NEW DELHI- [RISHI BHUTA & ASSOCIATES] I express my deep gratitude to my entire team and colleagues who gave their valuable time and energy in preparation of this Webinar and who did extensive research in helping me to present the Written Notes. The following lawyers are part of my team and because of whom the entire Notes could be compiled, researched and presented.
And two of my best friends –Dipti Shah and Neha Patil
I express my gratitude towards all of them for their sincere efforts And above all, express my thanks to my Uncle – Mentor and Senior Shri S. S. Gandhi without his blessings the presentation would not have taken place.
1. First Information Report
2. 156(3) Criminal Procedure Code
3. Course available to the Magistrate in case prayers under section 156(3) is rejected
4. Whether Magistrate, after taking cognizance of the offence and passing the order of inquiry and report under section 202 of Cr.P.C. once again in the light of provisions of section 156(3) of the Cr.P.C. can further issue directions to conduct investigation.
5. Magistrate can also dismiss the complaint under section 203 Cr.P.C. if he finds that there is no offence made out.
6. Magistrate can also issue summons to the accused if he feels that investigation is not required.
I. FIRST INFORMATION REPORT
a. Introduction – FIR which stands for First Information Report, FIR is a written document prepared by police when there is commission of any of the Cognizable Offence, and anybody who is victim of this offence or anyone on behalf of that victim person can lodge the complaint, it can be made to the police either orally or in writing, FIR is one of the most important part of the criminal law, FIR is considered an important document because it sets the process of criminal justice system in motion, it is considered as a base to start investigation related to cognisable offence.
b. SECTION 154.OF CRIMINAL PROCEDURE CODE
– Information in cognizable cases.
1. Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
2. A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
3. Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
c. Cognizable Offence – Cognizable offences are defined in subsection (c) of section (2) of Criminal Procedure Code 1973, These offences are those where a police officer can arrest a person without warrant, as per the first schedule of the Criminal Procedure Code, 1973 and after arrest accused will be produced before the Magistrate and Magistrate will examine the matter and he may require the police officer to investigate the matter. Cognizable offences are both bailable and non bailable. These offences are usually serious in nature for example- murder, rape, dowry death, kidnapping, theft, criminal breach of trust, unnatural offences, rioting armed with deadly weapon, waging war against the government of India.
d. Once an FIR is registered under section 154 of Cr.PC. the Police starts investigation in the case / offence. The Police can close the FIR i.e. the case or the investigation into it, only as per prescribed procedure. They cannot simply close the case without commencing the investigation and coming to the final conclusion. Once investigation is complete the FIR along with investigation material culminates into Charge sheet.
e. The mandatory period to file charge sheet is either 60 days or 90 days depending upon the punishment of the offence, provided that the accused is in custody and if the accused is not in custody then the police have got sufficient time to investigate the offence and file chargesheet. Even after filing of charge sheet if new facts come to light during the course of investigation, the concerned police officer has powers to conduct further investigation under Section 173(8) Cr.P.C.
f. If charges are found to be false, police puts up its report in court and requests court to close the case. Sometimes crime is proven but after making all efforts offender is not traced, police seeks the permission to close the case. Normally report other than chargesheet is called Closure Report i.e. if Investigation Agency, do not get enough evidence to prove the guilt against offender they will make him execute a bailbond and state in their report that, they do not have enough evidence to prove his guilt and thus they don’t consider that such person has done any offence. (Basically remove their name from FIR) under section 169 Cr.P.C.
g. If the police doesn‘t have evidence after investigation that a case is made out, only option is submission of ‗A‘ ‗B‘ and ‗C‘ summary report in the concerned court.
h. The following are the four Options under which Report is filed by the Police –
i. ‘A’ Summary Case:
a. Where the Magistrate classifies the case as true but undetected.
b. Where there is no clue whatsoever about the culprits or property or in the case when the accused is known but there is no evidence to justify.
ii.‘B’ Summary Case:
a. When the Magistrate classifies the case as maliciously false.
b. When there is no evidence or prima facie case against the accused.
c. Applicable when false or frivolous cases are filed.
iii. In matters where ‘B’ Summary Report is filed by the Police:-
a. Usually a final report.
b. Will lead to acquittal of the accused, upon acceptance by the Court.
c. The police have to become the complainant and register a case against the original complainant, stating that he had complained to the police with malicious intent.
