Section 156 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!

The Supreme Court in S.N. Sharma v. Bipin Kumar, observed that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case, that the Magistrate can intervene and either direct an investigation, or in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case.

Where, however, allegations are made against the police personnel, the interest of justice would be better served if the case is registered and then transferred tor investigation by an independent agency like cm. But it is mandatory for the police officer to register, the case disclosing cognizable offence.

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The police have the statutory right to investigate into the circumstances of any alleged cognizable offence without order or authority from a Magistrate.

The Supreme Court in SI tariff Ahmed and others v. State (NCT of Delhi), held that the Court cannot direct an investigating agency to focus on particular offence and investigate accordingly. There should be no judicial interference of the Magistrate in the investigation of a cognizable offence by the police investigating authorities.

In the instant case, the Metropolitan Magistrate, Patiala House directed the investigating officer to add Section 307 in the present case and investigate the case accordingly. The High Court upheld the course adopted by the Metropolitan Magistrate to be permissible in law.

But the appellant challenged the legality of the High Court’s verdict on the ground that it was contrary to the law settled by Supreme Court in a series of cases. Allowing the appeal, the Supreme Court held that the view of the High Court is clearly unsustainable and has to be set aside.

The Apex Court relied upon the ruling of the Privy Council in King Emperor v. Kliawja Nazar Ahmad, which reads thus:—

“In India, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping and each should be left to its own function…………. ”

In State of Bihar and another v. J AC Saldhana and others the Supreme Court reiterated that there is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment.

Investigation of an offence is the field exclusively reserved by the executive, the police department, the superintendence over which vests in the State Government. Once the investigation is completed and the report is submitted to the Court to take cognizance of the offence under Section 190 of Cr. P. C., its duty comes to an end and the adjudicatory function of the judiciary begins.

Where there is failure on the part of Police to investigate, the complainant could lay a complaint before Magistrate but a writ by the complainant for direction to CBI to investigate would not be tenable.

Any irregularity or defect or illegality in investigation, however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Any violation of the provisions contained in sub-section (1) is curable under sub-section (2) But an investigation by complainant police officer is bound to reflect on the credibility of the prosecution case.

Thus in State of Rajasthan v. Kishore, in a wife-burning case, the investigating officer committed grave irregularity in omitting to send burnt clothes for chemical examination. The Supreme Court held that the mere fact that the investigating officer committed illegality or irregularity, does not cast doubt on prosecution case nor the trustworthiness of reliable evidence could be doubted to record acquittal on that count.

The Supreme Court in Rotash v. State of Rajasthan has reiterated that where the investigation was not fool-proof and suffered from certain defects, such a defective investigation would not lead to total rejection of the prosecution case.

In Ganesh Das v. State of Kerala, the Magistrate directed the police for registration of FIR and investigation in a complaint case under Sections 498A/406/ 506, IPC. It was held that the Magistrate while directing investigation under Section 156(3) is not empowered to direct registration of FIR as it was the function of the police officer.

In Baldeo P. Ganeriwal v. State of Gujarat, a prima facie case for the offence of criminal breach of trust and misappropriation of property was made out against the accused persons. Earlier enquiry was made in respect of the same complaint without registering F.I.R. The Court held that it did not operate as a bar for lodging complaint before the Court or its further investigation under Section 156 (3) of the Code.

In the case of Arup Kumar Ghosh v. State of West Bengal, it was alleged by the petitioner that financiers has taken forcible possession of vehicle from him engaging anti­social elements and police was not taking any action against them despite complaint by him.

The police version was that the allegation made by the petitioner did not make out any case of commission of cognizable offence so they did not make any investigation. The High Court of Calcutta held that in such a situation remedy after petitioner was to make complaint before Court of competent Judicial Magistrate and not to approach the High Court through a writ petition. Dismissing the petition, the Court ruled that the function of Judicial Magistrate could not be discharged by a Writ Court in such cases.

In a case, the petitioner who was an accused in some other case was attacked by unknown persons while he was being carried away in police van. Police had lodged F.I.R. against unknown persons.

The petitioner was injured in the said incident. Therefore, application of petitioner for registration of a case under Section 156 (3) against persons named therein was maintainable. Merely because the police had lodged F.I.R. against some unknown persons, it could not be said that subsequent application for filing F.I.R. moved by the petitioner under Section 156 (3) naming accused person was not maintainable. Therefore, order rejecting petitioner’s application was liable to be set aside.

The Calcutta High Court in Zahir Ahmad v. Azhar Khan, expressed a view that selling of goods with false trademarks affixed thereon are not cognizable offences under Sections 78 and 79 of the Trades Merchandise Marks Act, 1958 and therefore, police could not be directed to investigate such offences under Section 156(3) of the Code.

Similarly, in case of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, the investigation has .to be done in accordance with the special procedure laid down in that Act, hence the police has no power to embark upon a separate investigation in such cases under Section 156 (3) Cr.PC.

In the case of CBI v. Rajesli Gandhi, the Supreme Court has ruled that the decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice, hence the accused cannot have a say as to who should investigate the offences which he is charged with.

