Whether before applying to Magistrate under Section 156(3) Cr.P.C., a person is obliged to make an application under Section 154(3) Cr.P.C.?

The main question involved in the Civil Appeal No. 1650 of 2020 [Dena Bank (now Bank of Baroda) v C Shivakumar Reddy & Anr.] before the Hon’ble Supreme Court of India was as-

First, we would like to bring herein necessary provision of Section 154(3) Cr.P.C. which are as –

“(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 sub-section(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 disclose 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.”

It is stated that there is no bar under the Cr.P.C. for a person to approach the Magistrate directly with a written complaint disclosing a cognizable offence. The power of the Magistrate is found under Section 190 in Chapter XIV of the Cr.P.C. The various options open to a Magistrate have been laid down in the judgment of the Hon’ble Supreme Court in Madbu Bala Vs. Suresh Kumar, (1997) 8SCC476:

“7. On completion of Investigation undertaken under Section 156(1) the officer in charge of the Police Station is required under Section 173(2) to forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Stale Government containing all the particulars mentioned therein. Chapter XIV of the Code lays down the conditions requisite for initiation of proceedings by the Magistrate. Under Sub-section (1) of Section 190 appearing in that Chapter any Magistrate of the first class and any Magistrate of the second class specially empowered may take cognizance of any offence (a) upon receiving a complaint of facts which constitutes such offence; (b) upon a ‘police report of such facts; or (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. Chapter XV prescribes the procedure the Magistrate has to initially follow if it takes cognizance of an offence on a complaint under Section 190(1)(a).

8. 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)(a) of the Code and proceed with the same in accordance with provisions of Chapter XV. The other option available to the Magistrate in such a case is to send the complaint to the appropriate Police Station under Section 156(3) for investigation. Once such a direction is given under Sub-section (3) of Section 156 the police is required to investigate into that complaint under Sub-section (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 stated that in Popular Muthiah V. State (2006) 7 SCC 296, the Hon’ble Supreme Court has held that the power to direct investigation under section 156(3) is to be read with Section 190 Cr. P.C.

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Disclaimer: Nothing contained in this document is to be construed as a legal opinion or view of either of the authors whatsoever and the content is to be used strictly for educative purposes only.

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