By Y.Srinivasa Rao, Principal Asst.Sessions Judge, Tirupati.
Introduction:— Investigation into commission of a crime can be commenced by two different modes: first, where the police officer registers an FIR in relation to commission of a cognizable offence and commences investigation in terms of Chapter XII of the Code; the other is when a Magistrate competent to take cognizance in terms of Section 190 may order an investigation into commission of a crime as per the provisions of that Chapter XIV. Section 156 primarily deals with the powers of a police officer to investigate a cognizable case. While dealing with the application or passing an order under Section 156(3), the Magistrate does not take cognizance of an offence. When the Magistrate had applied his mind only for ordering an investigation under Section 156(3) of the Code or issued a warrant for the said purpose, he is not said to have taken cognizance. It is an order in the nature of a pre-emptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the Code. Such an investigation embraces the continuity of the process which begins with collection of evidence under Section 156 and ends with the final report either under Section 159 or submission of charge-sheet under Section 173 of the Code. (Refer to Mona Panwar v. High Court of Judicature of Allahabad [(2011) 3 SCC 496 : (2011) 1 SCC (Cri) 1181]. In Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330 : (2007) 9 SCR 695] , this Court as well stated the principle that investigation beginning in furtherance of an order under Section 156(3) is not anyway different from the kind of investigation commenced in terms of Section 156(1). They both terminate with filing of a report under Section 173 of the Code. The Court signified the point that when a Magistrate orders investigation under Chapter XII he does so before taking cognizance of an offence. The Court in para 18 of the judgment held as under:
The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in-charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
A three-Judge Bench in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel [(2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218].
Hon’ble Supreme Court has futher observed as follows:-
19. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) CrPC, as if, it is a routine procedure. That apart, the proceedings initiated and the action taken by the authorities under the Sarfaesi Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken, it needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation. It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one-time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bona fides. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made.
20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3)CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision:
“156.Police officer’s power to investigate cognizable case.–(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.”
21.Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252 : 1976 SCC (Cri) 380] , had to express thus: (SCC p. 258, para 17) “17. … It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173.”
22. In Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] , the two-Judge Bench had to say this: (SCC p. 711, para 11) “11. The scope of Section 156(3)CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.”
23. In Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330] , this Court ruled thus: (SCC p. 647, para 18) “18. …”11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.’
24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. [(2005) 7 SCC 467 : 2005 SCC (Cri) 1697] , the Court while dealing with the power of the Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. And again: (Madhao v. State of Maharashtra [Madhao v. State of Maharashtra, (2013) 5 SCC 615 : (2013) 4 SCC (Cri) 141] , SCC pp. 620-21, para 18) “18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3).”
25. Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat [(2015) 6 SCC 439] , while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that: (SCC p. 456, para 22)”
22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine ”existence of sufficient ground to proceed’.”
Although it may not be strictly necessary for a complainant to approach the police before filing an application under Section 156(3) Cr. P.C. (see para 7 of the Constitution Bench decision of the Supreme Court reported in (1984) 2 SCC 500 : AIR 1984 SC 718, A.R. Antulay v. R.S. Nayak), but as a matter of convenience and expedition, normally every genuine complainant first attempts to lodge an FIR at the police station. Thus most applications invoking Section 156(3) contain the averment that the police have (wrongly) refused to register the FIR of the cognizable offence. Section 154(1) makes it obligatory for officers in charge of police stations to register FIRs of cognizable offences. If the officer in charge of police station refused to do so the complainant has the remedy under Section 154(3)Cr. P.C. to send the substance of the FIR to the Superintendent of Police by post who has the power to investigate the offence himself or depute a subordinate officer to investigate. Experience shows that very few complainants avail of this right under Section 154(3) Cr. P.C. apparently due to lack of knowledge.
GUIDE TO DISCRETION OF MAGISTRATE
In these circumstances, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156(3) to register and investigate an alleged cognizable offence, why should he (A) grant the relief of registration of a case and its investigation by the police under Section 156(3) Cr. P.C. and when should he (B) treat the application as a complaint and follow the procedure of Chapter XV of Cr. P.C.
The scheme of Cr. P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some “investigation” is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example (1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.
