The article is written by Arryan Mohanty, a student of Symbiosis Law School, Nagpur. The article talks about the provisions of Section 156 of the Criminal Procedure Code, 1973, which deals with the powers of the police officer to investigate cognizable cases. The article exclusively discussed Section 156(3) and the judicial pronouncements related to it.

This article has been published by Sneha Mahawar.​​ 

Introduction

Our nation’s criminal justice process is separated into three steps: the investigation, the inquiry, and the trial. Every offence under the Indian Penal Code or any other legislation must be investigated, inquired about, and tried under the steps outlined in the Criminal Procedure Code, 1973.  According to Section 2(h) of the CrPC, “investigation” refers to all legal actions taken by this Code to gather evidence, whether a police officer, a person other than a magistrate, or both carry them out. 

An investigation is a methodical, meticulous, and thorough attempt to gather information about something complicated or secret; it is frequently formal and official. It refers to gathering information, moving objects, and looking for pertinent information. The police conduct investigations, which are the initial stage, and they typically begin following the filing of the First Information Report (FIR). Although the phrase “FIR” is not explicitly mentioned in CrPC, it generally means this. 

Anyone can begin the legal procedure by reporting a cognizable offence to the police. The police are required by law to open an investigation and record a case after receiving such information. 

According to Section 154(1) of the Code, any information relating to the commission of a cognizable offence provided to an officer-in-charge of the police station, whether verbally or in writing, must be reduced to writing and signed by the informer. Said information must be included in the FIR when it has been reduced to writing. 

The FIR is an essential document in our nation’s criminal justice system. From the informant’s perspective, its primary goal is to set the criminal justice system in motion. From the perspective of the investigating authorities, it is to gather information regarding the alleged illegal activity to take appropriate action to find and prosecute the guilty. 

Many people face this problem, where the police authorities must listen or file a complaint. The police authority, however, holds off on submitting a complaint or FIR because once one is filed, the police authority must act on or look into the situation. 

As a result, the police authority decided not to file the FIR. The Supreme Court has already made it clear that the police authority must register the FIR upon receiving a complaint in Lalita Kumari v. Govt. of UP and Ors.; the police authority is required to carry out this obligation. 

Such victims now have the option of having the case investigated by police, thanks to Section 156(3) of the CrPC. A complaint may be made to the magistrate, who may then order the police to conduct an investigation. This time, the police cannot disregard or refuse to file an FIR, which will trigger an investigation. But it’s important to remember that a Magistrate is not just a simple office. He must believe there is justification for the police to conduct an investigation. Here, the satisfaction itself is what is essential. However, a few fundamental principles of criminal law, such as complaint, investigation, inquiry, cognizance, etc., must be grasped to appreciate the concept of such satisfaction and grounds for satisfaction.

What does Section 156 CrPC talk about

According to Section 156 of the CrPC, the police are permitted to look into a criminal offence without a formal FIR or a magistrate’s order. The magistrate can order an investigation if the police don’t conduct one. The magistrate, however, cannot stop the police from investigating if they do so. 

Courts are prohibited from restricting or interfering with the police’s statutory right to conduct investigations. When the police prefer a charge sheet following an investigation, courts may or may not take action, but their role starts at that point. 

The police are given extensive authority under Section 156(1) to investigate a crime without a magistrate’s permission. The judiciary could not have interfered with or regulated the police’s legal investigative rights. The police are not allowed to investigate if the FIR or other pertinent documents fail to make any cognizable offence appear to have been committed, at least on the surface. 

In such a situation, the High Court may halt and quash the investigation by exercising its inherent powers under Section 482 or its powers under Article 226 of the Constitution. The police can investigate cognizable offences outside their local jurisdiction per Section 156(1)’s latter half. In the territorial jurisdiction case of Manoj Kumar Sharma v. State of Chattisgarh (2016), the Court highlighted that Chapter XIII of the Code establishes “jurisdiction of the criminal courts in inquiries and trials.”

It should be noted that the Chapter, as mentioned earlier, contains many provisions that give the court the authority to investigate or try a criminal case and that there is no absolute restriction on the investigation, inquiry, or trial of crimes committed outside of a given region or territory. 

By referring to Sections 177 to 188, this would be made apparent. It is evident from a reading of Sections 177 and 178 of the Code that Section 177 establishes an “ordinary” location for an investigation or trial. 

When it is unclear which of several local areas an offence was committed, or where the crime was committed, when the offence was partially committed in one local area and partially in another, or when it consisted of several acts performed in different local areas, Section 178 provides for a spot of investigation or trial. It may be investigated or tried by a court having jurisdiction over any of these local areas. 

