Magistrate Power under Sec 156(3) of CRPC

Section 156(3) of the Code of Criminal Procedure is a provision in regards to pre-cognizance stage of the trial. In brief Section 156 of CrPC defines the police officers power to investigate cognizable cases. Section 156(3) reads as- “Any Magistrate empowered under section 190 may order such an investigation as above mentioned”. Section 156(3) is very briefly worded but when we deeply study this provision we get to know about the hidden or implied powers which are provided by the sub section to the magistrates. Just like Article 21 of the Constitution which though is very short in words and yet hold very important significance, Section 156(3) is quite essential.

Through a set precedent a procedure has been set where a complainant aggrieved of a cognizable offence would get his First Information Report register by a police officer as explained under Section 154 of CrPC. If that police officer is not registering FIR under section 154 of CrPC, such a person can approach Superintendent of Police (SP), with written application, under sub-section 3 of section 154 of CrPC. In case of SP also does not still register FIR, or despite FIR is registered, no proper investigation is done, in such a case, the aggrieved person can approach Magistrate concerned under section 156 (3) of CrPC. If that be so, it is very essential and interest to know the powers conferred on Magistrate under section 156 (3) of CrPC. Through a series of case laws, the features of Section 156(3) of CrPC are discussed below.

Sakiri Vasu vs State of U.P. And Others[1]is one of the landmark judgment with regards to Section 156(3) of CrPC and it tries to clarify the procedural aspect of the complex provision. The whole procedural precedent as mentioned above has been given in this case. If any 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. It has been further held that when someone has a grievance regarding investigation he rushes to the High Court to file a writ petition or a petition under Section 482 CrPC And further held that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 CrPC before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).

In Mohd. Yousuf vs. Smt. Afaq Jahan & Anr[1] it has been held that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code.Section 156(3) CrPC, though briefly worded, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. It has a great deal of implied powers within itself and just because minor details are omitted from legislation does not means that these powers are non-existential. If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission. Again and again Apex Court has reiterated the doctrine of implied power in major judgments such as  Union of India vs. Paras Laminates[2],  Savitri vs. Govind Singh Rawat[3], Reserve Bank of India vs. Peerless General Finance and Investment Company Ltd[4] etc.

In Union of India vs. Prakash P. Hinduja and another[5]t has been observed by The Hon’ble Apex Court that a Magistrate cannot interfere with the investigation by the police until he 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.

In CBI vs. State of Rajasthan and another[6], the Hon’ble Supreme Court held that ” the Magistrate cannot order investigation by the CBI” whereas inSecretary, Minor Irrigation &

Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another[1], the Hon’ble Apex Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency.

Section 156(3) occurs in Chapter XII, under the caption: ‘Information to the Police and their powers to investigation’; while Section 200 and 202 is in Chapter XV which bears the heading ‘Of complaints to Magistrate’. There is a slight confusion about the proceedings under both the provisions. The Honorable Supreme Court inD. Lakshaminarayana v. V. Narayana [2]and Polavarapu Jagadiswararao v. Kondapaturi Venkateswarlu[3] tried to clarify the difference between both the provisions. The power to order police investigation under S. 156(3) is different from the power to direct investigation conferred by Section 202(1).When you proceed under 156(3), court has power to direct the police to make an investigation and to file police report and accordingly court can direct the police to lodge a FIR. Under 200 court may proceed to summon the accused directly if it gets convinced.The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in cognizance of the case. In the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under S. 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3).The object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.

For case specific advice, you may contact Top/Best/Expert Criminal Lawyer Advocate in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar.

This post is written by Abhay Tripathi. For more info, dial 7888-356908.