The article seeks to provide a brief analysis of Section 156 of the Code of Criminal Procedure, 1973. An attempt has been made to identify the powers of the police authorities and the Magistrate under the provision in light of various judicial precedents

Introduction

Investigation of a crime is a vast procedure under the Code of Criminal Procedure, 1973 (“CrPC”). Section 2(h) of the CrPC defines investigation as any proceeding conducted by a police officer or a person authorised by the Magistrate (other than the Magistrate herself) for the purposes of collecting evidence regarding the crime. The police can investigate only under three circumstances: when they receive information regarding the commission of any cognizable offence; when they have reasons to suspect any person for the commission of any cognizable offence; and when a Judicial Magistrate orders such an investigation.

The police officer investigating the commission of a cognizable offence has been provided with certain powers under the CrPC. Section 156 of the CrPC deals with the powers of the police officer investigating a cognizable offence. The article deals with the essential features and scope of Section 156 of the CrPC.

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Section 156 CrPC : an overview 

Sub-section 1 of Section 156 empowers the officer-in-charge of a police station to investigate any cognizable offence without the order of the Magistrate within the local jurisdiction of such court. Further, sub-section 2 deals with the power of the police and provides that the investigation carried out by an officer cannot be questioned at any stage by virtue of this provision. Sub-section 3 deals with the powers of the Magistrate to order for an investigation. These powers bestowed upon the police and magistrate has been dealt more elaborately hereafter.

Scope of Section 156 CrPC 

The powers of the police to investigate a crime have been provided under Sections 154 and 156 of the Code. The basic difference between the powers under both provisions is that under Section 154, the police may start the investigation only on receipt of information, whereas under Section 156, the police have the power to start an investigation even on its own motion or knowledge. The scope of Section 156 extends only to situations where the powers envisaged to the police are exercised in accordance with the procedure established by law. This view has also been upheld by the Hon’ble Supreme Court in the case of H.N. Rishbud and Inder Singh v. State of Delhi (1954). If the powers are exercised by illegitimate means, the Magistrate may interfere with the investigation. Further, the investigation conducted by the police under Section 156 has to be construed in accordance with Section 173 of the Code, wherein the police have to submit the final report of the investigation to the Magistrate competent to try the matter.

Investigation under Section 156 is different from investigation under Section 202 of the Code. The scope of Section 202 extends only to the limit of assisting the Magistrate to decide whether he had sufficient grounds to proceed further. On the other hand, Section 156 confers unrestricted power to the police to conduct an investigation without fulfilling the formalities of a First Information Report (FIR). A greater discussion of the difference between the two provisions has been done in the latter part of the article.

Powers of the police under Section 156 CrPC 

As stated above, the police have unrestricted power to carry out an investigation of a cognizable offence under Section 156 of the Code. The police are obliged to submit the report of the investigation before a competent Magistrate under Section 173 of the Code. Moreover, the police also have the power to conduct further investigations under Section 173(8). The Magistrate cannot interfere with the investigation by the police unless the latter carries out an illegitimate exercise of their powers. 

Powers of the Magistrate under Section 156 CrPC 

The provision provides the power to a judicial magistrate to direct the police to conduct an investigation where the police have failed to conduct the investigation properly. Such power has been granted only to a Judicial Magistrate who is eligible to take cognizance of the crime under Section 190 of the CrPC. The Magistrate can order an investigation under Section 156(3) before taking cognizance under Sections 190, 200 and 204. Thus, the power of the Magistrate is only limited to the pre-cognizance stage. However, if the Magistrate examines a complaint filed under Section 200, and directs the police to conduct an investigation, such an investigation could not be considered under Section 156(3) as the Magistrate is said to have taken cognizance of the complaint.

Another scenario where the Magistrate can order the police to conduct an investigation is when the police refuse to conduct an investigation under Section 157 of the Code, which provides for the procedure of investigation. Section 159 of the Code empowers the Magistrate to direct the police to conduct an investigation in such a case. It is pertinent to note that when the Magistrate directs the police to conduct an investigation under Section 156(3), he cannot be said to have taken cognizance of the alleged crime. Moreover, the police have to register the case mandatorily, even if the Magistrate directs otherwise.