iv. ‘C’ Summary Case:
a. When the case is neither true nor false ‗C‘ Summary report is issued by the police in such a matter.
b. When the criminal case was filed due to mistake of facts or the offence complained about is of a civil nature.
v. That if the only accused named in the FIR dies before filing of the chargesheet then the case is abated. vi. If court is satisfied with the contents of reports filed by police, after minutely going through the report that there is not enough evidence against the accused, then only court allows to file it under ‗A‘, ‗B‘ or ‗C‘ summary, as the case may be. It’s a discreet power of court whether to accept the report or not. The magistrate will notify this to the concerned person/ complainant about the same. If the concerned person is not happy with the closure of the FIR then he can file the Protest petition in the court. In protest petition the court may ask the police for the further investigation or court may reject the closure report and take the cognizance of the offense. Once police present the report, it is upto the court whether to take cognizance on that report or not. Once court takes cognizance and issues summons the only options left with the accused are to file discharge before the court taking cognisance or challenging the entire proceedings in the higher courts.
II. 156(3) CRIMINAL PROCEDURE CODE:
a. Section 156 of Cr.P.C. reads as under:-
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 above- mentioned.
b. STEPS WHEN FIR IS NOT REGISTERED:- If the FIR is not registered by the concerned police officer, the aggrieved person has to approach Superintendent of Police under Section 154(3) of Cr.P.C. or other police officer referred to in under Section 36 of Cr.P.C. if despite approaching the Superintendent of Police or the officer referred to in Section 36 of Cr.P.C. the grievance still exists then the remedy available to the aggrieved person is to approach Magistrate under Section 156(3) of Cr.P.C. and further remedy of filing a criminal complaint under Section 200 of Cr.P.C.
The above position has been highlighted in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and reiterated in N. Subramaniam V/s. S. Janaki by Supreme Court of India on 20.03.2020 and held that if a person has grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under section 154 (3) of CR. P.C. or other police officer referred to in Section 36 of The Cr. P.C. If despite approaching the superintendent of police or the officer referred to in section 36 of the CR. P.C. his grievance still persists, then he can approach a magistrate under section 156 (3) of The Cr. P.C. instead of rushing to the High Court by way of a Writ Petition. Moreover he has a further remedy of filing a Criminal Complaint under section 200 of CR. P.C. The Magistrate has very vide powers to direct registration of FIR and to ensure a proper investigation, and for this purpose he can monitor investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the filing of Writ Petition simply because a person aggrieved has a grievance that his FIR has not been registered by police. If the report has been accepted by the magistrate and no Appeal/revision was filed against the order of the Ld. Magistrate accepting the Police report, then that is the end of the matter. However the Magistrate has not yet passed any order on the police report, he may do so in accordance with law.
c. JUDGEMENTS ON SEC 156 (3) Cr P C. The following judgments would highlight what are the mandatory requirements necessary for filing an Application under Section 156(3) Cr.P.C. before the Learned Magistrate.
i. Mrs. Priyanka Srivastva vs State of UP:-
AIR 2015 SUPREME COURT 1758
In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavor to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
ii. 2019 CRI LJ 245 Calcutta High Court:
Mukul Roy v State of West Bengal Guidelines are laid down for application of judicial mind by the Learned Judicial Magistrate while invoking power under Section 156(3) of the Code, as under—
1. The learned Magistrate would be well advised to verify the truth and the veracity of the allegations, regard being had to the nature of allegations of the case.
2. There has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3) of the Code of Criminal Procedure.
3. Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed which are the sine qua non for application under Section 156(3) of the Code.
4. An application under Section 156(3) of the Code should be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made.
5. A number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed.
6. Learned Magistrate would also be aware of the abnormal delay in lodging of the FIR in initiating criminal prosecution. Page | 14
iii. 2017 (2) ABR(CRI) 513 …. S.P. BODKHE vs STATE OF MAHARASHTRA:
Complainant has to file complaint before the magistrate along with affidavits stating that he has complied with 154(1) and 154(3) only after which the magistrate has to consider the application. If an order is passed without compliance of 154(1) and 154(3) and proof of the same is furnished alongwith application u/s 200, the FIR can stand liable to be quashed for non-compliance.
iv. 2001 Cr.L.J. 3363 Ram Babu Gupta V/s. state of up Allahabad High Court:
On receiving a complaint, the magistrate has to apply his mind to the allegations in the complaint and he may not at once proceed to take cognizance and may order it to go 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 Chap XV of Cr.P.C.