Taking a similar stand, the Allahabad High Court in Atique Ahmad v. State of U.P., held a view that so far question of transfer of investigation to an independent agency such as CBI is concerned, normally the investigation should be done by the local state police. The mere allegation that local police would not investigate the case properly does not entitle the accused to pray for handing over the investigation to some other agency.

The Court in this case further held that when police investigation violates rights of petitioner, a political leader under Articles 14, 19 and 21 of the Constitution, then a judicial review under Article 226 is permissible.

The Madras High Court in deciding the validity of petition for investigation under Section 156 (3) has held that the practice of Courts to order investigation under this section without looking into the allegations made in the complaint in order to ascertain whether is required investigation at all, was not proper.

Hence mere allegations without any material will not be a sufficient justification to order investigation under sub-section (3) of Section 156. In the instant case, a petition was filed against the Mayor of city alleging that he had amassed wealth disproportionate to known source of his income but no material was given by the petitioner except making reference to two properties. The Court held that the order accepting preliminary enquiry report that no case was made out against the city Mayor was proper.

Where the complaint alleged forgery and cheating in preparation of a Will, only vague allegations were made without giving details of alleged offences and the criminal prosecution was initiated by the complainant with the oblique motive to cause harassment in view of civil suit filed against him, there was no justification for Magistrate to order investigation of cognizable case and hence the rejection of application under Section 156 (3) was held to be proper.

Where the petitioner’s complaint alleged exercise of investigative power by CBI officers in mala fide manner and sought investigation by high ranking officers and there were repeated petitions by the petitioner by way of pressure tactics to pressurize the investigating agency, the High Court directed that investigation against petitioner be completed in accordance with law within two months from the date of receipt of the order.

The Supreme Court in Sikari Vasu v. Stale of Uttar Pradesh reiterated that the Magistrate has a role in the investigation of offences under the Code of Criminal Procedure. Analysing the powers conferred under Section 156 (3), the Court pointed out, “if the Magistrate on application under Section 156 (3) Cr. P.C. is satisfied that proper investigation has not been done or is not being done by the officers-in-charge of the concerned Police Station, he can certainly direct him to make a proper investigation and can further monitor the same, though he should not himself investigate.”

The Court also made it clear that parties should not be encouraged to seek remedy under writ jurisdiction or under Section 482, Cr. P.C. in matters connected with registration of F.I.R. and investigation. The High Court should also not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to seek remedy first under Section 154 (3) and Section 36 of Cr. P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156 (3) Cr. P.C.

The Supreme Court in Mohd. Yusuf v. Afaq Jalian, held that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156 (3), Cr. P.C. 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 police to start investigation it is open to the Magistrate to direct the police to register an F.I.R. There is nothing illegal in doing so. After all registration of an F.I.R. involves only the process of entering the substance of the information relating to 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 Magistrate does not say in so many words while directing investigation under Section 156 (3) that an F.I.R. should be registered, it is the duty of the officer-in-charge of the police station to register the F.I.R. regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Cr. P.C. only thereafter.

The High Court of Allahabad in Rajeev Kumar v. State of U.P. held that there could not be two F.I.Rs. against the same accused in respect of the same case. But when there are rival versions in respect of the same case, it would normally take shape of two different F.I.R’s. In the instant case, there were two cross-cases.

The cross-version was only an improvement of earlier version given in previous F.I.R. Registration of cross- case on basis of application under Section 156 (3) was held to be improper. The Court held that if the applicant wanted to add something by way of giving additional facts of the incident and felt that something was lacking in the previous F.I.R., it was open for him to say so in his statement before the police during the course of investigation. But it will not entitle him to register a second F.I.R. regarding the same incident implicating the same accused again.

A complaint disclosing a cognizable offence may be such that it may require a thorough investigation by the police and it is for this reason that power is given to the Magistrate under Section 156(3) to send the complaint to the police for investigation.

But a Magistrate can order investigation under this section only at the pre-cognizance stage. Before a Magistrate directs investigation under Section 156(3), he has to make sure that an inquiry into the case by himself might not be sufficient and therefore investigation by police is needed in the case. He is expected to record reasons for his decision.

The power conferred by Section 156(3) to the Magistrate may be exercised by him even after the submission of a report by the investigating officer if he deems further investigation necessary in the case. But a Magistrate having once taken cognizance of a matter cannot send the case for police investigation under this section.

For the purpose of the Code of Criminal Procedure, the term ‘Investigation’ generally means and includes—(1) proceeding to the spot (2) ascertainment of the facts and circumstances of the case (3) discovery and arrest of the suspected offender (4) collection of evidence relating to commission of crime such as examination of various persons, search of places, seizure of things to be placed in evidence before a Magistrate during trial and (5) necessary steps for initiating trial by filing of a charge-sheet under Section 173 etc.

The Supreme Court in Rasiklal Dalpatram Thakkar v. State of Gujarat,” held that in case of investigation on direction of the Magistrate, the investigating agency should not refrain from conducting the investigation on ground that it had no jurisdiction to investigate the offence.

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