Therefore, it cannot be claimed that the SHO needs more territorial authority to investigate the offence at this point in the investigation. However, if the officer determines following the inquiry that the reason for filing the FIR did not occur within his territorial jurisdiction, he will transmit the case to the relevant magistrate, who is authorised to take cognizance of the offence. No matter which officer leads the investigation to the trial, the case’s outcome—conviction or acquittal—is unaffected. 

That is primarily determined by the evidence presented during the trial. Any improper or incomplete investigation of the crime does not invalidate the trial unless it causes prejudice against the accused or a miscarriage of justice. 

In Hari Singh v. State of Uttar Pradesh (2006), it was decided that the complainant might bring the complaint before the magistrate if the police failed to investigate the incident. However, the complainant’s writ petition asking the CBI to conduct an investigation is unjustifiable.

Powers of the Magistrate to direct investigation

A magistrate authorised to take cognizance under Section 190 of the CrPC is given the authority to investigate any cognizable matter under Section 156(3) of the code, which applies at the pre-cognizable stage. 

According to Section 156(3) of the CrPC, the magistrate authorised by Section 190 of the CrPC may direct a police officer to investigate if the police authority fails to carry out its responsibility, which is to record the complaint or FIR. This clause applies when a police officer files a complaint or F.I.R. but fails to investigate thoroughly. The words “‘any Magistrate” refer to the judicial magistrate who is competent to take cognizance of a cognizable offence and not the executive magistrate. The Executive magistrate can’t direct the investigation of a cognizable offence. Any magistrate refers to the judicial magistrate, not the executive magistrate, who is qualified to take cognizance of a cognizable offence. An executive magistrate cannot direct the investigation of a cognizable offence. 

This subsection does not have the same authority as Section 202(1) to conduct an investigation. The first and second are exercisable at the pre-cognizable and post-cognizable stages, respectively. 

Before taking cognizance of the offense under Section 190(1)(a), in the event of a complaint regarding the occurrence of a severe crime, the magistrate may use his jurisdiction under Section 156(3). A magistrate cannot initiate the probe under this provision. 

Once the police have started investigating a crime worthy of investigation, the magistrate cannot conduct a magisterial inquiry. Suppose the police acted dishonestly in their investigative duties before taking consciousness under Section 156(3) of the Code and receiving the police’s final report. In that case, he has the authority to inform the complainant, record their statement and the statement of any additional witnesses, and issue a process under Section 204 of the Code.

The followings terms become clear in this context:

• The law does not allow a magistrate to order an investigation under Section 156(3) when he opts to take notice under the provisions of Chapter XIV. Instead, he can only do it before taking cognizance u/s 190, 200, and 204 during the pre-cognizance phase. He can, however, direct a police investigation—comparable to an enquiry described by Section 202 of the Code—in circumstances that do not fall under the proviso of this section.
• In cases when the magistrate decides to take cognizance, he may pick from the options listed below:

• He can read the complaint, and if he decides there are valid reasons to proceed, he can immediately summon the accused. However, he must first adhere to Section 200’s criteria and record the complainant’s or his witnesses’ testimony.
• The magistrate can delay procedural matters and oversee an independent investigation by himself.
• The magistrate can adjourn the procedural dispute and order a police investigation or another person to investigate.

• If the magistrate is not convinced that there are adequate reasons for proceeding after reviewing the statement of the complainant and the witnesses or as a result of the investigation and the inquiry ordered, he may dismiss the complaint.
• When a magistrate orders a police investigation before taking cognizance under Section 156(3) of the Code and receives the report; as a result, he has several options. He can act on the report and release the accused, issue formal charges against the accused immediately, or consider the complaint brought to his attention and take action under Section 190 of the Code.

The magistrate can use Section 156(3) power before taking cognizance. It served as a proactive reminder or instruction to the police to use their full investigative authority, which starts with Section 156 and ends with a report or charge sheet under Section 173. 

On the other hand, Section 202 applies during the post-cognizance phase, and the inquiry was assigned to determine if there was enough justification for continuing. As a result, the magistrate must only issue the direction required by Section 156(3) after applying their judgment. 

A directive is issued per the stated clause when the magistrate declines to take cognizance, does not see it necessary to postpone a matter, and determines that it is made out to proceed promptly. 

In other words, such a direction is issued when it is deemed acceptable to immediately direct investigation due to the credibility of the material available or considering the interest of justice. The interest of justice directs the Magistrate’s judgment from case to case, subject to these basic principles drawn from the structure of the Code. 

In the case of CBI & others v. Rajesh Gandhi & others (1996), the Supreme Court ruled that “no one can request that a particular agency investigate an infraction.” This point of view was accepted in Sakiri Vasu v. State of U.P. and Others (2007). 

In this case, it was further ruled that if a person has a complaint that the police station is not filing his FIR under Section 154 of the Criminal Procedure Code, he may submit an application in writing to the Superintendent of Police according to Section 154(3) of the Code. 

