Scope of Section 156(3) CrPC Curtailed – Analyzing the Order of J&K High Court

An order passed by Judicial Magistrate under Section 156(3) of CrPC[i] directing investigation was set aside by the J&K High Court yesterday on the ground that Section 156(3) of CrPC can’t be used at Post-Cognizance Stage. The High Court went further to such an extent that it directed the State Judicial Academy to conduct training sessions for the magistrates throughout the Union Territory.[ii] So in the present post I will be analysing the legality of High Court’s order in the light of recent pronouncements by Supreme Court.

Brief Facts of the Case

After an order of directing investigation was passed by the JMFC, a petition was filed under Section 482 of CrPC[iii] asking High Court to quash the order of Magistrate. The facts which led to filing of petition before High Court are:

Petitioner while performing his duties as Naib Tehsildar, Executive Magistrate, Khanyar, came to know about filing of the compliant by respondent against him as well as other accused persons. The said complaint stated to be filed for commission of offences under Section 166, 166-A, and 167, 354, 201, 209 and 120-B IPC. The said compliant was assigned to the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), by the learned CJM, Srinagar. In the said complaint, petitioner prayed for registration of FIR or in the alternative cognizance of offences mentioned in the complaint. Upon presentation of the complaint the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), passed the following order:

“After going through the averments made in the application, I deem it proper to get the matter investigated before issuing any process in the matter against the accused person. Since the applicant has put allegations against Tehsildar and Naib Tehsildar also, therefore, the investigation shall be conducted in the instant matter by the SSP Srinagar. Accordingly, the SSP Srinagar is directed to investigate the matter either by himself or through any police officer not below the rank SDPO in the earnest and submit his report before the undersigned.”

In the present case on the basis of order of Magistrate it is not clear whether she has taken cognizance and then directed Police to conduct investigation as the words used in the order “I deem it proper to get the matter investigated before issuing any process in the matter against the accused person shows. Being unsatisfied with the enquiry report of Police she directed Investigation under Section 156(3) of CrPC. This order of Investigation was set aside by the High Court on the ground that Investigation at post cognizance stage can’t be ordered under Section 156(3) of CrPC. So this present article will be dealing with two issues:

  1. Whether High Court in the present case was right to hold that the cognizance had been taken on complaint when orders for investigation was passed by Magistrate.
  2. Whether Section 156(3) of CrPC can be used at Post Cognizance Stage.

What is taking of Cognizance?

The curial act of “taking cognizance of an offence” has baffled the Bench and the Bar alike mainly due to the fact that the Code of Criminal Procedure, 1973 has not chosen to define the said expression.

I have come across expressions such as “the Magistrate applies his mind to the suspected commission of the offence”[iv], “the Magistrate taking notice of the accusations and applying his mind to the allegations”[v], “the Magistrate judicially applying his mind to the facts with a view to taking further action”[vi], the Magistrate becoming aware of the offence” or “Magistrate taking judicial notice of an offence”[vii], or “the Magistrate taking notice of the complaint or the FIR or the information that an offence has been committed”[viii]; the Magistrate recording the sworn statement of the complainant and the witnesses” or “the Magistrate issuing process to the accused” and so on and so forth.

Regardless of the question as to whether the offence is “cognizable” or “non-cognizable”, the process of “taking cognizance of the offence” by the Magistrate is a must for both cognizable and non-cognizable offences, if the Court were to proceed further either on a “complaint” or on a “police report”. There is a popular misconception that a Magistrate cannot take cognizance of a “non-cognizable offence”.

When Cognizance is said to be taken on Complaint

Wherever I have used the word complaint or private complaint it refers to Complaint as defined under Section 2(d) of CrPC:

“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report”.

Chapter XV CrPC starting with Section 200 onwards deals with the procedure for taking cognizance of an offence on a “private complaint”. When on receiving a complaint, the Magistrate applies her mind for the purpose of proceeding under Chapter XV CrPC, she can legitimately be said to have taken cognizance of the offence within the meaning of Section 190 (1)(a) CrPC. If instead of proceeding under Chapter XV, the Magistrate, in exercise of her discretion, has taken action of some other kind such as issuing a search warrant under Section 91 CrPC or ordering investigation by the Police under Section 156(3) CrPC, she cannot be said to have taken cognizance of any offence.[ix]

So if we look at the order of Magistrate it is difficult to say that she had taken cognizance because whenever a complaint is filed before Magistrate she has two options, either she can take cognizance on the basis of facts stated out in the complaint under Section 190(1)(a)[x] if she is satisfied that prima facie offences are being made out and thereafter have to conduct examination of complainant and his witnesses under Section 200 CrPC[xi] (which is of mandatory nature if cognizance is taken on the basis of complaint) or if she is not satisfied with the allegations made out in the complaint but thinks that investigation need to be done then she can direct Police under Section 156(3) of CrPC to conduct investigation. When the case is arising out of the complaint the magistrate has one more option of directing investigation under Section 202 CrPC[xii] (Postponement of Process for the purpose of Inquiry by Magistrate or Investigation by Police). But such stage only arises when cognizance is taken and examination is done under Section 200.

Section 200 provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. The object of such examination is to ascertain whether there is prima facie case against the accused. The provision is mandatory and not discretionary. The magistrate must examine the complainant even though the facts are fully set out in the complaint.[xiii] It is only when she proceeds to examine the complainant and his witnesses the cognizance is said to be taken. Once examination is done by the magistrate she can proceed to Section 202 (Postponement of Process to order Investigation at Post Cognizance Stage).

