Analysis of Section 156(3) CrPC

An Analytical Exposition of Section 156(3) of the Code of Criminal Procedure, 1973: Powers, Procedures, and Judicial Scrutiny in India

Introduction

Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC) stands as a cornerstone in the Indian criminal justice system, empowering Magistrates to ensure that the police diligently perform their investigative duties. This provision serves as a crucial judicial oversight mechanism, enabling an aggrieved person to seek direction from a Magistrate for the registration of a First Information Report (FIR) and subsequent investigation when the police fail to act on information disclosing a cognizable offence. This article undertakes a comprehensive analysis of Section 156(3) CrPC, delving into its statutory framework, the nature and scope of the Magistrate's powers, procedural prerequisites for its invocation, its interplay with other statutory provisions, and the safeguards against its potential misuse. The analysis draws extensively from landmark judgments of the Supreme Court and various High Courts, which have shaped the contours of this significant provision.

The Statutory Framework of Section 156(3) CrPC

Section 156 CrPC is located in Chapter XII, titled "Information to the Police and their Powers to Investigate." The section, in its entirety, reads:[12]

"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."

Sub-section (1) confers upon the officer in charge of a police station the statutory power to investigate cognizable cases without a Magisterial order.[10] Sub-section (2) acts as a curative provision, preventing investigations from being challenged on grounds of lack of territorial jurisdiction.[10] Sub-section (3) is the focal point, granting a Magistrate empowered under Section 190 CrPC the authority to order an investigation "as abovementioned," which directly refers to the investigation contemplated under Section 156(1).[11] This provision thus provides a check by the Magistrate on the police performing its duties under Chapter XII CrPC.[11]

The Magistrate's Power to Order Investigation

Nature of Power: Discretionary

The power conferred upon a Magistrate under Section 156(3) CrPC is discretionary, as indicated by the use of the word "may".[13], [23] The Magistrate is not bound to direct an investigation by the police in every case, even if the allegations disclose a cognizable offence.[13] The Magistrate is required to exercise this discretion judiciously, applying their mind to the facts and circumstances of the case.[13], [16]

Pre-Cognizance Stage

A critical aspect of Section 156(3) is that the power thereunder is exercised by the Magistrate at a pre-cognizance stage.[1], [3], [6] This means the Magistrate orders investigation before formally taking notice of the offence under Section 190 CrPC for the purpose of initiating proceedings against the accused. The Supreme Court in Mohd. Yousuf v. Afaq Jahan[1] and Suresh Chand Jain v. State of M.P[3] clarified that ordering an investigation under Section 156(3) does not amount to taking cognizance. The examination of the complainant on oath, a requirement under Section 200 CrPC (which applies post-cognizance), is not a prerequisite for issuing a direction under Section 156(3).[3], [26]

Distinction from Section 202 CrPC

The power under Section 156(3) CrPC must be clearly distinguished from the power to direct investigation or inquiry under Section 202 CrPC. Section 156(3) falls under Chapter XII (Police's power to investigate), while Section 202 CrPC is part of Chapter XV (Complaints to Magistrates) and applies after the Magistrate has taken cognizance of an offence upon a complaint.[1], [6] In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, the Supreme Court elucidated that when a Magistrate receives a complaint, they may either take cognizance under Section 190 and proceed under Chapter XV (which includes examination of complainant under S.200 and inquiry/investigation under S.202), or they may send the complaint for police investigation under Section 156(3) without taking cognizance.[6] Once a Magistrate takes cognizance and embarks upon the procedure stipulated in Chapter XV (e.g., by examining the complainant under Section 200 CrPC and ordering an inquiry under Section 202 CrPC), they cannot thereafter revert to the pre-cognizance stage to issue a direction under Section 156(3).[4], [19]

Application of Judicial Mind

The exercise of power under Section 156(3) CrPC necessitates the application of judicial mind by the Magistrate.[5] An order under this provision should not be passed mechanically or as a matter of routine.[18] The Magistrate must be satisfied that the information reveals the commission of a cognizable offence and that police investigation is warranted.[13], [16] The Supreme Court in Priyanka Srivastava v. State of Uttar Pradesh emphasized that Magistrates must be vigilant and not allow the provision to be misused, particularly in disputes of a civil nature or to harass individuals.[5] The Magistrate is not to act merely as a "Post Office" but must adopt a judicial approach.[16]