The aggrieved party can apply to Section 156(3) before the learned magistrate in question even if that does not result in a satisfactory outcome, meaning that either the FIR is still not registered or that even after it has been registered, no proper investigation is conducted. Therefore, for a case to be registered under Section 156(3), two requirements must be met:

• The SP and the Police Station have not filed the FIR.
• Although the SP and the Police Station filed the FIR, an adequate investigation was not conducted.

A judicial officer is given special authority in cases where the police refuse to or cannot arbitrarily register an FIR. Before the judgment, as mentioned earlier, the aggrieved parties used to apply to Section 482 of the Code. 

Since the aggrieved were now required to go to court under Section 156(3) if their FIR was not registered, the above decision provided the magistrates with this authority. The Supreme Court once more affirmed the Sakiri Vasu ruling in the case of M. Subramaniam and Others v. S. Janaki and Others (2020), citing an earlier decision from the Court in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others (2010). 

The remedy for the aggrieved party is not to go to the High Court under Article 226 of the Constitution of India but to approach the concerned magistrate under Section 156(3) CrPC if they have a grievance that the police have not registered their FIR or that, having been written, a proper investigation is not being done.

Powers of the police under Section 156(3) CrPC

An order from a magistrate to look into Section 156(3) may only be obtained by the officer in charge of a police station. No commands or powers may be provided to the officer in charge of a police station outside the magistrate’s jurisdiction area, according to a recent decision by the Delhi High Court in Ramesh Awasthi v. State of NCT of Delhi (2017), which relied on the Supreme Court’s decision in Central Bureau of Investigation v. State of Rajasthan and Anr. (2001), even though Section 154 of the Criminal Procedure Code prohibits the officer in charge who receives the information from registering it, Sections 155 and 156 give the person in charge the authority to look into offences committed within the station’s boundaries. 

Hence, a magistrate has the authority to direct the police officer in charge of a station to look into a cognizable offence subject to local jurisdiction at the station. A magistrate must uphold territorial jurisdiction as a result. Let’s say it lacks the power to try the crime mentioned above. If so, it is not authorised to issue an order under Section 156(3). 

The Hon’ble Apex Court had to consider whether a magistrate might direct the CBI to look into an offence under Section 156, as was previously mentioned. “We don’t have to travel beyond the scope of that issue,” the court ruled, “since the current dispute is limited to whether a magistrate can ask the CBI to conduct the investigation in the exercise of his jurisdiction under Section 156(3) of the Code.” The Court emphasised that the sub-magisterial Section’s authority is thus restricted to directing a police station’s office to conduct the investigation.

The Division Bench of the Bombay High Court expressed a comparative perspective in its decision in the case of State of Maharashtra v. Ibrahim A. Patel  (2007). The magistrate was deemed to have the authority to take cognizance of an offence under Section 190 of the Code and to direct any police officer in charge of the police station to undertake an investigation based on a straightforward interpretation of Section 156(3). An officer is qualified to perform his duties within the circumscribed area around such a police station. The Court of the Magistrate has authority over this territory.

The magistrate can only direct an investigation under Section 156(3) to the SHO (officer-in-charge) of the police station located within his local jurisdiction. It can be inferred based on the established legal precedent. 

A magistrate is not permitted to order the investigation of a superior police officer, any other investigating agency (such as the CBI or CID), or the officer in charge of a police station outside of his territorial jurisdiction using the authority granted to him by Section 156(3) of the Code. This suggests that the magistrate cannot issue directions under Section 156(3) if an offence is claimed to have been committed outside the magistrate’s territorial jurisdiction. 

When does Section 156(3) CrPC come into play

In Mohd Yousuf v. Smt. Afaq Jahan and Anr (2006), the Supreme Court stated that any judicial magistrate might order an investigation under Section 156(3) of the Code before taking notice of the offence. If he does, he is not allowed to force the complainant to take an oath because he was unaware of any wrongdoing. 

The magistrate can order the police to file an FIR to enable them to begin an investigation. It is not against the law to do this. After all, Section 154 of the Code states that filing an FIR requires entering the essential details about the commission of the cognizable offence in a book maintained by the person in charge of the police station. 

It is the responsibility of the officer in charge of the police station to report the FIR regarding the cognizable offence disclosed by the complaint even if a magistrate does not expressly direct an investigation under Section 156(3) of the Code that an FIR should be registered because that police officer could only take further steps considered in Chapter XII of the Code after that.

This Court adopted the same stance in the case of Dilawar Singh v. State of Delhi (2007). The Court made it clear that even if an FIR has been filed and the police have conducted an investigation that the person who feels aggrieved does not find satisfactory, that person may still go to the magistrate under Section 156(3) of the Code. 