d. POWER OF MAGITRATE UNDER SEC 156 (3) Cr.P.C. That the Magistrate while passing orders under Section 156(3) Cr.P.C. directing the police to conduct investigation has also the powers to direct them to lodge an FIR and such a direction is not bad in law.
i. AIR 1997 SUPREME COURT 3104 :: 1997 AIR SCW 3146: Madhu Bala v. Suresh Kumar and others Criminal Appeal Nos. 658-659 of 1997, (arising out of S.L.P. Cri. Nos. 3740-3741, of 1996),, decided on 23/07/1997 ―
10. From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a ”complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking the police to ‘register a case’ makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the Police to Investigate into a cognizable ‘case’ and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, does not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the Police would be ‘to register a case at the police station treating the complaint as the First Information Report and investigate into the same.‖
Mohd. Yousuf v. Smt. Afaq Jahan & Anr., 2006 (1) JT (SC): ―
10. ―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 complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
AIR 2001 SUPREME COURT 571 – Suresh Chand Jain v. State of M.P. and Others:-
―10. The position is thus clear. 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-incharge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
e. RELEVANT POINTS TO CONSIDER WHEN MAGISTRATE PASS ORDER IN SEC 156 (3) CR PC.
i. That it has also to be borne in mind that before any orders under Section 156(3) Cr.P.C. is passed the concerned Magistrate need not take cognisance of the offence because once he takes cognisance of the offence then the only recourse available to him is to refer the matter for investigation under Section 202 Cr.P.C.
ii. That once the police receives directions from the Learned Magistrate to investigate the offence under Section 156(3) Cr.P.C., the Learned Magistrate cannot interfere unless proper investigation is not being done by police. Person aggrieved by inadequate or improper investigation can again seek his remedy before the Learned Magistrate who can direct the officer in charge to make a proper investigation and can further monitor the same though he should not himself investigate. This position is highlighted in Judgment of Sajina V/s. State of Kerala in 2008 (5) ALJ (NOC) 1098 Kerala.
iii. That once the FIR is registered the police have to conduct investigation and file a report of the same before the concerned Magistrate. Herein the FIR would be termed as MECR (Magistrate Enquiry Crime Report) and subsequently during the course of investigation it would be only the decision of the Investigating Officer whether to arrest the accused or not or without arresting him file a chargesheet before the court.
iv. That in case the Investigating Officer does not find adequate material to file a chargesheet before the court, he can file a report about the same before the concerned Magistrate (which report is not binding on the concerned Magistrate) and in such a case the concerned Learned Magistrate has three options available before him:
a. After taking the report on record can direct further investigation;
b. After taking the report on record, issue notice to the complainant and after hearing him refuse to accept the report and issue summons to the accused;
c. After taking the report on record and after hearing the complainant, he may accept the report and dismiss the case.
This position of law is highlighted in the case of Abhinandan Jha V/s. Dinesh Mishra reported in 1968 (SC) AIR 117 where the question that was concerned was whether a Magistrate could direct the police to submit a chargesheet when the police after investigation into a cognisable offence had submitted a report of action under Section 169 of Cr.P.C. that there is no case made out for sending the accused to trial.
f. RIGHTS OF COMPLAINANT AND THE ACCUSED IN CASE AN ORDER UNDER SECTION 156(3) CR.P.C. IS PASSED OR NOT PASSED:-
When the Learned Magistrate passes an Order of 156(3) Cr.P.C. directing the police to conduct the investigation, the accused can challenge that Order before the Hon‘ble Sessions Court by way of Revision Application and if FIR is lodged then the FIR can be challenged by the accused in the Hon‘ble High Court by filing a Writ Petition under Section 482 of Cr.P.C. but there is no bar on the police to arrest the accused till the time the accused is either protected by the court or no coercive action is directed by the court. Further, if the Learned Magistrate does not pass an Order under 156(3) Cr.P.C. then the complainant can challenge that Order before the Hon‘ble Sessions Court in a Revision Application and if he does not succeed there, he can file an Application under Section 482 Cr.P.C. for challenging the Orders of the Learned Magistrate as well as the Learned Sessions Court. Needless to say that in such a challenge by the complainant the accused has to be made as a party and has to be heard which is the settled position of law as highlighted in Raghuraj Singh Rousha‘s case.
g. REMEDY TO THE ACCUSED WHEN SUMMONS ARE ISSUED:-
That in case the Learned Magistrate issues summons against the accused, the accused has rights to file discharge under Section 239 Cr.P.C. or challenge the Order of issuance of summons before the Hon‘ble Sessions Court or High Court.
h. That in case further investigation is ordered by the Learned Magistrate, the concerned Investigating Officer to investigate the case and file a fresh report before the Learned Magistrate which will be dealt with in accordance with law.