But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no “investigation” would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr. P.C. order investigation, even thought of a limited nature (see para 7 of JT (2001) 2 (SC) 81 : ((2001) 2 SCC 628 : AIR 2001 SC 571) In the case of Chandrika Singh v. State of U.P., reported as 2007 SCC OnLine All 1022, the Allahabad High Court has held as under-
In view of this observations of Hon’ble Apex Court on receipt of an application u/S. 156(3) Cr.P.C. the Magistrate may pass an order out right for taking cognizance in the offencc and then proceed in view of the procedure laid down in Chapter XV Cr.P.C. But if the Magistrate is not intending to take cognizance of the offence then he may pass an order for register and investigation of the offence by the police. On receipt of an application u/S. 156(3) Cr.P.C. both the options are open to the Magistrate and if the Magistrate in its discretion adopted any of the course then it cannot be said that the Magistrate has illegally applied his discretion.
In Vinay Pandey v. State of U.P. Reported in U.P. Cr.R. Page 670 (sic) the same law has been followed and it has also been held that in an application u/S. 156(3) Cr.P.C. it is not mandatory for the Magistrate to allow every application, Learned Counsel for the revisionist also cited, (1980) 4 SCC 631 : AIR 1980 SC Page 1883 H.S. Bains v. State. It has been held by Hon’ble the Apex Court that “Criminal P.C. (2 of 1974), Ss. 156(3), 173(1), 190(1)(b), 200, 203 and 204 — Complaint case — Magistrate directing investigation u/S. 156(3) — Police Report stating that no case was made out — Still Magistrate can take cognizance and issue process.” This judgment also does not lay down that in application u/S. 156(3) Cr.P.C. the Magistrate is bound to pass an order for register the case and investigation. In this case the police after investigation submitted a report to the effect that no case is made out. Hon’ble Apex Court held that in such circumstances also the Magistrate can take cognizance and issue process as provided under Chapter XV Cr.P.C.
It will also be material to decide that whether an application u/S. 156(3) Cr.P.C. can be treated as a complaint for the purpose of a procedure as provided under Chapter XV or the revisionist is at liberty to allege that if an application u/S. 156(3) is moved then the Magistrate must pass an order for registration of the case and investigation when a cognizable offence is made out and specially when no prayer has been made in the application u/S. 156(3) Cr.P.C. to treat the application as a complaint and it has not been filed in the format of the complaint then the application u/S. 156(3) Cr.P.C. cannot be treated as complaint. I disagree with this position. As has been stated above that an application u/S. 156(3) Cr.P.C. can be treated as a complaint as has been held by Hon’ble Apex Court in Mohd. Yousuf v. Afaq Jahan, (2006 (2) ALJ 8). But in this context another Full Bench decision of this Court is also relevant. The Pull Bench of this court in Ram Babu Gupta v. State of U.P. reported in U.P. Cr.R. at Page 600 (sic): (2001 All LJ 1587) has laid down “Criminal Procedure Code, 1973 — sections 156(3), 156(2), 156(1), 190 and 202 — Powers of Court — The Magistrate may direct the police to register a case and investigate — Or he may treat the same as a complaint and proceed in matter contemplated in Chapter XV of Code — He should apply his judicial mind — Law discussed — Magistrate if takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Code — Magistrate may either take cognizance under section 190 or may forward the complaint to police under section 156(3) for investigation.”
This controversy must come to an end that an application u/S. 156(3) Cr.P.C. can only be treated as an application for passing an order for registration of the case and investigation and cannot be treated as complaint case. The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out. The Magistrate is fully competent to use his judicial discretion in the matter. This is wrong notion that if an application has been moved u/S. 156(3) Cr.P.C. that the only order can be passed for registration in the matter. The Magistrate has got discretion u/S. 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report u/S. 173 Cr.P.C. The Magistrate is also expected to act under some guidelines and it should not be let at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation u/S. 156(3) Cr.P.C. Gulab Chand Upadhyaya v. State of U.P., (2002 All LJ 1225) Hon’ble Single Judge of this court laid down the guidelines for the guidance of Magistrate while deciding the application moved u/S. 156(3) Cr.P.C. and these guidelines cannot be said against any provision of law or check on the judicial discretion of the Magistrate Even Hon’ble Apex Court also held that the Magistrate has got a discretion to pass an order to register the case and investigation u/S. 156(3) Cr.P.C. Or to treat an application as a complaint case.
In the case of Sukhwasi v. State of Uttar Pradesh, reported as 2007 SCC OnLine All 1088, the Allahabad High Court has held as under-
1- The following question, has been referred, for consideration;”Whether the Magistrate is bound to pass an order on each and every application under Section 156(3)Cr.P.C. containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as ”complaint’ or to reject it in suitable cases”?
