Investigation under CrPC is defined as “all proceedings under the code for collection of evidence conducted by a police or by any person (other than the Magistrate) who is authorized by a Magistrate in this behalf”[1].
Section 39 of CrPC mandates anyone who is aware about the commission or intention of any person to commit, any offence under IPC must give the information to the nearest Magistrate or Police Officer. Further section 154 of the same code makes sure that the information or about such cognizable offence is recorded and investigated by the police. This information mentioned under section 154 is recorded as First Information Report or F.I.R.
It is the responsibility of the police to make sure that the FIR is registered once a complaint relating to commission of a cognizable offence is received. However, If such a complaint is not registered, as per section 154(3) the informant may approach any Senior Police official or the Superintendent of the Police (SP) with a written application. In case even the SP doesn’t take necessary steps to register F.I.R and no proper investigation is done, then the aggrieved person can file an application before the Magistrate having jurisdiction as per section 156(3).[2]Who will then pass an order directing the police to register the F.I.R. and conduct investigation accordingly.[3]
Under section 156 the police are adorned with power to conduct investigation for cognizable offence[4] even without an F.I.R. Whereas in section 156(3) the magistrate exercises power to direct the police to conduct investigation ( in respect of cognizable offence). The powers of the magistrate are not expressly mentioned in section 156(3), if so then there is chance for confusion as to whether the Magistrate has implied power to direct the registration of criminal offence and /or order the concerned police station to conduct proper investigation and take all necessary steps to monitor and ensure proper investigation or not. No one can insist that the investigation for an offence needs to be conducted by a particular agency.[5]
Section 156 (3) also provides that the Magistrate has the independent power to order further investigation or interfere, if it was not done in a free, fair and proper manner. The Magistrate can order to further investigation even after the final report is submitted.[6] This section does not impose any duty on the Magistrate to record the reason. It is also to be noted that the order made under section 156 (3) is peremptory in nature and exercised at the pre-cognizance stage.
In Tula Rama v. Kishore Singh,[7] the Supreme court held that the Magistrate can only order investigation as per Section 156(3) in the pre -cognizance stage. In simple words before taking cognizance under section 190,200 or 204 of CrPC.
If the Magistrate after reading the complain feels that the avernments in the complain disclose a cognizable offence, then he will forwards it to the police for further investigation.[8] Since the time of the Court is valuable and it is primarily the duty of the police to investigate.[9] One of the main aims of this section is to control and curtail the arbitrariness of the police authorities in matters regarding F.I.R registration and investigations.[10]
In the case of Anil Kumar v. M.K.Aiyappa[11] and others, the Supreme Court held that the Magistrate cannot only act as a post office but should pass an order reflecting application of mind. The Magistrate cannot just order for investigation against a public servant without any valid sanctions.[12] A mere statement that he has gone through the documents, complains and heard the complaint is not sufficient. The bare minimum requirement is that the Magistrate has to verify whether the ingredients in the complaint is enough to constitute the offence has been done or not.[13]
The Division Bench of Karnataka High Court in Guru Dutt Prabhu & ors v. M.S. Krishna Bhat & ors., observed that if every complaint was sent to the police for investigation without application of mind, there are chances that the provision could be misused.[14] Hence the Supreme Court said that section 156(3) gives Magistrate the power to direct the police to initiate investigation but it has to be carried on proper grounds in judicious manner and not mechanical.[15] So in cases where the allegations are not that serious and the informant is in possession of the evidence, then there is no need to pass orders under section 156(3). The order needs to be passed only after application of mind and if the Magistrate feels that the informant himself is not in a position to obtain the evidence on his own.
On bare reading of section 156(3) it says any magistrate empowered under section 190 can order the investigation.[16] Once the Magistrate takes cognizance of the offence and moves on as per the procedures established in chapter XV of the code, he cannot further the investigation under section 156 (3). But its is not necessary for the Magistrate to always pass and order to register and investigate based application received under section 156(3) it can also be treated as a complain case.[17] The word used in the section is “may” which means its left to the discretion of the court to make the decision whether to initiate investigation or not.[18]
Conclusion
We can say that the Magistrate has the power to direct registration of F.I.R. and directing investigation to the police but it should not be done mechanically. The court needs to be satisfied about the ingredients of the application and decide if it is enough for the commission of a cognizable offence. Further if the court wants the Magistrate may treat the application as a complaint case even if it was applied under section 156(3) and thereafter follow the procedure mentioned under section 200-202.
[1]State of Uttar Pradesh v. Sant Prakash, [ (1976) Cri LJ 274 ALL]
[2]Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhane & Ors., [(2016) 6 SCC 277]
[3]Sakiri Vasu v. State of UP, [(2008) 2 SCC 409]
[4] Section2(c) CrPC defines Cognizable offence as “a case in which, a police officer may, in accordance with the FirstSchedule or under any other law for the time being in force, arrest withoutwarrant.”
[5]CBI & another v. Rajesh Gandhi, [(1997) Cr.L.J 63]
[6]State of Bihar v. A.C. Saldanna, [AIR (1980) SC 326 : (1980) Cri LJ 98]
[7]Tula Ram v. Kishore Singh,[(1977) 4 SCC 459]
[8]Srinivas Gundluri v. SEPCO Electric Power Construction Corpn.,[ (2010) 8 SCC 206 : 2010 Cri LJ 4457]
[9]Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, [(1976) 3 SCC 252].
[10]M/s Skipper Beverages Pvt. Ltd v State, [ (2001) 2 JCC (Delhi)].
[11]Anil Kumar and others v.M.K.Aiyappa and another, [(2013) 10 SCC 705]
[12]Section 19(1) of Prevention of Corruption Act, 1988
[13]State of Maharashtra v. Shashikant s/o Eknath Shinde, [(2013) ALLL MR (Cri) 3060]
[14]Guru Dutt Prabhu & Ors. V. M.S. Krishna Bhat and Ors,[ (1999) Cri. LJ 3909]
[15]Suresh Chand Jain v. State of Madhya Pradesh, [ (2001) 1 AD Crl. S.C. 34]
[16]Bateshwar Singh v. State of Bihar, [ (1992) 40 BLJR 779, 1992 CriLJ 2122.]
[17]Chandrika Singh v. State of U.P. & Ors, [ (2007) ACC 777].
[18]Sukhwasi v. State of Uttar Pradesh, [ (2008) Crl.LJ 472].
This article is written by Sharon Ann Babu, Student of Symbiosis Law School, Pune.
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