While Sections 154, 155, Sub-sections (1) and (2) of the Criminal Procedure Code, 1973 confer the rights on an aggrieved person to reach the police, Section 156(3) empowers a magistrate to make order for investigation. Is a magistrate by not directing investigation under Section 156(3) committing an error of judgment? Read on to get the complete picture of this legal remedy available under the law.
It is often stated that unless there is a complaint there can be no offence. Once the commission of offence is noticed by the concerned authority or information is given to the concerned body, a formal notice is taken and further proceeding is governed by the established rules of the criminal justice system. The Indian legal system has entrusted the police with the duty of investigation of cognizable offences including power of arrest of the offenders, conduct of search and seizure, collection of all relevant evidence, and finally submission of report to the appropriate magistrate for putting the offender on trial. For the exercise of this power, the police do not need any authorization from the magistrate. This arrangement has been made keeping in mind the seriousness of offences and urgency of taking action including arrest.
The word First Information Report (FIR) is the first information about the commission of crime. The statutorymandate enshrined in the section 154(1) of the Criminal Procedure Code, 1973, hereinafter referred as code, is that every information relating to the commission of a “cognizable offence” (as defined under section 2(c) of the code), given orally (in which case it is to be reduced into writing) or in writing, to “an officer in charge of a police station” and signed by the informant should be entered in a book to be kept by such officer in such form as the state government may prescribe is commonly called as FIR, and this act of entering the information in the said form is known as registration of a crime or a case. At this stage a police officer cannot embark upon an enquiry as to the veracity of FIR. He is statutorily obliged to register a case and then to proceed with the investigation if he has ‘reason to suspect’ the commission of an offence and empowered under Section 156/157 of the code to investigate. The court in State of Haryana v. BhajanLal [(1992 Suppl.(1) SCC 335] has given detail guidelines for the same. In case, the officer refuses to register FIR, the person aggrieved can send the substance of the information in writing and by post to the Superintendent of Police (SP) concerned who, as per the code, satisfied that the information forwarded to him discloses a ‘cognizable offence’, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.
The police have statutory duty to register a cognizable offence and thereafter have a statutory right to investigate the same without requiring sanction of a magistrate. However, the said statutory right to investigate is subject to the fulfilment of pre-requisite contemplated in Section 157(1). The condition is that the police officer, before proceeding to investigate, should have “reason to suspect” the commission of a cognizable offence. However, it is because of this condition that sometimes injustices occur because the police refuse to take action on any such information due to some socio-political or any other pressure.
Power under Sec 156(3) CrPC
With an object to control and regulate the actions of the investigation agency, the Magistrate u/s 156 (3) of the Code is vested with a very vast power. In case the investigation officer is not doing investigation properly the makers of the Code aimed to insert a statutory provision under the Code to the effect that a magistrate can correct the course of investigation and thereby to do justice with victim and find out the truth into the allegations by making proper and guided investigation. In essence it is intended to give full effect to the guaranteed constitutional rights of the citizens. It is essentially a kind of judicial review in order to provide for controlling and supervisory judicial powers over the police and other investigating agencies. Thus there is much difference under the powers exercised by police/investigation officer and the power vested in the magistrate u/s 156 (3) as the police investigation is always subject to judicial power of the magistrate.
Now the question arises, what if the police due to political or other reasons refuse to register FIR? What if no action was taken even by the SP? What are the options left with the victim? In fact, there is an alternative method by initiating criminal proceeding by way of filing ‘complaint’ to an appropriate magistrate. The power is prescribed under section 190 of the code. Complaint is defined as ‘an allegation made orally or in-writing to a magistrate in respect of some person whether known or unknown who has committed an offence with a view to his taking action’. This ingredient of “taking action by the magistrate himself in a definite manner provided under chapter XV of the code” isthe sine qua non for any magistrate. For a document to be “Complaint” under Section 2(d) of the code, there has to be an express or implied intention of the person concerned. It does not include a police report, which is defined under Section 2(r) Cr. PC. The actions which a magistrate is required to take on a complaint are authorised under chapter XV which includes recording of statement of the complainant and statement of witnesses.
The word complaint in a generic sense is different from the word ‘complaint’ under section 2(d) of the code. An application for issuing a warrant or for recovery of a thing or article or for registration of a case under section 156(3) of the code or for issuance of search warrants, etc., fall outside the periphery of the definition of ‘complaint’ under section 2(d) of the code.
It may be stated here that provisions like 156(2) or (3), empowering a court to act in a particular manner, and providing the rights of an aggrieved person to approach a court, must be understood distinctively and should not be mixed up. While sections 154, 155, sub-sections (1) and (2) of the code confer the rights on an aggrieved person to reach the police, 156(3) empowers a magistrate to act ‘in a particular manner’ in a given situation i.e. ‘to make order for investigation’. Once such order is made, the power of the police to investigate and its other related ancillary powers get revived. The order passed under 155(3) does not mean a kind of ‘investigation’ under ‘supervision of magistrate’.