Invocation of Section 156(3) CrPC: Procedural Aspects and Prerequisites

Approaching Police First (Section 154 CrPC)

While Section 156(3) provides a remedy, the general course is that an aggrieved person should first resort to the procedure under Section 154(1) CrPC by informing the officer in charge of a police station about the cognizable offence.[9], [17] If the officer refuses to register the FIR, the informant can approach the Superintendent of Police under Section 154(3) CrPC.[2], [15] It is generally after exhausting these remedies that an application under Section 156(3) is preferred.[2], [7], [25] The Bombay High Court in Panchabhai Popotbhai Butani v. State Of Maharashtra observed that an intimation to the police under Section 154(1) would normally be a condition precedent, though this is not an inflexible rule and exceptions exist.[9] Some High Courts have also noted the requirement of compliance with Section 154(3) before invoking Section 156(3).[14]

To curb misuse, the Supreme Court in Priyanka Srivastava mandated that an application under Section 156(3) CrPC must be supported by an affidavit of the applicant.[5] This ensures a degree of solemnity and accountability on the part of the applicant.

Mandatory Registration of FIR upon Direction

When a Magistrate, after applying their mind, directs an investigation under Section 156(3) CrPC, the police are duty-bound to register an FIR and conduct the investigation.[1], [2], [3] The Supreme Court in Suresh Chand Jain clarified that directing investigation under Section 156(3) implies that the police should register an FIR.[3], [15] This aligns with the principle laid down in Lalita Kumari v. Government Of Uttar Pradesh that registration of an FIR is mandatory under Section 154 CrPC if the information discloses the commission of a cognizable offence.[8], [14]

When is Police Investigation Necessary?

The Magistrate's discretion to order police investigation under Section 156(3) is often guided by the necessity for such investigation. This may be particularly relevant where allegations are serious, evidence is beyond the reach of the complainant, custodial interrogation appears necessary for recovery of articles or discovery of facts, or the case involves complex and complicated investigation that cannot be undertaken without the active assistance and expertise of the State machinery.[13], [16] If the allegations are simple and the evidence is within the complainant's reach, the Magistrate might opt to proceed under Chapter XV by taking cognizance and examining witnesses.[13], [16], [23]

Scope and Extent of Magistrate's Powers under Section 156(3) CrPC

Directing FIR Registration and Investigation

The primary power under Section 156(3) is to order an investigation, which, as discussed, includes the registration of an FIR.[1], [2], [3]

Monitoring Investigation

The Magistrate's role does not necessarily end with the direction to investigate. The Supreme Court in Sakiri Vasu v. State Of Uttar Pradesh held that the Magistrate has the power to monitor the investigation to ensure its proper conduct.[2], [11], [15] This power is seen as inherent or implied within Section 156(3) to make the provision effective.[2]

Ordering Further Investigation

The power under Section 156(3) is an independent power and can extend to ordering further investigation even after the police submit a final report under Section 173(2) CrPC.[11] The Supreme Court in Vinubhai Haribhai Malaviya v. State Of Gujarat, affirming the view in State of Bihar v. J.A.C. Saldanha (cited in *Sakiri Vasu*), held that the Magistrate can order reopening or further investigation if dissatisfied with the initial investigation.[11] This power is distinct from the police's own power to conduct further investigation under Section 173(8) CrPC.