COURSE AVAILABLE TO THE MAGISTRATE IN CASE PRAYERS UNDER SECTION 156(3) IS REJECTED:-
a. Section 202 of Cr.P.C.:– If the Learned Magistrate feels that instead of referring the matter for investigation under Section 156(3) Cr.P.C., he should scrutinise the allegations carefully where in such an event refers the matter for investigation under Section 202 Cr.P.C. and takes the aide of the investigation which is limited in nature done by the police and then a report is filed and accordingly the court comes to a conclusion whether to proceed further in the case or not.
b. SECTION 202 IN THE CODE OF CRIMINAL PROCEDURE, 1973:
202. Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,–
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
c. OBJECT OF SECTION 202 OF THE CODE:-
i. The object of the provisions of section 202 the Code is to enable the Magistrate to form an opinion as to whether process should be issued or not. The object of section 202 of the Code came up for consideration before the Hon’ble Supreme Court initially in Chandra Deo Singh v. Prakash Chandra Bose  1 SCR 639. In this case Hon’ble Supreme Court was dealing with the Old Criminal Procedure Code i.e. Chap. 16 (now Chapter 15 of the New Code). There is no substantial change excepting renumbering of the sections in this Chapter, which contains Sections 200 to 203. And wherein it has been held that the object of Section 202 of the Code is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent the person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind that provision and it is to find out what material is there to support the allegations made in the complaint. It is the boundant duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made.
ii.Whether the complaint is frivolous or not is necessarily to be determined on the basis of material placed before the Magistrate by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 the Code can in no sense be characterised as a trial. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in the enquiry under Section 202 of the Code.
iii.The object of an investigation under S. 202 is not to initiate a fresh case on police report but to assist the Magistrate in contemplating proceeding already instituted upon a complaint before him as held by Hon’ble Apex Court has held in the case of D. Laxminarayana -Vs- Narayana Reddy, (1976) 3 SCC 252. Hon’ble Bombay High Court has held in the case of P.K. Ramkrushanan -Vs- Nilkant Kamble, 1996 Cr.L.J. 2119 (Bombay) that, the Magistrate proceeded to issue process without waiting for the report of investigation by police as directed by him under S. 202 (1) of the Act is illegality. Hon’ble High Court quashed that order and directed the Magistrate to wait for police report and act upon it thereafter.
d. The judicial enquiry under section 202 is to be held by the Magistrate himself [Ashok v Manish 1976 Cr.LJ 876 (Cal.)]. So the Magistrate can make enquiry himself or by another person or direct police investigation (Tula v Kishore AIR 1978 Supreme Court 2401). But he cannot direct an Executive Magistrate to hold the enquiry. [Ananta Charan Mallick v Sayed Goush Ali 1995 Cr.LJ 209 (Ori)].
i. Amendment Act, 2005 :- False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.
ii. Nature of inquiry:- Inquiry under section 202 is a limited one and the standard of Magistrate’s scrutiny of the evidence is not the same as that applied while framing charges (Rosy v State of Kernala AIR 2000 SC 637).
iii. Offence exclusively triable by a Court of Sessions:– When the case is exclusively triable by a Court of Sessions, the proviso to section 202(2), the Code enjoins upon the Magistrate to examine the complainant and all his witnesses who shall be examined during trial to decide whether process should be issued or not [Zubedda Khatoon Vs. Assist- ant Collector of Customs 1991 Cr.LJ 1392 (Karn)(DB)].
e. WHETHER POLICE CAN ARREST THE ACCUSED IN COURSE INVESTIGATION UNDER SECTION 202?:
i. ‗a police officer directed to make an investigation under Section 202 cannot place an accused person under arrest‖. Sankalchand Valjibhai Patel vs J.P. Chavda And Ors. (1979) 1 GLR 17. This judgment is upheld by the hon‘ble apex court in case of Ramdev Food Products Private Limited vs. State of Gujarat, reported in (2015) 6 SCC 439.