If the magistrate is satisfied, they may order a proper investigation and take other appropriate actions. Therefore, if the magistrate believes that the police need to do their job correctly or is dissatisfied with the case investigation, he may order the police to oversee and monitor the enquiry. 

In Vinubhai Haribhai Malaviya and Ors. v. State of Gujarat and Another (2019), the legal issue of whether the magistrate has the authority to order further inquiry after the police file a charge sheet and, if so, up to what stage of a criminal case was examined. After citing numerous precedents and pertinent legislative provisions, it was determined that the magistrate has broad discretion under Section 156(3) of the Criminal Procedure Code because this judicial authority must be satisfied that a legitimate investigation by the police is conducted. 

According to Article 21 of the Constitution, the magistrate must have access to all necessary powers, including incidental or implied powers, to ensure that a ‘proper investigation’—defined as a fair and just investigation by the police—takes place, which the magistrate is to supervise. This power undoubtedly includes ordering additional investigation after receiving a report under Section 173(2). Even narratively, the “investigation” mentioned in Section 156(1) of the CrPC would, according to the definition of “investigation” under Section 2(h), include any proceedings for the gathering of evidence carried out by a police officer; this would undoubtedly have proceedings by way of a further investigation under Section 173(8) of the Code. 

A magistrate may use their authority under Section 156(3) at the pre-and post-cognizance stages if there is a conclusive legal precedent. The power may include giving the police station’s officer-in-charge instructions on recording a case and conducting an investigation. 

A magistrate may order the officer in charge of the pertinent police station to conduct a proper investigation and take any other actions that may be required to ensure a formal inquiry, including overseeing the process, in cases where an FIR has already been filed.

When a victim or informant requests that a magistrate give orders for the registration of an FIR under Section 156(3), they must follow all of the steps outlined in Sections 154(1) and 154(2). The court stated in Priyanka Srivastava and Ors v. State of U.P. and Ors (2015) that a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the Magistrate’s jurisdiction. 

Aside from that, the learned magistrate would be wise to check the facts and the veracity of the accusations under the right circumstances. The applicant may become more responsible thanks to this affidavit. Aside from that, it becomes even more unsettling and scary when one tries to track down those giving orders under a statutory provision that can be contested under the terms of the relevant Act or Article 226 of the Indian Constitution. 

However, it is against the law to behave unfairly in a criminal court, as if someone were attempting to settle a score. When submitting a petition under Section 156(3), we have previously said that there must have been preceding applications made under Sections 154(1) and 154(3).

Similarly, the Patna High Court held in Yogesh Malhotra v. State of Bihar (2017) and Bipin Kumar Singh & Another v. State of Bihar and Ors. (2016) that, in the absence of compliance with Sections 154(1) and (3) of the Criminal Procedure Code, an informant could not approach a magistrate seeking directions for the registration of an FIR under Section 156(3) of the Code.

How is an investigation under Section 156(3) different from an investigation directed under Section 202 CrPC

Section 156 of the Code deals with the investigative powers of police personnel; Section 202‘s concept of an investigation differs from Section 156’s. The authority granted by Section 202 is distinct. 

The report requested under the above rule is only intended to determine “whether or not there is an adequate reason for proceeding.” The procedure under Sections 157 or 173 is not meant to be followed if this is the anticipated outcome. 

According to Section 157, the police must report any police officer they have reason to believe committed the crime after learning about it. The police must next go to the scene, investigate the information, and take action to make an arrest. The police must then document any statements and reports for the magistrate to act under Section 190. This procedure only applies when the police obtain information on a crime punishable by law, file a case, and form the necessary opinion. 

Provisions concerning “information to the police and their authority to investigate” are included in Chapter XII of the Code. The actions a magistrate must take before, during, and after taking cognizance of any offence on a complaint are covered in Chapter XV, which also contains Section 202. 

The provisions of the two chapters mentioned above deal with two distinct aspects, despite the possibility of a common element—namely, a complaint made by an individual—in both cases. The ability of police personnel to investigate cognizable offences is covered in Section 156 of Chapter XII. A magistrate may “direct an investigation by a police officer,” as stated in Section 202. 

However, the investigation envisioned by Section 202 is distinct from the investigation envisaged by Section 156 of the Code. Chapter XII has detailed the various procedures used for investigations under Section 156 of the Code. A diary to be kept by the officer in charge of a police station would be used to record the gist of the relevant information about the commission of a cognizable offence at the start of such an investigation. 

According to Section 173 of the Code, the inquiry launched after that can only be completed by the police filing a report. The police may begin the investigation envisioned in that chapter even without a magistrate’s authorisation. But that does not imply that an investigation ordered by a magistrate under Section 156(3) would be different. Only the report envisioned in Section 173 of the Code may conclude such an investigation. 