Implied Powers

The Supreme Court in Sakiri Vasu invoked the doctrine of implied powers, stating that Section 156(3) CrPC is wide enough to include all such powers in a Magistrate that are necessary to ensure a proper investigation, including directing registration of an FIR and proper investigation if the same has not been done or done unsatisfactorily.[2], [15]

Limitations and Competency

While the power under Section 156(3) is wide, it is not without limitations. In Devarapalli Lakshminarayana Reddy, the Supreme Court dealt with the interplay with the proviso to Section 202(1) CrPC, which restricts a Magistrate from directing investigation under Section 202 if the offence is exclusively triable by the Court of Session (unless the complaint has been made by a court).[6] However, this restriction applies at the post-cognizance stage (under S.202) and does not fetter the Magistrate's power under Section 156(3) at the pre-cognizance stage.[6]

In cases involving special statutes, such as the Prevention of Corruption Act, 1988, the competency to order an investigation under Section 156(3) CrPC lies with the Special Judge empowered to take cognizance of offences under that Act, not an ordinary Magistrate.[20], [24]

Judicial Review and Remedies

Revision against Order under Section 156(3)

An order passed by a Magistrate under Section 156(3) CrPC directing investigation is generally considered an interlocutory order, as it does not determine the rights of the parties but merely sets the criminal law in motion.[12] Consequently, a revision against such an order may not be maintainable under Section 397(2) CrPC, which bars revision against interlocutory orders.[12], [26] However, if a Magistrate dismisses an application under Section 156(3), the order may be revisable as it concludes the proceeding initiated by the application.

Alternative Remedy to Writ Petitions

Section 156(3) CrPC provides an efficacious alternative remedy to an aggrieved person whose FIR is not registered by the police. The Supreme Court in Sakiri Vasu[2] and Aleque Padamsee v. Union of India[7], and reiterated by various High Courts[25], has emphasized that instead of directly approaching the High Court under Article 226 of the Constitution or Section 482 CrPC for directions to register an FIR, the aggrieved person should first exhaust the remedies available under Sections 154(3) and 156(3) CrPC.

Safeguards Against Misuse of Section 156(3) CrPC

The judiciary has been cognizant of the potential for misuse of Section 156(3) CrPC, particularly in transforming civil disputes into criminal cases or to harass individuals.[4], [5] The Supreme Court in Priyanka Srivastava laid down stringent measures, including the mandatory filing of an affidavit by the applicant, to act as a deterrent against frivolous or malicious applications.[5]

The requirement for the Magistrate to apply judicial mind and not act mechanically serves as a primary safeguard.[5], [13], [16] Magistrates are expected to scrutinize complaints, especially those arising from commercial transactions or family disputes, to ascertain if a cognizable offence is prima facie disclosed and if police investigation is genuinely required.[4], [16] The practice of calling for an Action Taken Report (ATR) or Status Report from the police before deciding an application under Section 156(3) has also been noted, though this does not absolve the police of their duty to register an FIR if a cognizable offence is disclosed.[22] A Magistrate may dismiss an application under Section 156(3) if police assistance is not deemed necessary, if the evidence is primarily documentary and within the complainant's reach, or if the dispute appears to be predominantly of a civil nature.[21], [23]

Interplay with Other Provisions

The functioning of Section 156(3) is intrinsically linked with several other provisions of the CrPC:

  • Section 154 CrPC: As established in Lalita Kumari, registration of an FIR is mandatory if information discloses a cognizable offence.[8] Section 156(3) provides a judicial remedy when this mandate is not followed by the police.
  • Section 190 CrPC: A Magistrate empowered under Section 190 CrPC (which deals with taking cognizance of offences) can order an investigation under Section 156(3).[3], [6], [12], [24]
  • Section 173(8) CrPC: This provision allows the police to conduct "further investigation." The Magistrate's power to order further investigation under Section 156(3) (as affirmed in *Vinubhai Haribhai Malaviya*[11]) complements this, ensuring judicial oversight over the investigative process even post-submission of a final report.
  • Sections 200-202 CrPC: These sections outline the procedure when a Magistrate takes cognizance of an offence on a complaint (Chapter XV). This path is distinct from ordering a pre-cognizance investigation under Section 156(3).[1], [4], [6], [19], [26] A Magistrate cannot switch between these paths arbitrarily.[19]

Conclusion

Section 156(3) of the Code of Criminal Procedure, 1973, is a vital provision that upholds the principles of access to justice and police accountability. It empowers the magistracy to ensure that the investigative machinery is set in motion when cognizable offences are brought to light and the police are remiss in their duties. The judiciary, through a series of pronouncements, has meticulously delineated the scope of this power, emphasizing its pre-cognizance nature, the discretionary yet judicious application required by Magistrates, and the procedural safeguards necessary to prevent its abuse. While serving as an essential tool for complainants, the courts have also ensured that this provision is not used as an instrument of harassment or to settle civil scores. The requirement of an affidavit, the emphasis on application of judicial mind, and the availability of this remedy primarily after approaching the police under Section 154 CrPC, all contribute to a balanced application of this powerful section. The evolving jurisprudence surrounding Section 156(3) CrPC continues to refine its application, reinforcing its role in maintaining the rule of law and ensuring effective criminal administration in India.