In the case of ”Ram Babu Gupta’ (2001 (43) ACC 201) : (2001 All LJ 1587), it was held by the Full Bench of this Court that the Magistrate is supposed to exercise its discretion while acting on an application under Section 156(3) Cr. P.C, and he is not supposed to pass an order in a routine manner, and he has to apply his mind. This naturally means that the Magistrate has an option of refusing for registration of the first information report. This will appear from the following observations made in para-17 of ”supra’ Full Bench judgment;
“In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate’s order must indicate application ……..of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter-XV of Cr.P.C. The first question stands answered thus.”
It will further become clear from the following observations made in para-40 of the judgment:
“While resorting to the first mode in as much as directing the police for investigation he should not pass order in a routine manner. He should apply his judicial mind and on a glimpse of the complaint, if he is prima facie of the view that allegations made therein constituted commission of a cognizable offence requiring thorough investigation, he may direct the police to perform their statutory duties as envisaged in law.”
That Is the Magistrate still bound to order registration of a First Information Report because the application discloses a cognizable offence? It is obvious that the answer has to be in negative and it cannot, therefore, be said that the Magistrate is bound to order registration of a First Information Report in all cases, where a cognizable offence is disclosed.
The next point, which remains for consideration is, the question whether the Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint?
It is clear from the judgment of the Supreme Court in the case Suresh Chandra Jain v. State of Madhya Pradesh, 2001 (42) ACC 459 : ((2001) 2 SCC 628 : AIR 2001 SC 571), that a Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. This will become clear from the reference in the said report to the case of Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986, in which the following observations were made: (Para 7) “If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ”may’ in Section 190 to mean ”must’. The reason is obvious. A complaint disclosing cognizable offences may well justify a police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and ”Take’ cognizance of a cognizable offence.”
It becomes clear from the said underlined portion that the Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. Hon’ble Mr. Justice Vinod Prasad has also referred to the case of Suresh Chand Jain ((2001) 2 SCC 628 : AIR 2001 SC 571), ”supra’ and has extracted the following portion therefrom in order to take a different view: (para 7):–
Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a police officer”. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code.”
It has been further held by the Apex Court in the same judgment. “But the significant point to be noticed is when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance.”
Scope of Section 156 sub-sec. (3). Cr.P.C. 1. Prior to the Supreme Court decision in Chari’s case, there was a controversy as to whether the power to direct investigation under s. 156 (3) was confined to a case under s. 190 (1) (c) i.e., upon his own knowledge or information, but also extended to a case under s. 190 (1) (a), i.e. when he was move by a complaint. This latter view seems to have been approved by the Supreme Court in Chari’s case. In the result, as soon as a petition of compliant is filed, the Magistrate is not bound to take cognizance of the offence but that he may take “action of some other kind, e.g. , ordering investigation under s. 156(3), or issuing a search warrant for the purpose of investigation.”
The courses open to the Magistrate on receipt of a complaint have been elaborated in a later case of the Supreme Court: Gopal Das Vs. State of Assam AIR 1961 SC 986 and Laxmi Narayan Vs. Narayana (1976) Cri.L.J. 1361 SC S. 190 (1) (a) does not mean that once a complaint is field, the Magistrate is bound to take cognizance if the fact stated in the complaint discloses the commission of an offence. The word ‘may’ cannot be construed as ‘must’. A complaint disclosing a cognizable offence may well justify a Magistrate in sending the complaint, under s. 156 (3), to the Police for investigation. There is no reason why the time of the Magistrate should be wasted when the duty to investigate in cases involving cognizable offences if primarily with the police.
On the other hand, there may be occasions when the magistrate may exercise his discretion and take cognizance of a cognizable offence, on receipt of a complaint, without police investigation. But if he does so, then he would have to proceed in the manner provided by Chap XVI of the Code.
The character of the subsequent proceedings would depend upon the question whether the magistrate has ordered investigation by the police (s. 202], after examining the complainant on oath under s. 200, or without examining the complaint. There was much confusion on this point, which was removed by the Supreme Court decision in Jamuna Singh’s case, according to which-
(a) Whether the Magistrate has taken cognizance of an offence would depend upon the puspose for which he was applied his mind and the step taken by him in pursuance thereof.
(b) When a Magistrate applies his mind for the purpose of applying Chap. XVI, he must be held to have taken cognizance of the offence, e.g. when he examines the compliant on oath because the examination of the complainant contemplated by s. 200 is by a Magistrate taking congnizance of an offence on complaint. Hence, where the Magistrate, after examining the complainant, directs investigation by the Police, the report submitted by the Police on such investigation will fall under ss. 202-203, post. When cognizance had been taken by examining the compliant, there was no scope for cognizance being taken afresh of the same offence, after the receipt of the Police Officer’s report. Therefore, the subsequent report by the Police officer, even though it purported to be a charge-sheet, should be treated as merely a consequence of the step the Magistrate has taken under s. 202, and not as a ‘Police report’ under ss. 156 (3), 190 (1) (b).
