Introduction

Criminal procedural law, in general, kick starts with the registration of a First Information Report (FIR) by the complainant, with the police having jurisdiction over the place of the offence. As opposed to the civil procedure wherein there is no involvement of this institution of police, in criminal law jurisprudence, they do not just have one of the roles in this criminal procedure but also, therefore, form the starting point in the entire criminal procedure with the registration of FIR, extending further to the most vital aspect in this procedure, viz., the Investigation stage. Therefore, registration of FIR and conducting the wholesome process of investigation, which includes inter-alia, and the adducing of evidence to support the prosecution case, are the twin purposes of police in the entire criminal law domain.

The Code of Criminal Procedure 1973 deals in great detail with the entire procedural law, wrt criminal cases, in which Chapter XII is dedicated to the stage of investigation and the rules governing it, including the registration of FIR. To again reiterate, registration of a complaint or any other information regarding the commission of an offence, given to the police officer in charge of the police station, forms the basis for initiation of the other procedural requirements under CrPC. In cases of cognizable offences, in which police have the power to carry on an investigation without any order from the Magistrate, the complaint must be reduced to writing into a formal document known as the First Information Report (FIR). Even in non-cognizable offences cases, information must be entered in a station diary or any other written format. Sections 154 and 155 of CrPC, respectively, deal with both these cases. Coupled with these statutory provisions, the honourable Supreme Court, in the landmark case of Lalita Kumari v. Government of UP, reiterated that police officers must and should register FIR upon receiving information regarding the commission of a cognizable offence¹. At the same time, CrPC does not leave the informant of the complaint remediless where police refuse to register the FIR to take the complaint. Section 154(3) authorizes the aggrieved informant to directly send the information to the Superintendent of Police concerned, who may then direct his subordinates to investigate or carry the same himself. In a more extreme circumstance wherein the complaint is still not acknowledged by either the SHO or the SP, a final remedy is conferred u/s 156(3) CrPC to directly approach the Judicial Magistrate empowered to take cognizance of the offence stated, u/s 190 CrPC, pleading for ordering an investigation.

Guidelines for exercising power to order u/s 156(3)

The investigation is that stage of the criminal procedure that exclusively involves how police officers must adduce the evidence and build up the prosecution case. This investigation function is therefore considered the most crucial duty of the police, apart from the general duties of maintaining law and order. This is why the honourable courts have reiterated over and again that investigation, especially in cognizable offences, is exclusively reserved for the investigating agency (viz., generally the police), whose powers are unfettered so long as the investigating officer exercises his investigating powers within the provisions of the law and the legal bounds². And also, the Judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry³, observing further that the field of investigation is exclusively reserved for the executive through the police dept⁴. With this set of guidelines running opposite to 156(3) on the face of it, since the Magistrate here is ordering police to investigate, courts have evolved further guidelines to maintain a balanced approach, conferring additional duties upon the courts.

Duties of the Magistrate before ordering u/s 156(3)

To primarily begin on the aspect in which circumstances and facts that the Magistrate can exercise powers under this section, the courts have dealt in great detail, on a circumstantial level, so that the courts do not use this power in an unfettered manner. In the landmark case of Priyanka Srivastava v. State of UP, the honourable Supreme Court has emphasized the need for exercising due diligence and vigilance while passing an order directing investigation u/s 156(3). The apex court held that no direction should be issued by the magistrate u/s 156(3) without the application of judicial mind, as opposed to a routine passage of directions⁵. The Magistrate needs to be vigilant with respect to the nature of allegations to identify whether the petition was motivated and had been maliciously instituted with an ulterior motive⁶. In the absence of such due diligence, the order is liable to be quashed u/s 482 CrPC⁷. A further duty is conferred on the Magistrate to seek an affidavit from the complainant, on oath compulsorily, to verify the truth and also verify the veracity of the allegations to avoid the harassment faced by the opposite party⁸ and to ensure fair investigation⁹.

When can the power u/s 156(3) be exercised?

As discussed in the introduction to this article, it is primarily the officer in charge of the police station (SHO) who registers the FIR u/s 154(1). Upon SHO denying to take the complaint is when the second remedy to approach the Superintendent of Police (SP) chips in, u/s 154(3). It is the final remedy under this pertinent section 156(3) that the complainant can approach the Magistrate. This reading of the sections clearly, but not explicitly, shows a hierarchy of the complainant’s rights. To remove this tussle, the honourable Supreme Court in Sakiri Vasu vs. State of UP clearly lays down this implied hierarchy within CrPC, in which a complainant can exercise his power to register an FIR. The apex court further explains that even after seeking remedy u/s 156(3), one cannot directly approach the High Court u/s 482 but has another hierarchical remedy to file a criminal complaint u/s 200 CrPC¹⁰. Therefore, in a couple of recent cases before the high courts, observations were made stating that if magistrates start accepting petitions u/s 156(3) directly, without following the hierarchy mentioned implicitly under CrPC, High courts would be flooded and will not be able to do other work¹¹.