However, it’s important to note that a magistrate must first take cognizance of the offence before ordering an investigation under Chapter XII. However, if the magistrate plans to take cognizance of the crime, he is not required to conduct any such investigation. After becoming aware of the violation, he must pursue the steps outlined in Chapter XV of the Code. It is evident from a reading of Section 202(1) of the Code that the investigation mentioned therein is limited.

The magistrate can order anyone, including a police officer, to conduct such an investigation. Such an investigation serves to assist the magistrate in determining if there is sufficient justification for him to move on. The last lines of Section 202(1), “or require an investigation to be performed by a police officer or by such other person as he considers proper, to decide whether or not there is sufficient reason for proceeding,” make this clear.

Judicial pronouncements

• According to the decision in Madhubala v. Suresh Kumar (1997), a magistrate may take cognizance of an offence under Section 190(1)(a) or order a police inquiry under Section 156(3) after receiving a complaint that discloses a crime. Every time a magistrate orders an investigation into a complaint, the police must file a cognizable case, treating the complaint as an FIR. After receiving such a directive under Section 156(3), the police must investigate the complaint under Section 156(1). After the investigation is complete, they must submit a police report under Section 173(2), on which a magistrate may exercise their discretion under Section 190(1)(b) rather than Section 190(1)(a).
• In Srinivas Gundluri & Ors. v. M/s. SEPCO Electric Power Construction Corporation and Ors. (2010), it was concluded that by making the order, the magistrate had just pursued the complaint without considering whether there was a valid basis for doing so. He did not invoke Chapter XV of the Code by questioning the complaint or his witnesses under Section 200. The magistrate has acted within his authority by ordering the police to conduct an investigation, file a charge sheet, or final report. In this instance, the respondent filed a criminal complaint against the appellant in the judicial magistrate’s court. After their application was granted under Section 156(3), the original complaint was sent to the relevant police station. It was used to file an FIR after due investigation and present a charge sheet.
• In Madhao Rao v. State of Maharashtra (1971), it was stated that the magistrate had the authority to order an investigation even if the complaint had been submitted under Section 200 as a Private Complaint. The magistrate is not required to respond immediately to a complaint submitted under Section 200 only because it is a private complaint. The magistrate has the option to decide whether or not to take cognizance. Section 200 by itself is a pre-cognizance stage. Thus the magistrate is free to order a police investigation or to have the magistrate himself conduct an inquiry. Following this inquiry or investigation, the magistrate will decide whether to take action based on the merits and available information. The magistrate may only act in this manner, i.e., seek an alternative remedy, before taking cognizance. 
• In Ramesh Bhai Pandurao Hedau v. State of Gujarat (2010), it was determined that Sections 156(3) and 202 of the Code give the magistrate the authority to direct an investigation. Pre-cognizance is when the power under Section 156(3) is used, but post-cognizance is when the authority to commission a similar investigation under Section 202 is used. The Magistrate, in this case, decided to follow the latter approach and treated the protest petition submitted by the appellant as a complaint under Section 200 of the Code. As a result, he proceeded under Section 202 and retained the case for an investigation into the facts of the case. There is nothing wrong with how the magistrate handled the matter. Suppose the magistrate feels it appropriate, at Section 202(2). He may either dismiss the complaint under Section 203 or make a motion under Section 193 and commit the case to the Court of Session.
• In Ashok Gyanchand Vohra v. State of Maharashtra (2005), it was decided that the Special Court has the authority to order an investigation under Section 156(3) after receiving a private complaint about the commission of an organised crime under Sections 9 and 23 of the Maharashtra Control of Organized Crime Act, 1991. Additionally, it was noted that the imposition of a sanction under Section 23(2) is not required to take cognizance of a private complaint.
• It was held in Surendra Nath Swain v. State of Orissa (2005) that a special judge appointed under the Prevention of Corruption Act, 1988 is not a magistrate within the definition stated under Section 156(3) of CrPC. Hence, he cannot refer a complaint to the police for investigation.
• The Supreme Court ruled in Devarapalli Lakshminarayana Reddy v. V Narayana Reddy (1976) that when a magistrate receives a complaint. He is not required to acknowledge. The phrase “may order such investigation” in the provision’s language makes it apparent that the magistrates have discretion, which varies from case to case. The magistrate is not required to instruct the police to file an FIR. Consequently, the language of Sections 154 and 156(3) of the code differs significantly.
• In Ramdev Food Products v. State of Gujarat (2015), the Supreme Court observed that a directive under Section 156(3) should only be given following the Magistrate’s application of thought. Only at the pre-cognizance stage can a magistrate order an investigation under Section 156(3). As a result, if the magistrate decides to take cognizance but the judge does not take cognizance under Sections 190, 200, or 204, the magistrate is not authorised by law to order any investigation under Section 156(3).
• In Skipper Beverages Pvt Ltd. v. State (2001), it was determined that an FIR should only be filed where further investigation is necessary or when it is necessary to get evidence that the complainant was unable to present to the court under Sections 200 or 202 of the Code. Up to this point, most Indian courts have always complied with this judgment. Before deciding Section 156(3) of the Code, a magistrate must exercise judgment and cannot make these decisions merely based on the complainant’s request. These powers should be used primarily in situations where the allegations are severe, the complainant cannot access the evidence, or interrogation in a detention facility appears to be required to recover an article or uncover an act. 
• In Arvindbhai Ravjibhai Patel v. Dhirubhai Sambhubhai (1997), the Gujarat High Court’s honourable judge expressed his disapproval of the growing practise of calling the police to look into instances under Section 156(3) of the Code and cautioned the Magistrates not to make immediate decisions ruled that magistrates should only use Section 156(3) of the Code when the help of the police is indispensable. The magistrate believes that the complainant alone may not gather and present evidence to support the claims. Additionally, under Section 202, if the complainant believes he cannot submit the required proof, the magistrate may order the police to conduct an investigation and present evidence, but he cannot make any arrests. High Courts’ stance on this subject has been unequivocal: they believe that FIRs should only be filed when a severe crime has been committed or when the evidence demonstrates the commission of a recognised offence.
