretion and can treat an application under Section 156(3) Cr. P.C. as a complaint.
The power, under Section 156 (3) of the Cr. P.C. warrants application of judicial mind by the Magistrate and the litigant cannot, at its own whim and fancy, invoke the authority of the Magistrate. The Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in a routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the application filed and it is only if it appears that the allegations are serious enough and establish the commission of a cognizable offence and requires thorough investigation by the police, an FIR should be ordered to be registered. Further, the Magistrate can treat an application under Section 156 (3) Cr. P.C. as a complaint case, adopt the procedure of the complaint case by recording evidences under Sections 200 and 202 Cr. P.C. and then either proceed under Section 203 Cr. P.C. and dismiss the complaint if no offence is made out on summoning the accused under Section 204 Cr. P.C. whose complicity is disclosed in the inquiry conducted by it under Sections 200 and 202 Cr. P.C.
Edited & Published – Sakshi Raje
[i] Definitions, The Code of Criminal Procedure, 1973
[iii] Section 156, The Code of Criminal Procedure, 1973
[iv] Priyanka Srivastava & Anr. vs. State of U.P.& Ors.,AIR 2015 SC 1758
[v] Sarkar’s Commentary on the Code of Criminal Procedure, 1973, 12th Edition
[vi] (1976) 3 SCC 252
[vii] (2015) 6 SCC 439
[viii] 2001 (2) JCC (Delhi)
[ix] 1998(1) Crimes 351
[x] Crl.Rev.P.337/2008, decided on 12.8.2009
[xi] (xviii) 2007 ACC 777
[xii] 2008 Crl.LJ 472