When is Section 156(3) activated 

Section 156(3) CrPC provides that a Magistrate can order the police to conduct an investigation of a cognizable offence. The provision itself provides the condition that the Magistrate must be competent to take cognizance under Section 190 of the Code in order to direct the police to conduct such investigation. If the Magistrate is not competent to take cognizance of the case, the order for investigation would be nullified.

It is crucial to understand that not all actions of the Magistrate would be treated as “taking cognizance” under Section 190. If the Magistrate applies his mind to order an investigation under Section 156(3) or issues a search warrant for the purposes of investigation, it would not be treated as taking cognizance under the Code, as has been held by the Hon’ble Supreme Court in the case of Mohd Yousuf v. Smt. Afaq Jahan and Anr (2004).

The Hon’ble Supreme Court in R.R. Chari v. State of U.P. (1951) held that the powers of the Magistrate under Section 156(3) are not limited only to cases falling under Section 190(1)(c) (where cognizance can be taken by the Magistrate only on his own motion or by information by some person), but it can be extended even to cases falling under Section 190(1)(a) (where cognizance can be taken by a complaint moved before the Magistrate). However, these powers do not extend to interfere with the investigation of the police. 

Difference between investigation under Section 156(3) and investigation under Section 202 of the CrPC 

Criminal litigation

More often than not, confusion always persists with regard to the relative scope of Section 156(3) and Section 202 of the Code. Time and again, there have been a plethora of cases where the courts have attempted to clarify the position and also drawn lines to understand the applicability of the respective provisions. 

In 2021, the Hon’ble Supreme Court, in the case of Supreme Bhiwandi Wada Manor v. State of Maharashtra (2021), culled out the difference between the two provisions. It stated that the order passed under Section 156(3) is in the “nature of pre-emptory reminder or intimation to the police to exercise their primary duty and power of investigation” and is not affected by the process under Section 202. The power under Section 156(3) is comparatively wider than that under Section 202. Under the former provision, power can be exercised even prior to taking cognizance. However, as regards the latter provision, power can be exercised only when the Magistrate takes cognizance of the issue. 

A similar view was also given by the Hon’ble Supreme Court in Suresh Chand Jain v. State of Madhya Pradesh (2001). The Court held that Section 156 deals with the power of a police officer to investigate cognizable offences, whereas Section 202 deals with the power of a Magistrate to direct an investigation by a police officer. Section 156 purports that Magistrate can order an investigation even prior to taking cognizance, which is not the case with Section 202. If the Magistrate takes cognizance of the issue as per Section 190, then the process of normal complaint as stipulated is required to be followed.

It is also imperative to refer to the case of Ramdev Food Products v. State of Gujarat (2015) where the Apex Court judiciously stemmed out the differences in the nature of cases dealt with under both provisions. It was held that Section 156(3) requires the application of mind by the Magistrate. It can be exercised when sufficient credible information is available or the interest of justice requires that an investigation is directly ordered. On the other hand, in a case of Section 202, limited material is available on record to proceed further, and the Magistrate is required to decide whether there is even sufficient ground available to proceed further. 

All these cases have been frequently referred by the courts to draw the distinction between the two provisions, which was even recently upheld by a two-judge Bench in the case of Kailash Vijayvargiya v. Rajlakshmi Chaudhuri (2023).

Recent judicial pronouncements 

Ashok Gyanchand Vohra v. State of Maharashtra (2005)

In this case, the facts of the case were such that an organised crime was committed and the intimation of such crime was made by way of a private complaint under Section 9 and Section 23 of the Maharashtra Control of Organized Crime Act, 1991. The issue which pertained before the Hon’ble Bombay High Court was whether the Special Court was empowered under the said Act to order for investigation under Section 156(3) of the Code. Answering in affirmative, the Hon’ble High Court held that for the purposes of the Act, the Special Court will be presumed to have powers of Magistrate, thereby treating it as a court of original jurisdiction for taking cognizance of any matter. 

