Powers of the Magistrate Under Section 156 (3)

Coverage of this Article

Key takeaways

-Section 156 (3) empowers the Magistrate to issue an order to the concerned officer-in-charge of a police station to draw up an FIR based on information received. 

Introduction

-The Criminal Procedure Code gives a proper structure for the implementation of justice through authorities under the State.

Section 156 (3)

-Though the provisions of Section 156 (3) are not very well defined or explained, several judgements by the courts have interpreted and discussed the provision in detail. 

Conclusion

-The powers of the Magistrate under Section 156 (3) extend from directing to file an FIR, ensuring proper steps towards an investigation are taken, monitoring such investigation to prevent any kind of bias, asking for updates on the same, reopening the investigation if needed, and ensuring that justice is delivered to the complainant in a timely manner.

Key takeaways

• Section 156 (3) empowers the Magistrate to issue an order to the concerned officer-in-charge of a police station to draw up an FIR based on information received. 
• The offence reportedly committed needs to be taken place within the territorial jurisdiction of the Magistrate. 
• The order can be directed only to the officer-in-charge and not any superior officer,
• The complainant is not to be on oath while filing such application with the Magistrate.
• The Magistrate can exercise such power both in the pre-cognizance as well as the post-cognizance stage.  

Introduction

The Criminal Procedure Code gives a proper structure for the implementation of justice through authorities under the State. It lays down the hierarchies to be followed, right from filing a complaint to finally delivering justice to the aggrieved. Section 154 (1) of the CrPC, states that whenever an officer-in-charge in a police station is informed of the commission of a cognizable offence, in writing, or orally, it is to be recorded along with the signature of the informer. After this information is transferred into a prescribed book, it comes to be known as FIR or First Investigation Report. This document is a very important part of the Indian justice system. It sets in motion the criminal law procedure and helps the investigative authorities collect first-hand, relevant information regarding a crime committed.  

However there are unfortunate instances in which the authorities are at fault, and the aggrieved citizen is not satisfied by the response on part of the authorities. In such a case, the aforementioned hierarchy is to be followed in order to make sure the crime is informed. The power of the Magistrate under Section 156 (3) is the highest point of this hierarchy. It gives the Magistrate the authority to direct investigation to authorities within its territorial jurisdiction.  This article looks into this power of the Magistrate with relevant cases. 

Section 156 (3)

Though the provisions of Section 156 (3) are not very well defined or explained, several judgements by the courts have interpreted and discussed the provision in detail. 

Section 156 of the CrPC states that :

 (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 the 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.

Clause 3 states that:

“Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.”

In this case, it is to be noted that the term “Magistrate” refers to judicial or metropolitan, according to the area. 

Further, one should refer to Section 190, in order to under the different types of Magistrates that hold this authority. They are: 

“ 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”

The sub-section (2 )says that:

“The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.”

 Clause (1) of Section 190 also lists down the conditions to be followed before issuing such an order by the Magistrate. It is to be issued:

• upon receiving a complaint of facts which constitute such offence;
• upon a police report of such facts;
• upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

It is to be noted that the Magistrate can issue such an order only within its territorial jurisdiction. In CBI vs State of Rajasthan [(2001) 3 SCC 333], the Supreme Court held that the Magistrate cannot direct the CBI to conduct any investigation. It can issue such order only to an SHO, that is the office-in-charge of any police station under its jurisdiction. It was also stated that such order does not direct a superior officer to conduct necessary steps towards investigation, though the superior can act by virtue of  Section 156. In State of Maharashtra vs. Ibrahim A. Patel [2008 CriLJ 1496]the Division Bench of Bombay High Court it was also held that if the said offence was committed outside the jurisdiction of the mAgistrate, it cannot issue an order of investigation on the same. 

In Mohd. Yousuf vs. Smt. Afaq Jahan and Anr [(2006) 1 SCC 627], the Supreme Court had held that any information that leads the Magistrate to issue an order of investigation to the concerned officer, shall not be taken under oath by the informant. This is because such an order is only a directive for registering the commission of a crime and does not automatically lead the Magistrate to take the matter into cognizance. In this judgement, the Court also made it clear that, even if the Magistrate in the order, has not spelled it out, it implies that an FIR is to be filed based on such information, and the officer-in-charge is to take all necessary steps towards a proper investigation. 

