.Shri.M.R.

Deshpande
6thJt.CivilJudge(S.D.)&
Addl.C.J.M.Thane

PAPERFORWORKSHOPDATED11/11/2017

ParametersfordirectinginvestigationunderSection156(3)
oftheCodeofCriminalProcedure.

(AllocatedtoGroupA2,CRIMINALSIDE)

INTRODUCTION

The Code of Criminal Procedure provides for

procedural modalities in respect of inquiry, investigation of
offencesandconductionofcriminaltrialsbythecourt.Chapter
VII of the Cr.P.C. lay down procedural aspects regarding
informationtothepoliceandtheirpowerstoinvestigate.Asper
Section154oftheCr.P.C.,thepoliceareunderlegalobligation
to register First Information Report regarding commission of
cognizable offences except in certain exceptional cases where
some kind of preliminary inquiry may be necessary, on the
backgroundof thefactandcircumstancesinthatcase,before
registration of F.I.R. However, the complainant or aggrieved
personisnotleftwithoutremedy,ifthepolicerefusestoregister
F.I.R.AnyMagistrateempoweredU/S.190oftheCr.P.C.may
orderthepolicetocarryoutinvestigationinrespectofalleged
commissionofcognizableoffenceuponreceivingacomplaintof
factswhichconstitutesuchoffenceoruponinformationreceived
from any person other than a police officer or upon his own
knowledgethatsuchaoffencehasbeencommitted.

ParametersfordirectinginvestigationunderSection156(3)
oftheCodeofCriminalProcedurecanbesummarizedwith
referencetothefollowingjudgments

In the case of Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627, the
Supreme Court held that any Judicial Magistrate, before taking cognizance of the
offence, can order investigation under Section 156(3) of the Code. If he does so, he
is 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 an FIR. There is nothing
illegal in doing so.

In the case of Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 , the
Supreme Court observed that if a person has a grievance that the police station is
not registering his FIR under Section 154 CrPC, then he can approach the
Superintendent of Police under Section 154(3) CrPC by an application in writing.
Even if that does not yield 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) CrPC
before the learned Magistrate concerned. If such an 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.

In a case of Ramdev Food Products (P) Ltd. v. State of Gujarat ,

(2015) 6 SCC 439, the Supreme Court observed that the direction under Section
156(3) 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 the case of Priyanka Srivastava v. State of U.P., (2015) 6 SCC

287 , the Supreme Court held that the duty cast on the Judicial Magistrate, while
exercising power under Section 156(3) CrPC, cannot be marginalized. It needs to
be reiterated that the learned Magistrate has to remain vigilant with regard to the
allegations made and the nature of allegations and not to issue directions without
proper application of mind. He has also to bear in mind that sending the matter
would be conducive to justice and then he may pass the requisite order. Power
under Section 156(3) warrants application of judicial mind. A litigant at his own
whim cannot invoke the authority of the Magistrate. A principled and really
grieved citizen with clean hands must have free access to invoke the said power. It
protects the citizens but when pervert litigations takes this route to harass their
fellow citizens, efforts are to be made to scuttle and curb the same. A stage has
come in this country where Section 156(3) CrPC applications are to be supported
by an affidavit duly sworn by the applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart, in an appropriate case, the learned
Magistrate would be well advised to verify the truth and also can verify the
veracity of the allegations. This affidavit can make the applicant more responsible.
We are compelled to say so as such kind of applications are being filed in a routine
manner without taking any responsibility whatsoever only to harass certain
persons. That apart, it becomes more disturbing and alarming when one tries to
pick up people who are passing orders under a statutory provision which can be
challenged under the framework of the said Act or under Article 226 of the
Constitution of India. But it cannot be done to take undue advantage in a criminal
court as if somebody is determined to settle the scores. 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 endeavor 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.
In Anil Kumar and others vs. M.K. Aiyappa and
another(2013)10SCC705,theSupremeCourthasexamined
thequestionofsanctionforprosecutionofapublicservantinthe
contextofprovisionsofSections156(3),190,200and202ofCr.
P.C. and has held that where jurisdiction is invoked on a
complaintfiledintermsofSection156(3)orSection200ofCr.
P.C., the Magistrate isrequiredtoapplyhismindandcannot
referthematterunderSection156(3)againstapublicservant
withoutavalidsanctionorder.TheSupremeCourthasalsoheld
insaiddecisionthatrequirementofsanctionisapreconditionfor
orderinginvestigationunderSection156(3)ofCr.P.C.evenata
pre cognizance stage. When It was contended before the
SupremeCourtthatincaseofprosecutionunderPreventionof
Corruption Act, 1988,absence ofsanction willnotvitiateany
finding, sentence ororderpassedbyaSpecialJudge unlessa
failure of justice has in fact been occasioned thereby, the
SupremeCourtobservedthatsuchaprovision(Section19(3)of
Prevention of Corruption Act, 1988) does not mean that the
requirementtoobtainsanctionisnotamandatoryrequirement.
Onceitisnoticedthattherewasnoprevioussanction,asalready
indicated in various judgments, the Magistrate cannot order
investigation against a public servant while invoking powers
underSection156(3)ofCr.P.C.