• In Father Thomas v. State of UP (2010), the Allahabad High Court’s full bench ruled that a prospective defendant lacks locus standi to dispute a Section 156(3) investigative order by submitting a revision petition before being found guilty or having legal action taken against him. In holding that a revision petition against such an order directing the registration of an FIR under Section 156(3) of the Code was unpersuasive, the full bench noted that the accused has a right to present his defence only during the trial. Even upon filing a complaint, when the magistrate moves to take cognizance, the prospective accused is not permitted to intervene or present his case once a summons is issued.  
• In K. Vijaya Laxmi v. K. Laxminarayana and Ors. (2000), the High Court of Andhra Pradesh ruled that it’s unfortunate to note that the learned magistrate proceeded u/s 156(3), in this case, and then, upon the filing of the charge sheet by the police, took cognizance of the offence based on a such police report, ignoring the provisions under Section 198 of the Code. According to Section 198 of the Criminal Procedure Code, the magistrate is not permitted to take cognizance of an offence that violates Section 494 of the IPC until a complainant who the crime has harmed makes a formal complaint. The de facto complainant, in this case, is the wife of accused No. 1, who was wronged by the offence committed by accused 1 and 2. According to Section 198(1)(c) of the Code, the de facto complainant’s complaint or a complaint made on her behalf could have led to the offence being recognised as a crime. Given this clause, the learned magistrate should not have recognised the violation based solely on the police charge sheet that was submitted. This might have serious repercussions. 
• It was determined in the case of Polavarapu Jagadiswararao v. Kondapaturi Venkateswarlu (1990) that upon receipt of a complaint under Section 200 of the Criminal Procedure Code, the magistrate shall record the sworn statements of the complainant and the witnesses, if any, present & may take cognizance of the offence under Section 190(1)(a) and issue process, or postpone the issue of process under Section 202. Under Section 202 of the Criminal Procedure Code, the magistrate can conduct an independent investigation or order a police investigation. The magistrate may also issue or delay the issuance of the process. The magistrate examines the complaint, the complainant’s sworn statement, and any recorded testimony from the witnesses, if any, while exercising his discretion and then decides whether to take cognizance of the offence under Section 190(1)(a), postpone issuing a summons under Section 202 of the Criminal Procedure Code, or refer the case to the police under Section 156(3) of the Criminal Procedure Code for an investigation. He may only send a matter to the police under S. 156(3) to an enquiry if he determines that the evidence is insufficient to take cognizance of the offence. There is no need to invoke S. 156(3) once the magistrate has decided that he can take cognizance of the crime after carefully reviewing the complaint, the sworn statements, and other evidence. 
• In Rasiklal Dalpatram Thakkar v. State of Gujarat (2009), it was decided that, unless there are very particular and unusual circumstances, a Police Officer with authority u/s156(1) must carry out an investigation when the magistrate requests it. Because the crime was committed outside the jurisdiction of the investigating agency, it couldn’t stop looking into it. 
• The Supreme Court stated in the Union of India v. Prakash P. Hinduja & Another (2003) that a magistrate could not interfere with a police inquiry. However, the ratio of this judgment would only be relevant if the police conducted a thorough investigation. The magistrate can order the officer in charge of the police station to conduct a proper investigation and can further monitor the same if he is satisfied that it has not been done or is not being done after receiving an application u/Section 156(3) (though he should not himself investigate).
• In Navkiran v. State of Punjab (1995), the petitioner and 16 other Punjab & Haryana High Court advocates addressed a letter to the Chief Justice of India voicing their concern about kidnapping incidents of advocates and their security. The names of Ranbir Singh Mansatia, Jagwinder Singh, and Kulwant Singh, all of whom were advocates who were kidnapped, were explicitly mentioned. The Supreme Court treated this letter as a petition under Article 32 of the Constitution. It directed the CBI to hold an investigation into the kidnapping and submit its report to the Supreme Court.
• In Subhash Krishnan v. State of Goa (2012), the complainant didn’t offer himself for cross-examination as such investigation of the offence started based on telephone information and a detailed complaint filed by the person who was brought by the police party which was sent to the place of occurrence. The complaint led to the apprehension of the accused, along with a car and weapons. The complainant and many witnesses supported the prosecution case based on the complaint. It was held that in such circumstances prosecution cases can’t be thrown overboard only because the complainant could not be cross-examined.
• Two people who were to be questioned as the investigating officer pardoned prosecution witnesses in P Sirajuddin v. State of Madras (1970). It was decided that the Code does not recognise immunity from prosecution and that police authorities did not have discretion over awarding amnesty. 
• In Hasan Ali Khan v. State (1991), it was decided that proceedings should not proceed if the FIR and other materials, such as the charge sheet, fail to identify any offence, if the proceedings were started dishonestly, or if intended to misuse the legal system. Under inherent authority u/s 482, the High Court of Andhra Pradesh may halt criminal proceedings.
• In Parminder Kaur v. State of UP (2009), the complainant filed an FIR u/s 420, 467, 468, and 471 of the IPC against an older woman. The accusations were deemed malicious and retaliatory by the court. The decision was made that the complainant had no legitimate reason to file an FIR against an older woman. The worried investigating officer abused the investigative process and began bringing charges against the older woman. After being detained, the older woman was forced to spend more than a week in jail. The Supreme Court voiced displeasure with investigating such a case and the trial court’s automatic recognition of an illegitimate offence. The prosecution case was consequently thrown out since it was determined to have misused the legal system.
• It was held in Jamuna v. State of Bihar (1966) that the duty of the investigating officers is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the absolute objective truth.
• A police head constable filed an FIR alleging that he had been offered a bribe in Bhagwan Singh v. State of Rajasthan (1975). He looked into the situation. The complainant himself looked at it as a flaw that would inevitably cast doubt on the prosecution’s case. 
• A practising lawyer, his wife, and his 2-year-old son were kidnapped and killed in the case of Punjab & Haryana High Court Bar Association v. State of Punjab (1993). The charge sheet was issued after the police finished their investigation, but the legal community was unsatisfied and wanted a court inquiry. The Supreme Court said in a special leave petition that they would typically not reopen the investigation after it was finished and a charge sheet was filed. However, in appropriate circumstances, a further investigation into the case may be authorised to satisfy the law and inspire public trust fully. 