Restrictions on Magistrate’s power

With the increasing misuse of the powers conferred u/s 156(3) by complaints, the courts have placed well-structured restrictions on the magistrates, over and above the already-mentioned guidelines, above. On the most fundamental level, the territorial jurisdiction limitation on the Magistrate continues, as is the case with other general provisions under CrPC. Furthermore, this magisterial power cannot be stretched beyond directing an SHO to conduct the investigation, including ordering any superior officer¹², or any other investigative agency such as the CBI/CID¹³. Apart from this, more straightforwardly, the Gujarat High, in order to curtail the growing trend of directly approaching magistrates u/s 156(3), opined that magistrates should focus on one fundamental aspect, i.e., allowing the application only in cases where the assistance of the police is essential that the complainant on his own may not be in a position to collect and produce the evidence in support of the accusations¹⁴.

Tussle between taking cognizance u/s 200, and order passed u/s 156(3)

Section 190(1) of CrPC deals with the fundamental yet crucial concept of taking cognizance of an offence by a Magistrate, which forms the first step in initiating criminal proceedings before the supervision of the court of law. The Magistrate must apply his judicial mind and decide whether there is a prima facie case that can be made out with the complaint, either when a police officer submits a preliminary report u/s 157 CrPC to take cognizance or when an aggrieved party directly files a private complaint before the Magistrate, or when the court itself takes the cognizance Suo-moto. The second category of taking cognizance is essential at this moment, i.e., through a private complaint made with the Magistrate by the victim. Even upon taking cognizance u/s 190(1), a magistrate can order police to investigate further through the concept of postponement of issuance of process u/s 202(1) CrPC. Such an investigation, however, is of a limited nature, aiming only to help the Magistrate decide whether there is sufficient ground for him to proceed further. This concept of private complaint and petition filed u/s 156(3) CrPC, therefore, resembles and tends to overlap. This is especially so because, as per the judicial precedents discussed above, wherein the courts have obliged magistrates to apply their judicial minds and to take affidavits from the complaint before passing an order u/s 156(3), all of which is statutorily made mandatory for taking cognizance u/s 190. To settle this difference between the two provisions, the honourable Supreme Court in Srinivas Gundluri v. Sepco Electric Power Construction Corporation clarified that u/s 156(3), Magistrate applies his judicial mind to deciding whether or not there is sufficient ground for proceeding, which is actually required u/s 202, but whether or not to direct the police for investigation. Only upon investigation and submission of the final report does the Magistrate decides to cognizance or not¹⁵.

Is a revision to order u/s 156(3) maintainable

Every conclusion arrived at by a magistrate during the hearing of a matter is called general as a court order which becomes legally binding on the parties against whom it was issued or decided. This order follows so much rigour that any non-compliance with the said order attracts the contempt of court provision, punishable u/s 12 of the Contempt of Court Act, 1971 and u/s 166A of IPC (public servant disobeying direction under law). With this in place, the only remedy for the party against whom an order has been passed is to file a revision petition before a higher court u/s 397 CrPC. While Sessions and Additional Sessions Judges exercise revision powers u/s 399 and 400, High Court exercises this power u/s 401 CrPC. With the inclusion of these sections, it might sound to a reader that it is pretty straightforward to deal with the revision of an order u/s 156(3), like any other order passed by a criminal court in general. However, an order under 156(3) is largely different from other orders due to the stage at which it is issued and based on the nature of the order in the criminal procedural law. An order directing the police to investigate u/s 156(3), as mentioned in the preceding section of this article, is only issued at the pre-cognizance stage¹⁶, thereby not examining the case on the merits of the claim. Therefore, the machinery provided under Chapter XV of CrPC, which includes the issuance or postponement of the issuance of process, is not set into motion by the Magistrate. In such a circumstance, no order of the Magistrate can be revised u/s 397 r/w Section 401 CrPC. What is therefore revisable is only the correctness and legality of any finding, sentence, or order, recorded or passed¹⁷. On similar lines, the Allahabad High Court held that in this pre-cognizance stage, neither the complainant nor the accused are brought on record to the court, thereby rendering them devoid of any locus standi to challenge that order. Usually, an accused is conferred with the right to raise his defence when the Magistrate proceeds to take cognizance and cannot intervene or raise his defence unless a summons is issued. This, therefore, renders an order u/s 156(3) to be interlocutory, thus not subject to revision as per section 397(2) CrPC¹⁸.