When the magistrate applies his mind for other than ‘cognizance’, then the application made under section 156(3) of the code will not be a ‘complaint’ and would have a different procedure. The provisions of 156(3) are contained in Chapter XII of Code which deals with the information to the police officers and their powers to investigate. Sub-section (1) of Section 156 of the code empowers officer in-charge of a police station to investigate any cognizable case without the order of a magistrate. It may be said that the section 156(3) relate to the registration and investigation of a case. In such a case, ifany order is passed under Section 156(3) of the code, the police will follow the procedure contained under Section 156(1) of the code and after investigation submit a report under Section 173 of the code. The procedure for taking cognizance on the report submitted under Section 173 of the code shall be separated i.e. cognizance on a police report under Section 190(b) of the code. Separate procedure for trial of such cases is also provided in the code. While on a filing a complaint the magistrate has to adopt a procedure under Chapter XIV of the code. If the magistrate takes cognizance on a complaint, it would be under Section 190(a) of the code and a separate procedure is also provided for trial of a complaint case.
The legislature has intentionally made separate procedures to be followed and therefore, the magistrate cannot convert one procedure into other. It has also been held in several cases of this Court that magistrate has no power to register an application under Section 156(3) of the code as complaint. Moreover, the definition of complaint given in Section 2(d) says that ‘complaint’ means any allegation made orally or in writing to a magistrate, with a view to his taking action under this code that some person, whether known or unknown, has committed an offence, but does not include a police report. Thus, the scope of an application under Section 156(3) and that of a complaint is also different.
It is, therefore, abundantly clear from the above analysis that the application given under Section 156(3) has only a limited purpose i.e. to seek theinterference of the court of concerned judicial magistrate for an order to the police to register and investigate the cognizable cases, facts of which are disclosed in such an application. Such an application is never meant for cognizance under Section 190 of the code or for drawing of proceedings under Chapter XV and XVI
What is the purpose of empowering the magistrates with the power to investigate u/s 156 (3)?
The Magistrate under the Code of Criminal Procedure is empowered to order investigation under section 156(3), however, this power can be exercised by the magistrate only when the Police have not registered the FIR inspite of the filing of the complaint disclosing cognizable offence or despite having registered the FIR, the police is not conducting the investigating independently and efficiently. The Magistrate should examine what action has been taken by the police on the complaint and should also ensure that the senior police officers despite being approached have failed to take appropriate action in the matter as provided under section 154(3) CrPC. The Magistrate is duty bound to apply his mind on the facts & circumstances of the case, whether the information given, discloses a cognizable offence and the intervention of police is necessary for collecting the evidence, which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by his at the instance of the complainant. The power u/s 156(3) CrPC can be invoked only when the Magistrate does not wish to take cognizance under section 190 CrPC to proceed further with the complaint as u/s 200 CrPC. Thus the remedy under section 156(3) CrPC is available only when the Police officials do not comply with the statuary requirements envisaged under section 154 CrPC.
Can we say that this is a much better way of getting an offence investigated as the chance of investigation being manipulated by the police stands mitigated?
The investigation on the direction of magistrate is not a routine matter but is a remedy available under the law only when the Police refuse to discharge its statuary duty. The magistrate has very wide powers to direct the registration of FIR and to ensure proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done in accordance with law. It is important to mention that the primary duty to conduct investigation is that of the police and if the SHO/ investigating officer do not conduct the investigation properly, the initial remedy lies under section 36 and 154(3) CrPC before the senior officers and then before the magistrate by filing the complaint under section 200 CrPC r/w 156(3) CrPC. It is settled principle of law that statuary right to investigate the cognizable offence cannot be interfered with or controlled by the Courts including the High Courts. The jurisdiction of the Courts begins only when the investigation is complete and the final report is filed in the Court under section 173 CrPC. Although investigation on the direction of the magistrate, does not give an opportunity to the Court to monitor the progress in the investigation, but however this practice should not be adopted on regular basis and should be exercised only when the circumstances manifest complete inaction or lackadaisical action on the part of police. The primary duty of the investigating agency is to ascertain the unvarnished truth in the case and not to bolster up the case of the complainant. I therefore firmly believe that the power under section 156(3) CrPC should be invoked sparingly and only in appropriate cases.
Here comes the question of scope of section 156(3) of the code. What are the powers of the magistrate there under and whether the magistrate on his own, without prayer being made by the aggrieved persons, can direct the applicant to take recourse to a particular forum of litigation and can refuse his prayer for the other forum by starting a lis? This can be answered by reading section 156(3) of the code with other provisions.