Laxmi Mukul Gupta @ Lipi v. State of Maharashtra (2018)

In this case, the petitioner filed an application under Section 156(3) of CrPC, seeking the registration of an FIR against the respondent under Section 420, inter alia, of the Indian Penal Code (1860). The Metropolitan Magistrate allowed the application and directed the police to register an FIR. The Hon’ble Bombay High Court, quashing the said order, held that the discretion of the Magistrate under Section 156(3) is very limited. The Magistrate, at the pre-cognizance stage, has to only decide whether the case is a cognizable offence which requires the police to conduct an investigation. The Court further held that a person cannot intervene at a pre-cognizance stage under the provision until the process is issued.

C. Kumaravel v. Director General of Police (2019)

In this case, the petitioners approached the court under Section 482 of CrPC to invoke the inherent jurisdiction of the High Court to direct the respondents to register the petitioner’s case based on the complaint filed by the petitioner. The Hon’ble Madras High Court held that when the police refuses to register an FIR under Section 154 of CrPC, the appropriate remedy ought to be adopted is resorting to Section 156(3). Section 482 cannot be used as an alternative to Section 156.

Based on the precedent set by the Court in its previous cases, the Hon’ble Bench issued the following guidelines:

  • Section 482 of CrPC is a ‘repository’ of inherent power and must not be used as an alternative to Section 156.
  • A person must resort to Section 156(3) after compliance with Section 154, if there is a refusal to register the FIR. There cannot be any alternative remedy unless this remedy is exhausted.
  • A petition under Section 482 must be filed only after the expiration of fifteen days from the date of receipt of information from the Station House Officer.
  • Such substance of information as received from the Station House officer must be communicated to the superintendent of Police, if a decision for preliminary enquiry is made.
  • An affidavit must be attached with the petition clearly providing the date of complaint, receipt of information from police etc. Failure to comply will result in the non-registration of the petition.

Hence, the petitioner must come up with a strong enough reason before the court if it deviates from the compliance of Section 156 and resorts to Section 482 of the Code.

Jaisingh Agrawal v. State of Chhattisgarh (2020)

In this case, the petitioners challenged the validity of an order passed by a Special Court constituted under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, directing the police to register an FIR against them. The primary contention of the petitioners in this case was that the Special Court does not have the powers and jurisdiction to pass such an order under Section 156(3) of CrPC. The Hon’ble Chhattisgarh High Court rejected this contention after relying upon the provisions of Sections 156 and 193 of the CrPC and various provisions of the Atrocities Act. The Court held that the Special Court, having been established under Section 14 of the Atrocities Act by official gazetted notification, has the power and jurisdiction to take cognizance of the offence under the provisions of the Atrocities Act directly without committal proceeding and the Magistrate is not a Special Court notified by the State Government within the meaning of Section 14 of the Atrocities Act read with Section 193 of the Code and therefore, the Magistrate is not empowered to entertain a complaint under the Atrocities Act. Thus, the Special Court has the power and jurisdiction to direct the police to register an FIR and conduct an investigation under Section 156(3).

The Court further stated that for an application made under Section 156(3) of CrPC, there has to be a non-compliance of Sections 154(1) and 154(3) of CrPC. Since this was not the case in the present application, the Court set aside the order passed by the Special Court.

Supreme Bhiwandi Wada Manor v. State of Maharashtra (2021)

In this case, the appellate jurisdiction of the Hon’ble Supreme Court was invoked against an order passed by the Hon’ble Bombay High Court granting anticipatory bail to an accused on the ground that the order of the magistrate to direct registration of FIR under Sec. 156(3) CrPC was given without examining the complainant on oath as under Section 200 CrPC. The Apex Court held that the High Court erred in concluding that the Magistrate has to examine the complaint on oath before directing the police to conduct an investigation. The Court stated that the powers of a Magistrate under Section 156(3) of CrPC are limited only to the pre-cognizance stage of a crime. The Magistrate has to only examine whether the crime is cognizable or not and whether the police ought to have conducted the investigation. If the Magistrate analyzes the facts and circumstances of the crime, it is deemed to have taken cognizance of the crime, and the powers under Section 156(3) are exhausted. The Court set aside the order of the Bombay High Court for the said reasons.