In Vinubhai Haribhai Malaviya and ors vs. State of Gujarat and another [(2019) 17 SCC 43], a three-judge bench of the Supreme Court, constituted by Justice Rohinton Nariman, Justice Surya Kant, and Justice V Ramasubramanium stated that though the provisions of Section 156 (3) are not well explained, the powers of the Magistrate provided by it, are far and wide. The judgement stated that the power of an order issued by the Magistrate under this Section, went upto the point of framing the charges, which made it extendable upto post-cognizance. The Bench held that this was necessary to ensure that all steps are taken towards “proper investigation” of the complaint received. This judgement was critiqued by various sections of the legal arena, as it was in conflict with several precedents. Most important among these was the judgement in Devarappally Lakshminarayana Reddy vs V Narayana Reddy [1976 AIR 1672] in which Section 156 (3) was found to be valid only in the pre-cognizance stage. However, the judgement in the Malaviya case held that the Magistrate’s powers were valid both in the pre-cognizant as well as post-cognizant stage, and that included monitoring the investigation if considered necessary. 

The investigating officer's ability to continue his or her inquiry even after submitting his or her report is unaffected by the Magistrate's authority to order further investigation under Section 156(3). (8). In State of Bihar vs. A.C. Saldanna [1980 AIR 326], the Magistrate ordered that the investigation be reopened even after the police had submitted their final report.

In Priyanka Srivastava and Ors. vs. State of U.P. and Ors. [(19.03.2015 - SC) : 2015 (3)  PLJR 78], the requisite conditions to be fulfilled by the informant before approaching the Magistrate were stated. This was to prevent misuse of the Section, in the light of the rising number of instances in which it was used for harassing individuals. Therefore, it was held that an affidavit signed by the applicant seeking invocation o the Magistrate’s jurisdiction was necessaryin order for such an application to be considered. This is done so that, if it is discovered later that the complainant filed a complaint on fraudulent events, they will be held accountable.TheMagistrate was also to verify and check the transparency of such information, before issuing an order.

Such an order passed by a Magistrate of authority cannot be ignored or avoided by the officer it is directed to. If on any such occasion that the concerned officer does not take necessary steps as directed by a Magisterial order, necessary action can be taken against him. This was held in Lalita Kumari vs State of UP [WP (Criminal) No. 68 OF 2008]. In Abdul Khaleque vs Susil Chandra Chaudhury And Ors. [164 IndCas 603], the Calcutta High Court set down certain instructions so that the ‘rule of law’ is not breached and such acts of indiscipline do not take place. It was held that an order passed by the Magistrate under Section 156 (3) shall be immediately dispatched to the concerned station on the same day, and the FIR shall be drawn upon within 24 hours of its receipt. On failing to follow these instructions, shall attract penal consequences as listed under Section 166B of the IPC. 

In cases of marital complaints that come under Section 494 of the Indian Penal Code, the Magistrate can act further only if the complainant is the person aggrieved by the offence. This is to be ensured by the Magistrate by checking with provisions under Section 198 of CrPC. This was held by the Andhra High Court in K. VijayaLaxmi vs K. Laxminarayana And Ors [2000 (2) ALD Cri 184].

In Union of India vs. Prakash P. Hinduja and another [2003 (6) SCC 195], the Supreme Court observed that the police investigation cannot be interfered in by the Magistrate. 

Conclusion

The powers of the Magistrate under Section 156 (3) extend from directing to file an FIR, ensuring proper steps towards an investigation are taken, monitoring such investigation to prevent any kind of bias, asking for updates on the same, reopening the investigation if needed, and ensuring that justice is delivered to the complainant in a timely manner. Though it is very briefly worded, the Section is wide and holds immense power in its ambits. It can be considered a crucial part of the system of justice in our country. Prevention of its misuse of any kind is equally important to uphold the ‘rule of law’, a fundamental principle of our Constitution.