(c) But if the Magistrate directs Police investigation, without taking cognizance upon examining the complainant on oath, the report submitted by the Police consequent upon such investigation will fall within s. 156 (3), so as to have the effect of a ‘police report’ for purposes of s. 190 (1) (b).
Steps which a Magistrate may take after receipt of report of Police investigation, under s. 156.
1. A distinction must be made as between (a) the case where a Magistrate orders investigation by the Police, after taking cognizance upon a complaint, under s. 202 (1), and (b) the case where the Magistrate orders police investigation before taking cognizance upon a complaint, under s. 156 (3).
2. It is this latter contingency which is being dealt with in the present context, namely, where on receipt of complaint, the Magistrate orders Police investigation, without taking cognizance of the offence, upon the complaint. In such a case, the Police after making investigation, will submit a report under s. 173 (1), post. Upon receipt of such Police report, the Magistrate has several courses open to him:
(a) He may straightaway issue process against the accused, disagreeing with the police report to the effect that there is no sufficient ground for proceeding further. Even though he disagree with the Police report, in this case, he would be taking cognizance under s. 190(1)(b), and then issue process.
(c) He may agree with the Police report that there is no sufficient ground for proceeding further and drop the proceeding.
In the case of Lalita Kumari Vs. Govt. of U.P. & Ors (decided on 12 November, 2013) [2014(2) SCC 1] The Constitutional Bench of Hon’ble Supreme Court has held as above and guidelines have been given to the police officer regarding recording F.I.R. at the police station.
Hon’ble Supreme Court in the case of H.S. Bains, Director, Small Saving-cum-Dy. Secy. Finance v. State (Union Territory of Chandigarh), (1980) 4 SCC 631 : 1981 SCC (Cri) 93 at page 634 in paras 6 and 8 has observed as follows:
6. It is seen from the provisions to which we have referred in the preceding paras that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 of the Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process, as the case may be.
As was held in Ram Khelawan vs State Of U.P. & 6 Ors. Dated. 8 January, 2021it is well settled proposition of law that the concerned Magistrate has on institution of written complaint regarding commission of cognizable offence has the following two options:-
(i) At the pre-cognizance stage- he may direct to concerned police station to register F.I.R. on the basis of facts narrated in the complaint if commission of congnizable offence disclosed prima facie and Investigating officer would conduct the investigation. Thus the Magistrate exercises a very limited power under section 156(3) Cr.P.C. and so is it’s discretion. It does not travel into the arena of merit of the case, if such case was fit to proceed further.
(ii) At the post cognizance- after taking cognizance, he may adopt procedure of complaint cases provided under Section 200 and 202 Cr.P.C. If the Magistrate is not satisfied with the conclusions arrived at by the Investigating Officer in report submitted under section 173 Cr.P.C. then the Magistrate may take cognizance upon original complaint sent to S.H.O. at pre-cognizance stage and proceed further to examine the complaint under section 200 Cr.P.C. and his witnesses under section 202 Cr.P.C.
Rejection of complaint at the pre-cognizance stage under section 156(3) Cr.P.C. does not debar institution of second regular complaint. It would be post-cognizance stage, if the Magistrate takes cognizance on the original complaint or after rejection at pre-cognizance stage, if second complaint is filed by the complainant. In genuine cases, if averments of the complainant are true and trustworthy or these are found so after preliminary inquiry, then the Magistrate under section 156(3) Cr.P.C. may direct the S.H.O. to register F.I.R. and conduct investigation on the basis of averments of the complaint.
The Magistrate may dismiss the complaint under section 156(3) Cr.P.C. if by way of instituting complaint, defence version is created to absolve the complainant from the case registered earlier or on the basis of allegations made in the complainant, if dispute is purely of civil nature or the Magistrate considers that the complaint is false and frivolous. The Magistrate has to power to test the truth and veracity of the allegations levelled against the proposed accused persons and if there is no substance in the averments of the complainant then at pre-cognizance stage, the complaint may be dismissed under section 156(3) Cr.P.C.
Likewise, in the facts and circumstances of a particular case, Magistrate may take cognizance on the basis of the complaint instituted before him and may adopt the procedure provided under sections 200, 202 of Cr.P.C. and if there is no substance in the prima-facie evidence adduced by the complainant, the complaint may be dismissed under section 203 Cr.P.C.