In contrast, the Bombay High Court has held that after ordering u/s 156(3), nothing is pending before the Magistrate after such order is made, thus rendering it a final order and not interlocutory¹⁹. Therefore, such an order is revisable under the revisional powers of Sessions and the High Court. This view was also reiterated by the Delhi High Court in Nishu Wadhwa v. Siddharth Wadhwa case, conferring order u/s 156(3) a final order status²⁰.

Keeping both these points of view aside, another approach can also be witnessed from the analysis made by the Chhattisgarh High Court, wherein a common question of procedural law arose as to whether a Sessions court can exercise a revision power against an order made by the Magistrate ordering the registration of FIR and further investigation. The court, in this case, held that if the sessions court is allowed to exercise its revisional powers u/s 399, it will result in the nature of quashing the FIR, which only the High Court has, u/s 482 CrPC²¹. Therefore, the high court set aside the revision order made by the sessions court, also holding that order u/s 156(3) is an interlocutory order, rendering it alien to the remedy of a criminal revision.

Conclusion

The above discussion on this one sub-section viz., also a simple, one-lined phrase, shows how nuanced and technical the criminal procedural law is. Even to the present day, there still exists a need for landmark precedent to be delivered in this issue of revision of 156(3) order, taking into note all the contrasting points of view mentioned above. Recent times have also witnessed the growing trend of police-ruling party nexus, rendering opponents of the ruling party in a vindictive state. The very fact of approaching Magistrate u/s 156(3) is because of the reason of getting aggrieved by the non-compliant behaviour of the police department. This implies that there is a collusion between the accused and the concerned police officials, rendering the complainant in a helpless state. So, when the aggrieved complaint moves before the Magistrate to order an investigation, this might not give an unbiased, fair, transparent, and legal outcome, which therefore requires a separate pleading by the complaint’s counsel for investigation by another independent investigative agency such as CID, CBI or by any other Special Investigation Team (SIT). Such pleadings have become rampant in recent times, raising further questions on the independence of police departments and the increasing powers conferred on the Judiciary in regulating the executive affair of investigation. Therefore, the author wishes to conclude that the discussion around this concept is not just restricted to CrPC but largely involves the other pressing concerns in criminal law jurisprudence.

References

1. Lalita Kumari v. Govt. of UP, AIR 2012 SC 1515.
2. P. Chidambaram v. Directorate of Enforcement, 2019(9) SCC 24.
3. King Emperor v. Khwaja Nazir Ahmad AIR 1944 PC 18;
4. Abhinandan Jha and others v. Dinesh Mishra AIR 1968 SC 117; State of Bihar and another v. JAC Saldanha and others (1980) 1 SCC 554.
5. Priyanka Srivastava & Anr v. State Of UP & Ors, (2015) 6 SCC 287.
6. KL Prabakar v. The State and another, 2022 LiveLaw (Mad) 336.
7. M. Shyama Sundar Naidu v. State of Andhra Pradesh, 2022 LiveLaw (AP) 78
8. Babu Venkatesh vs. State of Karnataka, 2022 SCC OnLine SC 200.
9. Madhav Singh v. State of UP and Another, 2022 LiveLaw (AB) 94.
10. Sakiri Vasu Vs. State of UP and others (2008) 2 SCC 409.
11. Saurabh Tiwari v. State Of UP, 2022 LiveLaw (AB) 216; Kameshbhai Niranjanbhai Sopariwala v. State of Gujarat, R/SCR.A/12607/2021.
12. State of Maharashtra v. Ibrahim A. Patel, 2008 CriLJ 1496.
13. Central Bureau of Investigation v. State of Rajasthan and Anr., (2001) 3 SCC 333.
14. Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai, 1998 (1) Crimes 351.
15. Srinivas Gundluri v. Sepco Electric Power Construction Corporation (2010) 3 SCC (Cri) 652).
16. Tula Ram & Ors v. Kishore Singh, 1977 AIR 2401.
17. Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.
18. Father Thomas v. State of UP and another, 2011(1) ADJ 333.
19. Avinash Trimbakrao Dhondage v. State of Maharashtra 2016-ALL MR. (Cri)-985.
20. Nishu Wadhwa vs. Sidharth Wadhwa: 2017 SCC Online Del 6444.
21. Amarnath Agrawal v. Jai Singh Agrawal, 2015 SCC OnLine Chh 14.

This article is written by Mokshith Venkata Shiva Bhyri, a 2nd-Year Law Student (BA., LLB [Hons) student from the National Academy of Legal Studies and Applied Research (NALSAR), Hyderabad.