• The FIR is merely a report of the information on the commission of an offence; it is not substantive proof because the police have yet to look into the violation, it was ruled in Sohan Lal v. State of Punjab (2003).
• In the State of Rajasthan v. Kishore (1996), it was decided that the prosecution’s case could not be called into question by the investigating officer’s one irregularity or illegality, nor could trustworthy and reliable evidence be disregarded to record an acquittal on that basis.
• In K Chandrasekhar v. State of Kerala (1998), the State Government approved the CBI to investigate a case containing offences punishable under the Official Secrets Act, 1923. The CBI concluded its inquiry and submitted a final report. The State Government then revoked the approval and requested that the state police conduct a more thorough investigation into the incident. It was decided that since the accused’s guilt had already been determined before any further inquiry began—and this at a time when the commission of the offence itself still needed to be established—it was clear that the investigation could not and would not be impartial. Its conclusion is inescapable. The State Government’s statement that it is withdrawing consent could be invalidated on improper use of authority. 
• In Kunga Nima Lepcha v. State of Sikkim (2010), it was brought up that the Supreme Court and different High Courts have previously awarded remedies relating to criminal case investigations. Writ jurisdiction has once been used to track the development of continuing investigations or transfer existing enquiries from one agency to another. Such instructions have been given when a breach of fundamental rights is evident, which may result from agency inaction or apathy, among other things. Specific obstacles to the inquiry process, such as tangible threats to witnesses, the destruction of evidence, or excessive pressure from powerful interests, call for judicial involvement through writ jurisdiction. In any of these situations, the writ courts can only act as a corrective measure to ensure the investigation’s objectivity is not jeopardised. However, starting a probe with a writ court is not practical. This responsibility belongs to the executive branch, and it is up to the investigating agencies to determine if the information put up before them is adequate justification for opening an inquiry. The courts of first instance are given some authority in the Code to exert some control over ongoing investigations. It is not advisable for writ courts to interfere with criminal investigations without clear guidelines since statutory laws regulate the scope for action by the trial court.
• In Karan Singh v. State of Haryana (2013), it was decided that errors in the inquiry are only fatal to prosecution proceedings if they are so severe that the integrity of the entire investigation can be questioned. Despite the investigation’s murky nature and severe unfairness findings against the officer, the government did nothing. As a result, the government was told to act under the law.
• The Supreme Court ruled in VK Mishra v. State of Uttarakhand (2015) that “the investigating officer is not required to anticipate all potential defences and probe from that viewpoint.” Any oversight from the investigating officer cannot, in any case, be used against the prosecution. Justice requires that these actions or inactions of the investigating officer not be utilised in the accused’s favour because doing so would equal rewarding those actions. 