References

  1. Mohd. Yousuf v. Afaq Jahan (Smt) And Another (2006 SCC 1 627, Supreme Court Of India, 2006)
  2. Sakiri Vasu v. State Of Uttar Pradesh And Others (2008 SCC 2 409, Supreme Court Of India, 2007)
  3. Suresh Chand Jain v. State Of M.P And Another (2001 SCC 2 628, Supreme Court Of India, 2001)
  4. Ramdev Food Products Private Limited v. State Of Gujarat. (2015 SCC 6 439, Supreme Court Of India, 2015)
  5. Priyanka Srivastava And Another v. State Of Uttar Pradesh And Others (2015 SCC 6 287, Supreme Court Of India, 2015)
  6. Devarapalli Lakshminarayana Reddy And Others v. V. Narayana Reddy And Others (1976 SCC 3 252, Supreme Court Of India, 1976)
  7. Aleque Padamsee And Others v. Union Of India And Others (2007 SCC 6 171, Supreme Court Of India, 2007)
  8. Lalita Kumari v. Government Of Uttar Pradesh And Others (2014 SCC CRI 1 524, Supreme Court Of India, 2013)
  9. Panchabhai Popotbhai Butani And Others v. State Of Maharashtra And Others (Bombay High Court, 2009)
  10. H.N Rishbud And Inder Singh v. State Of Delhi . (Supreme Court Of India, 1954)
  11. Vinubhai Haribhai Malaviya And Others v. State Of Gujarat And Another (Supreme Court Of India, 2019)
  12. Avinash v. State Of Maharashtra (Bombay High Court, 2015)
  13. Ravindra Kumar Petitioner v. State (Govt. Of Nct Of Delhi) & Anr. S (Delhi High Court, 2013)
  14. SMT. BANO RAHIM CHAUDHARI AND OTHERS v. STATE OF MAHARASHTRA, THROUGH P.S.O. P.S. MANGRULPIR, WASHIM AND ANOTHER (Bombay High Court, 2022)
  15. Om Prakash Sharma v. State Of M.P. And Another (Madhya Pradesh High Court, 2021)
  16. RAJINDER PRASAD JAIN v. STATE (GNCTD) (Delhi High Court, 2016)
  17. Ram Babu Gupta And Another v. State Of U.P And Others (Allahabad High Court, 2001)
  18. State Of Maharashtra v. Shashikant (2013 SCC ONLINE BOM 732, Bombay High Court, 2013)
  19. N. Amsaveni v. R. Loganathan & Another (2019 CTC 5 518, Madras High Court, 2019)
  20. B.S Yeddyurappa v. State Of Karnataka And Another (2011 SCC ONLINE KAR 217, Karnataka High Court, 2011)
  21. Balwant Singh Tomar v. Tigmanshu Dhulia (2013 SCC ONLINE MP 2143, Madhya Pradesh High Court, 2013)
  22. Paradise Credit P. Ltd. & Ors. Petitioners v. State Of Nct Of Delhi (2013 SCC ONLINE DEL 5163, Delhi High Court, 2013)
  23. ALI ASGAR v. THE STATE OF MADHYA PRADESH (Madhya Pradesh High Court, 2022)
  24. DINESH CHAUHAN v. STATE OF HP AND ORS (Himachal Pradesh High Court, 2024)
  25. SHRI. YELLAPPA DATTAPPA NAVALGUND v. THE STATE OF KARNATAKA (Karnataka High Court, 2024)
  26. Manohar Singh & Anr…. S v. State & Ors…. S (Delhi High Court, 2013)