The word ‘any magistrate’ includes executive magistrates as well as judicial magistrates. This sub-section does notcreate any distinction between these two types of magistrates. Further the phrase ‘an investigation as mentioned above’ relates to an investigation which is to be conducted by the police under Section 156(1) of the code. The purview of the power of the magistrate conferred under Section 156(3) of the code does not travel beyond the said scope. It is limited in nature and the magistrate under that subsection is empowered only to look to the application or complaint only to find out as to whether a ‘cognizable’ offence is disclosed or not.
Looking it from juristic way, a proper order from magistrate under Section 155(3) should be an order or direction to the police to the effect of ‘registering a case at the police station treating the complaint as the first information report and investigating into the same’. Under this section neither magistrate takes cognizance himself nor said power is wielded at the pre-cognizance falling under chapter XII of the code relating to the police to investigate into cognizable offences. The logic behind such argument is when no such power is vested in the magistrate regarding investigation of cognizable offence; no such power should be interpreted in the name of plenary powers.
There is yet another difficulty in allowing the magistrate to take cognizance suomotu by transforming application under Section 156(3) of the code to one under Section 2(d) and 190(1)(a) of the code and that is that the magistrate cannot start the lis on his own. It is for the aggrieved person to engineer it and that too in the form and forum he deems fit and proper. It has been noticed that in some cases where the cognizable offences are disclosed the magistrates does order for registration and investigation but in some cases they refuses it. This sometimes provides a disadvantage to the accused and fosters arbitrariness at the hands of the magistrate. In fact in such cases a magistrate is left with no option but to order for the registration and investigation of the case. So far as injustice to accused is concerned, if he is aggrieved by the registration of F.I.R. he can challenge the same by filing a writ petition under Article 226 of the Constitution of India with in the ambit of the guidelines laid down by the apex court in the case of BhajanLal case [supra]. Moreover, the Apex Court has taken a good care in cases of arbitrary exercise of power by the police through judgments in cases of Joginder Kumar v. State of Uttar Pradesh and D.K. Basu v. State of W.B. etc. These judgments of the apex court obliterate the possibilities of misuse of power by the police and malicious prosecution of citizens.
Another point is that the Magistrate cannot pre-judge the issue of investigation merely on the basis of an allegations levelled in an application under Section 156(3) code that the matter does not require an investigation and he will inquire it himself. If the magistrate is of the opinion that a cognizable offence does not require investigation then what he is going to inquire himself is a big question as the law says that all cognizable offence must be investigated.
In most of the cases the magistrate rejects the prayer by holding that theapplicant is in the knowledge of all the facts and therefore, he will not order for an investigation. This seems to be a totally perverse and injudicious approach. For example, in cases of murder, loot, dacoity, rape, etc., the informant is in the knowledge of all the facts of the incident but this does not mean that the magistrate should not direct an investigation. It is preposterous even to cogitate that merely because the victim applicant /complainant is in the knowledge of all the facts, therefore his FIR should not be directed to be registered. Such type of order is wholly illegal and is glaring examples of injustice.
From another point also such types of orders cannot be sustained. Filing of a complaint and prosecuting it many times is not viable. The complainant may be at a loss to lead the evidences because of so many reasons, political as well as social. Normally the police do not register the FIR against politically and socially influential persons and the witnesses are not ready to give evidences against them. The poor aggrieved person cannot arranging for bringing witnesses to the court and launch a successful prosecution, or the accused may be so powerful so as todetest the complaint from bringing his witnesses or they may be politically so strong that the witnesses may not come forward to support complainant’s case in the Court are some of such examples, which are not exhaustive in nature but where the insensitiveness of the magistrate may result in total miscarriage of justice. Thus, there may be thousands of other reasons for an aggrieved victim not to file a complaint but to resort to the power of magistrate under Section 156(3) code.
Moreover, by not allowing the prayer for registration of FIR and investigation of cognizable offence the min fact will make Section 156(3) of the code otiose. Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. It is true that section 202 which falls under Chapter XV also refers to the power of a Magistrate to ‘direct an investigation by a police officer’. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code. When a magistrate orders investigation under chapter XII he does so before he takes cognizance. In fact if a magistrate does not pass a direction to register a case,still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable ‘case’ and the Rules framed under the Indian Police Act. 1861 the police are duty-bound to formally register a case and then investigate into the same.
Thus from the above it is clear that the magistrate by nor directing investigation under Section 156(3) of the code gives a long rope to the police to act on their whims and caprices fostering illegality of inaction by the police in registration of information of cognizable offences. It is not permissible for any magistrate under the code to act contrary to the provisions of the code. To stop any such violation of code is duty of magistrate.
The magistrate is not required to conduct an enquiry under section 156(3) of the code and he should not saddle himself with additional burden of discharging the function of the police as the crime prevention and the crime detection are the primary and foremost duties of the later and so it must be left to them to perform this part of their duty. The function of the judiciary and the police are complementary and not overlapping. The magistrate must recognize it and accordingly pass order under this provision. When he exercises power under 156(3), he is doing what code has authorized and not what he thinks.
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