Powers of Magistrate

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Powers of Magistrate

Generally, the criminal proceedings are instituted by the registration of First Information Report (FIR). An investigation is done post FIR. However, when no proper investigation is conducted despite the registration of FIR, a Magistrate as per section 156(3) of the Criminal Procedure Code, 1973 is empowered to order the investigation.

Section 156(3) attempts to define powers briefly. It does not expressly and exhaustively provides for the powers and its extent.

Section 156(3) of Cr.P.C.

The word ‘Magistrate’ mentioned in section 156(3) means Judicial Magistrate who is empowered to take cognizance of a cognizable offence and not Executive Magistrate.[1] A Magistrate is empowered to order the investigation for the offence only when he is empowered to take the cognizance of such offence under section 190 of the Code. The power under section 156(3) of the Code can be exercised by the Magistrate even before he takes the cognizance provided that the complaint discloses the commission of a cognizable offence. Thus, where the complaint did not disclose commission of a cognizable offence, the order directing investigation was held liable to be quashed.[2]

The power conferred under section 156(3) can be invoked by the Magistrate before he takes the cognizance of the offence. It was held in the Kanak Singh v. Balabhadra Singh,[3] that very fact that the Magistrate passed the order for investigation under the sub-section without examining the complainant by itself is sufficient to hold that the Magistrate has not taken cognizance of the offence but the order was held not to be illegal and that the High Court could not prevent the police from investigating the offence under section 482.

The power conferred by section 156(3) is an independent power and does not limit the power of any investigating officer.

Power of Magistrate to order Registration of Case and Investigation

The Supreme Court in Madhu Bala v. Suresh Kumar,[4] held that it is not illegal by the Magistrate to order to the police to register the case and investigate it provided that the complaint filed before the Magistrate discloses the commission of any cognizable offence.   In Mohd. Yousuf v. Smt. Afaq Jahan,[5] the Court held that 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. While exercising this power the Magistrate should apply his mind to the allegations in the complaint. The order of Magistrate has necessarily to indicate the application of mind.[6]

In Union of India v. Prakash P. Hinduja and another,[7] it has been observed that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done 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 officer-in-charge 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.

However, a Magistrate is only empowered to order the investigation by police and not by the Central Bureau of Investigation. In CBI v. State of Rajasthan & ors.[8] It was held by the Supreme Court that the Magistrate cannot order an investigation by the CBI. In Nareshbhai Manibhai Patel v. State Of Gujarat And Ors,[9] it was held that under Section 156(3) of Cr.P.C., a Magistrate cannot direct C.B.I. to conduct an enquiry. A Court white exercising revisional powers put itself into the position of the Court passing the impugned order and then examines the question and revises the order if need be. Therefore, while exercising revisional powers this Court would not be competent to order an investigation through C.B.I. or C.I.D., as is prayed for by the revisioner.

 Powers of Magistrate under section 144 Cr.P.C.

Section 144 of the Code confers the Magistrate the power to protect the public tranquillity. A Magistrate is empowered to make any order either in case of nuisance or apprehended danger where such nuisance or danger causes disturbance to public tranquillity or leads to riots or affray. This section does not deal with cases of the ordinary public nuisance but the cases where the urgency demands setting aside all the formalities to the making of an order.

The Magistrate is empowered to issue an order:

  1. For the immediate prevention of public nuisance;
  2. For the speedy remedy of an apprehended danger.

In Abdul v. Lucky Narain Mundul,[10] it was held that the object of this section is to enable a Magistrate, in cases of emergency, to make an immediate order for the purpose of preventing an imminent breach of the peace, etc.; but it is not intended to relieve of the duty of making a proper inquiry into the circumstances which make it likely that such breach of peace, etc., will occur.

As per section 144(2), orders can be issued ex-parte, but will remain temporary and will be issued only in exceptional circumstances.

Frequently Asked Questions (FAQs)

  1. What are the powers of Magistrate under Cr.P.C.?

Section 156(3) provides the Magistrate to order the investigation of any cognizable offence. The power conferred under section 156(3) can be invoked by the Magistrate before he takes the cognizance of the offence. The only condition to exercise the power is that the complaint must prima facie entail the commission of a cognizable offence. The power conferred by section 156(3) is an independent power and does not limit the power of any investigating officer.

  1. What are the powers of the Executive magistrate under Cr.P.C.?

The Executive Magistrate is under the control of State Government. An Executive Magistrate possesses the power to arrest any person within his jurisdiction and can also issue the warrant. There are following powers available to Executive Magistrate:

  1. Power to pass the injunction
  2. Order to stop the public nuisance
  3. Command the dispersal of any unlawful assembly
  4. Power to issue the search warrant
  5. Make the enquiry on custodial death.

3. What are the powers of Judicial Magistrate of First Class?

The following powers are possessed by a Judicial Magistrate of First Class:

  1. to require security for good behaviour from persons disseminating seditious matter
  2. to require security of good behaviour from habitual offenders
  3. to discharge sureties, to record statements and confessions 
  4. to tender a pardon to an accomplice, to order for maintenance of wives and children in case of neglect

[References]

[1] Bateshewar Singh v. the State of Bihar, 1992 Cr LJ 2122 (Pat).

[2] Tilaknagar Industries Ltd. v. the State of A.P., AIR 2012 SC 521.

[3] Kanak Singh v. Balabhadra Singh, 1992 Cr LJ 579 (Guj).

[4] Madhu Bala v. Suresh Kumar, AIR 1997 SC 3104:1997 Cr LJ 3757.

[5] Mohd. Yousuf v. Smt. Afaq Jahan, AIR 2006 SC 705.

[6] Ram Babu Gupta v. State of Uttar Pradesh, 2001 Cr LJ 3363.

[7] Union of India v. Prakash P. Hinduja and another, (2003) 6 SCC 195.

[8] CBI v. State of Rajasthan & Ors., (2001) 3 SCC 333.

[9] Nareshbhai Manibhai Patel v. the State Of Gujarat And Ors, (2003) 1 GLR 456.

[10] Abdul v. Lucky Narain Mundul, (1879) 5 Cal 132.

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