The Ambit of the Provisions of Section 156(3) of the Code of Criminal Procedure

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Somnath Iyer
I am Somnath Iyer (Legal Associate, M. Tripathi & Co., Mumbai) practising at Bombay High Court, specialising in Commercial, Criminal and Cyber-Tech Law.

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“Magistrate is the Master of the jurisdiction of investigation; under whose control, the police or any other person specially authorized to investigate shall function.”

Section 156(3) of the Code of Criminal Procedure empowers a Magistrate to direct the concerned police to investigate an offence upon a receipt of Complaint disclosing cognizable offence committed under its jurisdiction qua which the said Magistrate is competent to take cognizance under Section 190 CrPC.

Definition of Cognizable Offence

Section 2 (c) of the CrPC., 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.

Section 156(3) CrPC

Under sub-section (1) of Section 156 the officer in charge of a jurisdictional police station has the power to investigate any cognizable case and under sub-section (2) such proceedings of a police officer shall not be called in question on the ground that the case was one which such officer was not empowered to investigate. Under sub-section (3), any Magistrate empowered under Section 190 may order for an investigation by the officer in charge of the jurisdictional police station as mentioned under sub-section (1) of Section 156 of the Code.

Invocation of Section 156(3) CrPC

The condition precedent before applying Section 156(3) CrPC is that the aggrieved party should first file an application or Complaint in terms of Section 154 CrPC and Section 36 CrPC before the Police Station having jurisdiction to take cognizance or the Superintendent of Police. Upon refusal to register a complaint by the Police officials, the aggrieved party has a remedy to invoke Section 156(3) CrPC seeking an order of the Magistrate having territorial jurisdiction directing the Police Officials to register an FIR and thereafter conduct the investigation as per Section 156(1) CrPC.

Considering Application under Section 156(3) CrPC

It is a well-settled law that an application under Section 156(3) before the Magistrate is at a pre-cognizance stage.

The discretion rests with the Magistrate to decide whether to proceed as per provisions of Section 200 to 204 CrPC by taking cognizance of the offence as held in Suresh Chandra Jain v. State of Madhya Pradesh and Anr. 2001 (42) A.C.C. 459 delivered by the Hon’ble Supreme Court and treat it as a Complaint Case or ask the Police Officials to investigate the matter. Upon looking at the facts and circumstances of the case the Magistrate upon its discretion may direct the complainant to adduce more evidence in support of his complaint or deploy the concerned police for collecting the evidence qua the offence alleged in the complaint. 

It has to be kept in mind while deciding such application that, when on the basis of the averments and allegations in the complaint, if it prima facie discloses any cognizable offence which is serious in nature requiring police investigation, the Magistrate is obliged to direct the Police officials to conduct further investigation since an aggrieved person cannot be forced to proceed in the manner provided by Chapter XV and to produce his witnesses at his cost of bringing home the charge to the accused. It is the duty of the state to provide safeguards to the life and property of a citizen. If any violation is made by an offender, it is for the State to set the law into motion and come to the aid of the person aggrieved. Anju Chaudhary vs State Of U.P.& Anr.

As per the decision in Priyanka Shrivastav and Ors vs State of UP, the division bench of the Apex Court held that in order to prevent abuse of procedure of law, the application under Section 156(3) of the Code must be supported by an Affidavit of the Complainant, the absence of which will oust the jurisdiction of the Magistrate to refer a private complaint to the investigation. As per the decision in Ganesh Krishnan vs Ramesh Nanjund Shastri, the Hon’ble Single Judge of the Karnataka High Court held that it is imperative on the part of the aggrieved party to clearly mention in the Application and the affidavit in support thereof that he has exhausted the remedies provided under Section 154(1) and 154(3) of CrPC. and necessary documents to that effect shall be filed along with the Application.

There is a two-fold purpose that gets served in filing such Affidavit. Firstly, to establish that the aggrieved party has exhausted the remedies provided under Section 154 CrPC and after being left with no other remedy the aggrieved party has come to court seeking its judicial intervention in directing the concerned Police officials to register FIR or take Cognizance of the Offence; and secondly to ensure that no false Complaint is filed against the accused. If the affidavit is found false, the Magistrate reserves the right to take action against the Complainant for an offence under perjury or any law time being in force. 

Monitoring Investigation

A bare reading of Section 156(3) does not specifically mention the words ‘monitoring investigation’. However, since the Magistrate has been empowered with wide powers to check compliance of its order and to ensure that proper investigation is being carried out or not, it casts an implied power upon the Magistrate in terms of Section 156(3) CrPC to monitor the investigation though he cannot investigate the matter himself. Investigation of the case is solely within the domain and powers of the Police officials; however, it is within the power of the Magistrate to monitor such investigation. Sakri vs. State of U.P., (2008) 2 SCC 171.

