Criminal Procedure Code, 1973: Section 156 (3), Leading Caselaw: Madhu Bala v. Suresh Kumar

 Facts:

On 18-2-1988, the appellant filed a complaint against the three respondents, who are her husband, father-in-law and mother-in law respectively, before the Chief Judicial Magistrate, Kurukshetra alleging commission of offences under Sections 498- A (Cruelty) and 406 (Criminal Breach of trust) of the Indian Penal Code (IPC for short) by them. On that complaint the learned Magistrate passed an order under Section 156(3) (Police officer’s power to investigate cognizable case) of the Code of Criminal Procedure ("Code" for short) directing the police to register a case and investigate into the same. Pursuant to the said direction Thaneswar Police Station registered a case being FIR No. 61 of 1988 and on completion of investigation submitted charge-sheet (police report) against the three respondents under Sections 498-A and 406 IPC. The learned Magistrate took cognizance of the said charge-sheet and thereafter framed charge against the three respondents under Section 406 IPC only as, according to the learned Magistrate, the offence under Section 498-A IPC was allegedly committed in the district of Karnal. Therefore, the charges for section 498-A IPC was filed in Karnal and on this complaint the learned Magistrate passed a similar order under Section 156(3) of the Code for registration of a case and investigation. In compliance with the order, FIR No. 111 of 1994 was registered by the Karnal Police Station and on completion of investigation charge-sheet was submitted against the three respondents under Section 498-A IPC. On that charge-sheet the learned Magistrate took cognizance of the above offence and later on framed charge against them in accordance with Section 240 (Framing of charge) of the Code. While the above two cases were being tried, the respondents filed petitions under Section 482 (Saving of inherent powers of High Court) of the Code before the Punjab and Haryana High Court for quashing of their proceedings on the ground that the orders passed by the Chief Judicial Magistrates of Kurukshetra and Karnal directing registration of cases in purported exercise of their power under Section 156(3) of the Code were patently wrong and consequently all actions taken pursuant thereto were illegal. The high court accepted the claim of the victim and stated, under Section 156(3) of the Code a Magistrate can only direct investigation by the police but he has no power to direct “registration of a case.

Issue:

Whether magistrate is empowered to ask the police to “register a case” legally unsustainable under Section 156(3)?

Provisions: 

Section 2(d) defines “complaint” to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report

Under Section 2(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which a police officer may in accordance with the First Schedule (of the Code) or under any other law for the time being in force, arrest without a warrant. 

Under Section 2(r) “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 (Report of police officer on completion of investigation) of the Code

Section 154 (1) provides, inter alia, that the officer in charge of a police station shall reduce into writing every information relating to the commission of a cognizable offence given to him orally and every such information if given in writing 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.

Section 173(2) the officer in charge has to forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government containing all the particulars mentioned therein

Section 156 (3), Any Magistrate empowered under section 190 may order such an investigation as above-mentioned

Section 190 (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed

Ratio Decidendi:

From a combined reading of the above provisions it is abundantly clear that when a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under Section 190(1) and send the complaint to the appropriate police station under Section 156(3) for investigation. Further under 156 (1) thereof and on completion of investigation to submit a “police report” in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 190(1) (b) - but not under 190(1) (a). Since a complaint filed before a Magistrate cannot be a “police report” in view of the definition of “complaint” referred to earlier and since the investigation of a “cognizable case” by the police under Section 156(1) has to culminate in a “police report” the “complaint” - as soon as an order under Section 156(3) is passed thereon - transforms itself to a report given in writing within the meaning of Section 154 of the Code, which is known as the first information report (FIR). As under Section 156(1), the police can only investigate a cognizable “case”, it has to formally register a case on that report. 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. 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.”

Judgement: 

The magistrate is empowered to ask the police to file the complaint of a cognizable offence.