Smt. Rajlakshmi Chaudhuri v. State of West Bengal (2021)

In this case, an offence took place in November 2018, and the petitioner lodged the complaint nearly two years after the incident. However, the petitioner could not provide a satisfactory explanation based on which the delay could be condoned. Accordingly, the Magistrate rejected the application of the petitioner filed under Section 156(3) of CrPC. The contention of the petitioner was that the Hon’ble Supreme Court, in the case of Lalita Kumari, laid down certain guidelines. Nevertheless, these guidelines did not empower the Magistrate to refuse the lodging application because of a lapse of time in filing the complaint. 

Agreeing with the contention of the petitioner, the Hon’ble Calcutta High Court emphasized the consequence of delay in lodging the FIR, which may affect the merits of the case. It stated that if an application under Section 156(3) is received by the court, it has two options. Firstly, the Magistrate direct an investigation by police under its power of Section 156 of the Code, prior to taking cognizance of the case under Section 190 of CrPC. Secondly, alternatively, if the Magistrate deems it fit that cognizance can be taken, then the procedure stated in Section 202 of the Code can be resorted to. However, in any case, an inordinate delay in lodging a complaint cannot be a reason for throwing away the Section 156 application of the petitioner without sending it to the police for investigation or preliminary enquiry.

Anjuri Kumari v. State (NCT of Delhi) (2023)

In this case, the petitioner was allegedly cheated by respondents who took away some money but failed to provide the services in lieu of such money. Resultantly, he lodged a complaint with the Station House Officer, yet no action was taken by them. Thereafter, he moved an application under Section 156(3) before the Metropolitan Magistrate but the same was dismissed. After this, the petitioner filed a revision petition before the Sessions Judge but the Sessions Judge upheld the view of the Metropolitan Magistrate. Consequently, the petitioner approached the Hon’ble Delhi High Court to invoke the inherent jurisdiction under Section 482 of the Code.

The issue before the Court was whether such inherent jurisdiction of the High Court could be invoked even after exhausting the remedy of revisional jurisdiction. The Court opined that such an act was permissible only in the rare circumstances where there was a grave miscarriage of justice or to stop an illegality.

It held that as per Section 156(3), a Magistrate is not bound to direct investigation, after due application of mind, even if all the ingredients of a cognizable offence are satisfied. In the current facts and circumstances, there was no miscarriage of justice as the Magistrate was acting within its powers and the same was upheld by the Court of Sessions.

X v. Y (2023)

In this case, a quashing petition was filed before the Hon’ble High Court of Andhra Pradesh, for quashing an order passed by a Magistrate directing the police to conduct an investigation under Section 156(3). The petitioner was a single trustee of the Archaka temple in Andhra Pradesh, appointed for the management of the temple. Due to the allegations of mismanagement and misappropriation of funds, he was relieved from his duties, and a complaint was filed before the Magistrate. The Magistrate directed the SHO to conduct an investigation and submit the report. Acting upon it, the FIR was registered. In the chargesheet, the petitioner was charged with cheating and dishonestly inducing the delivery of property. The petitioner contended that the registration of FIR under Section 154(1) of CrPC was mandatory before filing the complaint to the Magistrate, and the same was not complied with. Another contention raised by the petitioner was that the Magistrate ought to have included reasons in brief in the order directing the police to conduct an investigation, and since in the present case the Magistrate did not do so, the said order and FIR ought to be quashed. Rejecting the contentions of the petitioner, the Court held that the charge sheet filed by the police contained serious allegations of fraud and misappropriation of funds. A trial was absolutely required in the given circumstances and the FIR cannot thus be quashed.