Conclusion

Sections 156, 190, 200, and 202 of the CrPC provide a detailed description of the Magistrate’s powers and his options for ordering an investigation, taking cognizance, laying charges, etc. 

The magistrate can, however, order an investigation, the taking of cognizance, the drafting of charges, etc., even though the magistrate has the authority to order an investigation under Section 156(3) at the pre-cognizance stage, even after a charge sheet or a closure report is submitted, once cognizance is taken. 

The accused person appears under that. He would be devoid of any authority to order additional investigations either suo moto or acting on the request or prayer of the complainant. Though it’s at the post-cognizance stage, it’s like an inquiry to determine whether the proper procedure was followed. Such an investigational directive does not constitute further investigation as defined by Section 173(8) of the Code. 

Hence, Section 156(3) of the CrPC is broad enough to grant a magistrate all the authority required to ensure a proper investigation, including the power to order the registration of an FIR and a formal investigation if the magistrate is convinced that the police have not conducted or are not conducting a proper investigation. 

Although briefly stated, Section 156(3) of the Code is reasonably broad and will cover any incidental powers required to ensure a thorough investigation.

In conclusion, it may be suggested as follows:- 

1. Magistrates acting under Section 156(3) Cr Pc will be competent to order the case (FIR) registration and the subsequent investigation. 
2. Magistrates, while passing orders, act by the application of the mind, which should be reflected in the order.
3. CrPC be amended to provide an accompanying affidavit application under Section 156(3) to make complainants responsible.
4. Instead of ordering the police to register FIR, magistrates may order preliminary enquiry by the police to ascertain the truthfulness and genuineness of complaints. 
5. In cases involving public servants, magistrates should only pass orders directing FIR to be registered if the prosecution produces a valid sanction under Section 197(1).
6. Regarding complaints against police officers for registering FIR, detailed scrutiny is made regarding the genuineness of the complaint before writing the case so that vexatious prosecutions are averted.
7. Magistrates must send only deserving cases for police investigation.

Frequently Asked Questions (FAQs)

What does the phrase “taking cognizance” mean?

The Code of Criminal Procedure does not define “taking cognizance.” To take action under Section 190(1)(a) of the Code, a magistrate must not only have considered the contents of the petition but also have done so intending to follow a specific course of action before forwarding the complaint for additional investigation. Under Section 156(3) of the Criminal Procedure Code, a magistrate may also order an investigation.

How should one respond if the police station declines to file the FIR?

The police station must submit the FIR for any crimes punishable by law. The Assistant or Deputy Commissioner of Police of the relevant zone or the Commissioner of Police may be contacted by mail with the substance of the information if the Police Station declines to record an FIR. If convinced that the information reveals the commission of an offence punishable by law, the FIR must be filed, and an investigation launched. You can file an RTI, a complaint to the State Home Ministry, a private complaint with the magistrate under Section 190 of the Criminal Procedure Code, or a Vigilance/Anti-Corruption Complaint against the police officials if the FIR has still not been filed.

Can the police call someone in for an investigation even after receiving anticipatory bail from the court?

Certainly, yes. The court prohibits only the arrest; police may still summon the accused for questioning. It is almost always a requirement of anticipatory bail that the accused make himself available for an investigation when the investigating officer requests it. The investigating officer may request that the court cancel the anticipatory bail if the defendant refuses. Even if the offence is non-bailable, if the investigating officer determines that a criminal case has been made against an accused to whom the court has granted anticipatory bail, he will not arrest him but release him on bail.

References

• https://patnahighcourt.gov.in/bja/PDF/UPLOADED/BJA/BLOGSJUDGMENT/1.PDF
• https://patnahighcourt.gov.in/bja/PDF/UPLOADED/BJA/179.PDF
• https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2758045_code2533671.pdf?abstractid=2758045
• SN Mishra, The Code of Criminal Procedure, 22nd Edition (2020), Pg.234-246
• RV Kelkar’s Criminal Procedure, 7th Edition (2021), Pg.132-136
• Ratanlal & Dhirajlal, The Code of Criminal Procedure, 22nd Edition (2017), Pg.288-302  

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