Hearing of the Accused while deciding an Application under 156(3) CrPC

When an application is made under Section 156(3) CrPC for a direction to the concerned police for registration of FIR, the investigation is at a pre cognizance stage and there is no valuable right which has accrued to the prospective accused, which is distinct from the post cognizance stage. As such when the Magistrate simply sets the machinery into motion in such that the police may perform their duties, the Magistrate has not taken any cognizance. Thus, at most the prospective accused can at the most watch the proceeding going on against him, but he cannot have a right to either oppose or say anything unless the court takes cognizance and issue process against the accused person. Arun Kumar Singh @ Pappu Singh And vs State Of U.P Misc. Single No. 2173 of 2016.

There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. The casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and others.

It is only when an order issuing summons is passed and when the trial commences does the accused get the right to raise his defence. In the absence of any statutory right of hearing to the prospective accused at the pre-cognizance stage, when only a direction to investigate has been issued by the Magistrate under Section 156(3), the accused cannot be conferred with any right of hearing even under the principle of Audi alteram partem. It is only when the Magistrate exercises its right and sets into motion the provisions of Chapter XV of the Code does the Magistrate take cognizance of the offence thereby vesting a right in the accused to raise a defence on his behalf.  

Rejection of Application under Section 156(3) CrPC by the Magistrate

In the matter of Anil Kumar and others vs. M.K. Aiyappa and Anr 2013(10) SCC 705, the Hon’ble Supreme Court held that the Magistrate would be required to dilate upon the matter in such a manner which reflects upon the application of mind. Therefore, suffice to say that it is incumbent on the part of the Magistrate to record sufficient reasons reflecting his application of mind in the order passed by him. 

However, per contra to decision laid down in Anil Kumar case supra, the Hon’ble Punjab and Haryana High Court in M/s Sujan Multiports Ltd. versus State of Haryana and others, was of the opinion that the Magistrate while acting under Section 156(3) CrPC may be required to record a few lines which might reflect upon the application of mind, however, he is not required to record the detailed reasons for passing the order. What the Hon’ble Court held that was since the application under 156(3) is at a pre-cognizance stage, dilating the merits of the case at this stage would be tantamount to taking cognizance of the same under Section 200 CrPC which is not permissible in the eyes of law. Further, since the provisions of Section 156 CrPC do not cast a duty upon the magistrate to record reasons, the Magistrate is under no obligation to record findings for allowing or rejecting the application made under Section 156(3) CrPC.  

The remedy available to the Accused

In the matter between Amarnath Agrawal Versus Jai Singh Agrawal & Ors, a question arose before the Hon’ble Single Judge as to “whether revision would be held maintainable when the Magistrate only directs registration of FIR?” The Hon’ble High Court relying on the decision of a full bench of the Hon’ble Allahabad High Court rendered in Father Thomas v. State of U.P. & Anr in which it held that an order made under Section 156(3) CrPC is an interlocutory order and remedy of revision against such order is barred under subsection (2) of Section 397 of the Code of Criminal Procedure, 1973 and when while directing investigation the Magistrate has not applied its mind as it has not taken cognizance of the matter, there is no order of the Magistrate which can be revised under Section 397 read with Section 401 of the Code. When there is no finding, sentence or order against the accused, the same is not revisable under Section 397 of the Code.  

Further, what the Court held was that if a Revision Application is held to be maintainable, then it would as good as conferring powers solely granted on the High Court under Section 482 of the Code or under Article 226/227 of the Constitution of India to the Sessions Court to quash the FIR. 

In contrast to the decision mentioned supra, another full bench of the Hon’ble Allahabad High Court in the matter between Jagannath Verma v. State of U.P, upon a similar question laid forth before it held that an order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order and is therefore amenable to the remedy of a Criminal Revision under Section 397.

Paradoxically, in the year 2015, a Single Bench of the Hon’ble Bombay High Court in the matter between Avinash v. State of Maharashtra upon a similar question being raised on the maintainability of a Revision Petition challenging the order passed under Section 156(3) CrPC in which the Hon’ble Judge came to the conclusion that order u/s 156(3) of the Code of Criminal Procedure, 1973, is not an interlocutory order, but is a final order terminating the proceeding u/s 156(3) of the Code and that the revision u/s 397 or Section 401 of the Code would lie. The Hon’ble Court shaped its opinion on the basis that the full bench of the Hon’ble Allahabad High Court in Father Thomas did not avert upon the point that once an order is passed there would be a termination of proceedings u/s 156 of the Code.