Under Section 202, since the Magistrate is in seisin of the matter and has yet to decide “whether or not there is sufficient ground for proceeding”, there is no occasion for formation of opinion by the police about credibility of available information necessary to exercise power of arrest as the only authority of the police is to give report to Magistrate to enable him to decide whether there is sufficient ground to proceed.‖ Ramdev Food Products Private Limited vs. State of Gujarat, reported in (2015) 6 SCC 439.
Explanation: Section 202 envisions that the question of process will be decided by the learned Magistrate and that the decision will be taken after the receipt of the report of the investigating officer. There is no question of arresting an accused person. If the police officer were to place the accused under arrest, he would be forestalling and foreclosing the decision of the learned Magistrate. The learned Magistrate on the receipt of the report of the Magistrate may come to the conclusion that there is no sufficient ground for proceeding in the matter and may decide not to issue any process. The police officer cannot, therefore, pre-empt the decision of the learned Magistrate and place the accused under arrest on his own.
IV. WHETHER MAGISTRATE, AFTER TAKING COGNIZANCE OF THE OFFENCE AND PASSING THE ORDER OF ENQUIRY AND REPORT UNDER SECTION 202 OF CR.P.C. ONCE AGAIN IN THE LIGHT OF PROVISIONS OF SECTION 156(3) OF THE CR.P.C. CAN FURTHER ISSUE DIRECTIONS TO CONDUCT INVESTIGATION?:
i. The enquiry envisaged under Section 202 of the Cr.P.C. is only to help the Magistrate to decide whether to proceed further for issuance of process or not. Undisputedly, the investigation ordered by the learned Magistrate under Section 156(3) by passing subsequent order under Chapter XII was required to be passed at pre-cognizance stage. The enquiry/investigation ordered under Section 202 of the Cr.P.C. was at postcognizance stage. The law does not permit the Magistrate to switch back for investigation under Section 156(3) of Cr.P.C. once he has chosen to adopt the course under Section 202 of Cr.P.C.
[Smt. Linabai @ Pramilabai vs The State Of Maharashtra & Anr Criminal Application No. 3582 of 2015].
The subsequent order of learned Magistrate for investigation under Section 156(3) of the Cr.P.C. and consequential act of registration of crime No. 2/2015, is apparently illegal, imperfect and not in accordance with the provisions of law. Therefore, the impugned order directing investigation under Section 156(3) and consequential registration of FIR vide crime No. 2 of 2015, deserves to be quashed and set aside. The below table would clearly spell out the difference between Section 156(3) Cr.P.C.and Section 202 Cr.P.C. and the stages at which the orders under those Sections can be passed:-
- Criminal Law set in motion by FIR
- Discloses the cognisable offence
- Chapter XII
- No direct control of Magistrate
- Act under Police Capacity
- No examination of complainant and witnesses on oath by Magistrate
- Exercisable at the pre-cognisance stage
- Direction to Incharge of Police Station to carry out investigation.
- Initiation is required to enquire credibility (truth) of information
- Objection of an under Section 156(3) is to register FIR and investigate the matter further.
- If Order passed under Section 156(3) then nothing remains before the Magistrate
- Chargesheet or Final Repo under Section 173
- Police report under Section 202 will come. There is no chargesheet.
- Sanction is not required for cases under Section 197 to direct investigation (Subject to Exception)
Section 200 / 202
- Criminal Law set in motion by complaint.
- Discloses the either or both cases.
- Chapter XV
- Direct control of Magistrate
- Act under Judicial Capacity
- Examination of Complainant and witnesses on oath by Magistrate.
- At the post cognisance stage.
- Direction to any person to carry out investigation
- Truthfulness (credibility) of information is verified by the Magistrate.
- Object of an inquiry (Order) under Section 202 is to enable the Magistrate to take material to issue process.
- If Order passed under Section 156(3) then nothing remains before the Magistrate .
- Though order is passed for police investigation, matter remains before the Magistrate.
- Police report under Section 202 will come. There is no chargesheet.
- Sanction required for cases under Section 197 to take cognizance.