Moreover, the Court also held that a direction by a Magistrate under Section 156(3) of CrPC does not have to include reasons thereunder. The order is a direction and does not require elaboration. Since the documents are voluminous and would require a thorough examination, and for the aforesaid reasons, the High Court dismissed the quashing petition.

Conclusion 

Section 156 of CrPC provides the police with uninterrupted power to conduct an investigation of a cognizable offence. The provision provides the powers of both the police and the Magistrate to conduct an investigation. The Magistrate has the power to direct the police to conduct an investigation where it deems it necessary, and the police have failed to investigate the offence. It is pertinent to note that the same can be done only in cases of cognizable offences. The Magistrate also has to keep a check on the police with regard to compliance with the procedure established under the law. The powers of the Magistrate are, however, limited to the extent of the pre-cognizance stage, and he cannot direct the police to conduct an investigation after taking cognizance of the offence.

Frequently Asked Questions (FAQs) 

What is the purpose of making an application under Section 156 of CrPC?

An FIR is the first step towards lodging a criminal complaint. An FIR is lodged with the police in accordance with Section 154 CrPC. It is the duty of a police officer to register an FIR if a complaint is made to it. However, when a police officer refuses to lodge an FIR, a victim may resort to Section 156 and make an application to the Magistrate to direct the police regarding the same. 

When can an application under Section 156 be made to the Magistrate?

It is important to know that an application under Section 156 can be made only after exhausting the remedy under Section 154. To simplify, the person must approach the Magistrate only if the Station House Officer refuses to lodge the FIR. Even then, an attempt can be made to bring such information to the knowledge of the Superintendent of Police. If the FIR is still not lodged, the person can resort to Section 156 to move an application before the Magistrate.

What steps are required to be taken by the Magistrate to proceed with an application made before it as per Section 156 CrPC?

If the Magistrate decides to proceed with the application under Section 156 CrPC, it may exercise either of the two options. Firstly, the Magistrate can direct an investigation by the police prior to taking cognizance of the case under Section 190 of CrPC. Secondly and alternatively, if the Magistrate deems it fit that cognizance can be taken, then the procedure stated in Section 202 of the Code can be resorted to.

Can prolonged/inordinate delay be a reason for dismissing an application under Section 156 of the Code?

On various occasions, the Hon’ble Supreme Court and High Courts have held that delay cannot be the sole reason for dismissing the complaint. In various instances, especially those cases which involve offences of rape, assault, or harm to reputation, the victim may take up time to muster courage and lodge the complaint. Many times, the victim may even take months or years to come forward. In such situations, the Magistrate, after due application of mind, must accept the application rather than dismiss it on the mere ground of delay.

Whether Magistrate can interfere or halt an investigation undertaken by police by virtue of its powers under Section 156(3)?

No, in the case of Parkash Singh Badal v. State of Punjab (2006), the Hon’ble Supreme Court held that the provision does not empower the Magistrate to stop an investigation undertaken by the investigating officer. Rather, it is an independent power and cannot stand in conflict with the power of the Government.

What remedy can be availed by a person if an application under Section 156 is dismissed by the Magistrate?

It is within the powers of a Magistrate whether to direct or not an investigation. A Magistrate may not direct an investigation even if all the ingredients of a cognizable offence are fulfilled, if, after application of mind, it so deems fit. Yet, a person aggrieved by such a decision always has the option to file a revision petition before the Court of Sessions. Alternatively, where a person is of the view that dismissal of such an application can cause a miscarriage of justice, the inherent jurisdiction of the High Court under Section 482 CrPC can also be invoked. Nevertheless, such a remedy can be availed only in the rarest of cases.

Is there any difference between Section 156 and Section 202 of CrPC?

Section 156 entails wider powers to the Magistrate in comparison with Section 202 of the Code. The former can be invoked at both the pre-cognizance stage as well as the post-cognizance stage and is not affected by the process under Section 202. However, the latter i.e. Section 202 can be invoked only after the cognizance of offence has been taken by the Magistrate.

References 

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