Analysis

Upon a careful and precise reading of sub-section (3) of Section 156, any Magistrate empowered under Section 190 may order for an investigation by the officer in charge of the jurisdictional police station as mentioned under sub-section (1) of Section 156 of the Code whereas any officer-in-charge of a police station obliged under Section 154 CrPC shall upon receipt of a cognizable offence register FIR. It, therefore, casts a duty upon the concerned police authorities to register FIR and thereafter validate the genuineness and the reliability of the information so provided. Such validation of the information cannot be done before the FIR is registered. Whereas, the wordings in sub-section (3) of Section 156 clarifies the intention of the legislature that it is upon the sole discretion of the Magistrate to look into the facts and circumstances of the case and upon forming a prima facie opinion about the commission of a cognizable offence direct the Police Officials for further investigation; or set into motion the provisions of Chapter XV and conduct trial straight away by collecting evidence. 

When a person has no right of hearing at the stage of making an order under Section 156(3) or during the stage of the investigation until the Court takes cognizance and issues process, he cannot be clothed with a right to challenge the order of the Magistrate by preferring a revision under the Code. He cannot be termed as an “aggrieved person” for purpose of Section 397 of the Code. After forming a prima facie opinion that no police investigation is required and the Magistrate takes cognizance of the offence and directs examination of the witness, it is at this stage that the right accrues to the accused, albeit the accused is not summoned. Therefore, the crux is that the accused gets the right to hearing in a revision petition once cognizance of the offence is taken and not otherwise. 

However, if light is thrown on the decision laid down by the Hon’ble Bombay High Court in Avinash vs State of Maharashtra supra, and if Revision is held to be maintainable, then it will lead to multiciplity of proceedings leading to uncertainty. It would practically be the same as providing a prospective accused a right of hearing against filing FIR at the stage of revision when it is well-settled law that at the stage of hearing an application under section 156(3) of the Code no right accrues in favour of the accused. Therefore, the question that remains yet to be answered is whether an accused deserves a right before the Revisional court challenging the order of the Magistrate when there is an absence of such right before the Magistrate and if the answer is in affirmative wouldn’t it be equitable to grant such right at the time of hearing before the Magistrate to avoid multiplicity of proceedings?

Therefore, it has become necessary for the Hon’ble Apex Court to clear the cloud hanging over the maintainability of Revision Petition challenging the order of the Magistrate u/s 156(3) and also to resolve the necessary issues considering the right of the accused of a hearing as per the principle of Audi Altrem Partem.

References

  1. https://www.mondaq.com/india/civil-law/757740/1563-crpc-interlocutory-or-not-treading-a-paradoxical-course.
  2. Suresh Chandra Jain v. State of Madhya Pradesh and Anr. 2001 (42) A.C.C. 459.
  3. Anju Chaudhary vs State Of U.P.& Anr.
  4. Priyanka Shrivastav and Ors vs State of UP.
  5. Ganesh Krishnan vs Ramesh Nanjund Shastri, the Hon’ble Single Judge of the Karnataka High Court.
  6. Sakri vs. State of U.P., (2008) 2 SCC 171.
  7. Arun Kumar Singh @ Pappu Singh And vs State Of U.P Misc. Single No. 2173 of 2016.
  8. Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and others.
  9. Anil Kumar and others vs. M.K. Aiyappa and Anr 2013(10) SCC 705.
  10. M/s Sujan Multiports Ltd. versus State of Haryana and others.
  11. Amarnath Agrawal Versus Jai Singh Agrawal & Ors.
  12. Hon’ble Allahabad High Court rendered in Father Thomas v. State of U.P. & Anr.
  13. Jagannath Verma v. State of U.P
  14. Avinash v. State of Maharashtra.
  15. Raghu Raj Singh Rosh vs. Shivam Sundram Promoters Pvt. Ltd. & Anr. (2009) 2 SCC 363.
  16. Avinash vs State of Maharashtra.
  17. https://lawtimesjournal.in/there-is-nothing-in-section-1738-to-suggest-that-the-court-is-obliged-to-hear-the-accused-before-any-such-direction-is-made-sc/.

This Article is written by Somnath Iyer, Legal Associate, M. Tripathi & Co., Mumbai, practising at Bombay High Court, specialising in Commercial, Criminal and Cyber-Tech Law.


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