3. StateofMaharashtraV/sShashikantShindereportedin
2013ALLM.R.(Cri.)3060.

TheHon'bleHighCourt,Bombayheld that,though
police officer is duty bound to register case on receiving
informationofcognizable offence,theMagistrateisnotbound
toreferthemattertothepoliceU/S.156(3)oftheCr.P.C.The
Magistrate has to see whether the contentions made in the
petition/complaint constitute any offence. If they constitute
some offence then magistrate is expected to take decision
whether the matter needs to be referred to the police for
investigationasperSection156(3)ofCr.P.C.orheneedsto
proceed further as provided in Section 200 and subsequent
SectionsofChapterXVoftheCodeofCriminalProcedure.There
isdiscretiontotheMagistrateinthisregard.

4. PanchabhaiButaniV/sStateofMaharashtra
reportedin2010(1)MHLJpage421.

TheHon'bleHighCourt,Bombayheldthat,apetition
U/S. 156 (3) cannot be strictly constituted as a complaint in
termsofSection2(d)oftheCr.P.C.andabsenceofspecificand
properprayerandalackofcompleteanddefinitedetailswould
notprovefataltoapetitionU/S.156(3),insofarasitstatefacts
constituting ingredient of cognizable offence. Such a petition
wouldbemaintainablebeforetheMagistrate.

6. SureshchandJainVs.StateofM.P.,AIR2001
SC571.

The Hon'ble Apex court held that, any Judicial

Magistrate,beforetakingcognizanceoftheoffence,canorder
investigationU/S156(3),ifhedoesso,heisnottoexaminethe
complainantonoath,becausehewasnottakingcognizanceof
offencetherein. Forthepurposeofenablingthepolicetostart
investigation,itisopentotheMagistratetodirectthepoliceto
registeraFIR.EvenifaMagistratedoesnotsayinso,itisthe
dutyoftheofficerinchargeofthepolicestationtoregisterFIR.

7. Ramswarup V/s Mohammad Javed Rajjak,

AIR2005SC2005.
TheHon'bleapexcourtheldthat,itisnotnecessary
that,thecomplaintshouldbesentforinvestigationineverycase.
Itisonlywhereprimafaciecaseismadeout,itscognizancehas
tobetakenwhichrequirepoliceinvestigation.

8. C.P.KotwalV/s.AliAshad,2003CRLJ2885
(Bombay),

TheHon'bleHighCourt,Bombayheldthat,wherea
complaint alleged that, the petitioners had filed some forged
documentsinthecourt,itwasheldthat,theprosecutionwasnot
tenableinviewofSection195.Sincethecomplainthastobe
filed only by presiding officer of the Civil Court, where the
alleged documents have filed. An order directing to the
investigationU/S.156(3)waswithoutjurisdiction.

11. CBI V/s. State of Rajasthan AIR 2001 SC

668,the Hon'ble Apex Court held that, a Magistrate has no
powerU/S.156(3)todirecttheCBItoconductinvestigation
intoanyoffence.

Conclusion:
It isalwaysnoticedthatwheneverapplicationU/s.
156orprivatecomplaintisfiled,thepartiesmostofthetimes
requestandpraytoorderinvestigationU/s.156(3)ofCr.P.C.
excluding exception, Magistrates are passing the order after
goingthroughthecomplaint. Itisprecognizancestage. Itis
further to note that in general words application of mind,
judiciousdecisionisusedandMagistratesaresupposedtopass
the orders accordingly. The foremost requirement is to see
whether the cognizable offence is made out or not. It may
happened that when the order to investigate the cognizable
offence U/s. 156 (3) of Cr.P.C. is passed, sometime police
authorities files negative report and sometime positive report
requestingtheMagistratetotakecognizanceoftheoffence. It
meansatthetimeofpassingorder,thoughtheMagistratethinks
that the offence of cognizable nature is made out in the
complaint, it may not be always true and after detail
investigation one can gather whether there is case to take
cognizanceornot.
 Conclusion

1] Section156(3)dealswithpowerof Magistrate to
orderapoliceinvestigationincaseofcognizableoffences.

2] Itisaprecognizancestage.MeansbeforeMagistratetake
cognizanceofcomplaintunderSection190(1)(d).

3] OnceaMagistratedirectedinvestigationunderSection156
(3), it gives wide power to police to register the
offence/FIRagainstaccusedandeventoarrestaccusedif
offenceiscognizable.

4] IftheMagistrateisintendingtopassorderunderSection
156(3),heshallnotexaminecomplainantonoath.

5] Theconcernpolicetowhominvestigationisdirectedunder
thissectioncanfilefinalreporteitherunderSection169or
underSection173ofCodeofCriminalProcedure.