V. MAGISTRATE CAN ALSO DISMISS THE COMPLAINT UNDER SECTION 203 IF HE FINDS THAT THERE IS NO OFFENCE MADE OUT:-
a. As per Section 203 of the Code of Criminal Procedure, if, after considering the statements on oath (if any) of the complaint and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
b. The expression ‗sufficient ground‘ in this Section points exclusively to the facts which the complainant brings to the knowledge of the Magistrate and to their establishing a prima facie case against the accused. In exercising his discretionary power of summary dismissal of the complaint, the Magistrate should not allow himself to be influenced by considerations altogether apart from the facts adduced by the complainant in support of the charge, nor by a consideration of the motive by which the complainant is accused.
c. The decision whether there is sufficient ground must be reached by the exercise of discretion based upon judicial consideration. A Magistrate should not dismiss a complaint without hearing the witnesses of the complainant present in Court. The reasons for dismissing a complaint should be based on the inference of facts arising from or discovered by the complaint, the examination of the complaint, and the investigation, if any, made under Section 202.
i. A Magistrate may dismiss a complaint—
If he finds that no offence has been committed upon the statement of the complaint;
If he distrusts the statement made by the complainant; and
If he finds that there is no sufficient ground for proceeding basing on the results of inquiry as provided by Section 202.
ii. It should be possible for the accused at this stage to satisfy the Magistrate that there was no case at all against him and that he can even recall the order issuing process under Section 204 and dismiss the complaint under Section 203.
d. A magistrate cannot dismiss a complaint unless he finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy. The process cannot be refused if that evidence makes out a prima facie case.
e. That if the Magistrate dismisses the complainant then the remedy to the complainant is to file a Revision Application before the Hon‘ble Sessions Court challenging the dismissal in which the proposed accused would have to made as a party and unless is heard the Revision cannot be decided. This concept of law on force in the Judgment of Raghuraj J. Singh Rausha V/s. M/s. Shivam Sundaram decided by the Supreme Court of India on 17.12.2008 in Appeal No. 2054 of 2008 where the question raised was whether the High Court in exercise of jurisdiction under Section 397 Cr.P.C. and Section
401 Cr.P.C. can pass order in absence of accused persons is the question involved in the Appeal.
f. That in case of Biju Purushothaman vs the State of Kerala decided by Hon’ble Kerala High Court on 20.06.2008 in Revision Petition No. 1255 of 2008 Section 203 Cr.P.C. was considered and observing that Section 203 Cr.P.C. will reveal that dismissal of a complaint can be done only at the post – cognisance stage. Section 203 Cr.P.C. reads as follows:- 203. Dismissal of complaint – If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. Thus, the power of dismissal of the complaint is not available to the Magistrate at the threshold. If after perusing the complaint, the Magistrate is of opinion that the averments therein do not at all spell out any offence, then he should definitely possess the power to throw away the complaint and terminate the matter then and there. This power is not dismissal but rejection. The Magistrate can, in such a case, reject the complaint.
VI. MAGISTRATE CAN ALSO ISSUE SUMMONS TO THE ACCUSED IF HE FEELS THAT INVESTIGATION IS NOT REQUIRED:–
a. Introduction:- Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued.
b. Section 204 in The Code Of Criminal Procedure, 1973
204. Issue of process.
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons- case, he shall issue his summons for the attendance of the accused, or
(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
c. While issuing process under Section 204 of the Code the Magistrate must be satisfied that there exists a prima facie case to summon the accused and should be satisfied with the material brought on record and at that stage he should not be worried about whether the complaint filed by the complainant would result into a conviction or an acquittal. Issuance of process under Section 204 Cr.P.C. is a step in the stage of trial and such an Order cannot be reviewed or reconsidered by the Magistrate.
d. That in Judgment of Pepsi Foods V/s Special Executive Magistrate decided on 04.11.1997 the Hon‘ble Apex Court clearly held that summoning of an accused in a criminal case is a serious matte, r a criminal law cannot be set into motion as a matter of course the Order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable. It is not that the Magistrate is silent spectator at the time of recording of preliminary evidence before summoning the accused.
e. In in case of Nupur Talwar vs C.B.I. 2013 AIR SCW 369, the Hon’ble Supreme Court has held as under:- Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.”
f. That if summons is issued to the accused under Section 204 Cr.P.C. he can challenge the issuance of such summons before the Hon‘ble Sessions Court by filing a Revision Application or the Hon‘ble High Court by filing a Writ Petition and there is no bar upon the accused to first approach the Hon‘ble Sessions Court to challenge the issue of summons.