In the present case there is no mention of examination and on the basis of Magistrate’s order it doesn’t appear that she intended to proceed under Chapter-XV of CrPC. So it is difficult to say that cognizance was ever taken. Magistrate after looking into the complaint ordered investigation. Since there was no cognizance so no question of Post Cognizance and application of Section 202. The investigation in effect in the very first instance was ordered under Section 156(3) although there is no mention of the same in the magistrate’s order.

Scope of Section 156(3) of CrPC

Now coming to the second issue. A similar question arose before the Apex Court in Vinubhai Haribhai Malaviya vs. State of Gujarat[xiv]:

whether after filing of charge sheet by the investigation agency, the Magistrate has power to order further investigation, and if so, up to what stage of a criminal proceeding can such further investigation be allowed‘.

Supreme Court held that Magistrate has the power to order further investigation under section 156(3) CrPC read with Section 173(8) CrPC[xv] till the charges are framed and thereafter it has put a full stop to the investigation after framing of charges.

In Minu Kumari v. State of Bihar[xvi] it was stated that the Magistrate has the power to direct further investigation after filing of the final charge sheet, however, the Magistrate can even exercise such power with the help of section 156(3) CrPC.

Even in an old judgement of Randhir Singh Rana v. State[xvii] the Hon’ble Supreme court gave powers to Magistrate to order Investigation post cognizance but not after appearance of accused.

The Second Order of Investigation by Magistrate could have been read by High Court as one passed under Section 173(8) CrPC

Even for a second if we accept the fact that Magistrate had taken cognizance and she ordered investigation once, still her second order to investigate will be valid in view of the following pronouncements and statutory provisions:

An important judgment, which dealt with the powers of a Magistrate post cognizance stage, was Vinay Tyagi v. Irshad Ali and Ors[xviii]. The said judgment stated that a Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(8) of the Code. Further the court stated

“Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8)”.

The Code is a procedural document, thus, it must receive a construction, which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.

So it is very clear from the judgements that investigation under Section 156(3) CrPC can be ordered at post cognizance stage also till the charges are framed. Moreover Magistrate in the present case would still be right if she ordered in effect further investigation after filing of closure report by Police. With the passing of Vinubhai Haribhai Malaviya vs. State of Gujarat and reading the same with Vinay Tyagi v. Irshad Ali and Ors, the Investigation agency cannot without the leave of the court file a supplementary report (report after further investigation) but at the same time the magistrate can only do so until the trial starts thereby putting chains to the investigating agency. With Vinubhai Haribhai Malaviya’s case now further investigation cannot be at the instance or convenience of the investigation agencies at the post cognizance stage. If any investigation has to be conducted then the court has to be cognizant of the same and it has to be only with the leave of the court that such an investigation has to be conducted.

Conclusion

It can be concluded that High Court committed error by setting aside order of Magistrate which was in conformity with the law. Moreover High Court also committed illegality by ignoring the recent pronouncements of the apex court in relation to the scope of Section 156(3) CrPC. Now it would be interesting to see whether the affected party will apply for revision or will High Court Suo Motu revises its order.

Note: The present post is written in good faith without any intention to demean or criticize the Order of Hon’ble J&K High Court. The views expressed are author’s personal opinion and not in any manner represents the views of publisher.

[i] https://indiankanoon.org/doc/1291024/

[ii] CRM(M) No.113/2020, Crlm No. 316/2020, Sami-ullah Naqashbandi vs Sadaf Niyaz Shah.

[iii] https://indiankanoon.org/doc/1679850/

[iv] (2004) 4 SCC 432; (2004) 11 SCC 622.

[v] (1993) 2 SCC 16.

[vi] (1977) 4 SCC 459.

[vii] (1995) 1 SCC 684; (2011) 3 SCC 496; (2012) 2 SCC 188.

[viii] (2012) 10 SCC 517.

[ix] R.R.Chari vs The State of U.P, AIR 1951 SC 207; Supdt. & Remembrancer of Legal Affairs, W.B. vs Alani Kumar, AIR 1950 Calcutta 437; Narayandas Bhagwandas vs State of West Bengal, AIR 1959 SC 1118.

[x] https://indiankanoon.org/doc/686759/

[xi] https://indiankanoon.org/doc/444619/

[xii] https://indiankanoon.org/doc/1149595/

[xiii] Fani Bhushan Banerjee vs Kemp (1906) 10 CWN 1086.

[xiv] CRIMINAL APPEAL NOS.478-479 OF 2017

[xv] https://indiankanoon.org/doc/1412034/

[xvi] (2006) 4 SCC 359.

[xvii] (Delhi Admn.) , (1997) 1 SCC 361.

[xviii] (2013) 5 SCC 762.


ABOUT THE AUTHOR

Harshit Sharma

Harshit

Harshit Sharma has done his B.A., LL.B (Criminal Law Hons.), from National Law University, Jodhpur (2019) and he completed his Masters in Criminal Law in July 2020. He secured AIR-15 in CLAT PG (2019) and he has Qualified NTA NET (December 2019). Currently, he is preparing for his Delhi Judicial Services 2019 Interview and simultaneously working for his PhD enrolment. He can be reached at harshitsharmanluj@gmail.com.

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