Section 156 CrPC: Police Powers to Investigate Cognizable Offences

28.05.2024 

ANALYSIS OF SECTION 156 OF THE CRIMINAL PROCEDURE CODE WITH SPECIAL EMPHASIS ON POWERS OF MAGISTRATE

Introduction

The powers of the police to investigate a crime are delineated under Sections 154 and 156 of the Code of Criminal Procedure. The primary distinction between these provisions lies in the initiation of the investigation. Under Section 154, the police can commence an investigation only upon receiving information. Conversely, under Section 156, the police have the authority to initiate an investigation on their own accord or based on their knowledge.

The scope of Section 156 is limited to situations where the police exercise their powers according to the procedure established by law. This interpretation has been affirmed by the Hon’ble Supreme Court in the case of H.N. Rishbud and Inder Singh v. State of Delhi (1954). [1]If the police exercise their powers illegitimately, the Magistrate has the authority to intervene in the investigation. Additionally, any investigation conducted under Section 156 must comply with Section 173 of the Code, which requires the police to submit the final investigation report to the Magistrate who has jurisdiction to try the case.[2]

Investigations under Section 156 differ from those under Section 202 of the Code. The scope of Section 202 is limited to assisting the Magistrate in determining whether there are sufficient grounds to proceed further with the case. In contrast, Section 156 grants the police unrestricted power to conduct an investigation without the need to complete the formalities of filing a First Information Report (FIR). The latter part of the article provides a more detailed discussion of the differences between these two provisions.

Section 156 of The Criminal Procedure Code, 1973

Section 156 of the Criminal Procedure Code, 1973 is as follows:

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.[3]

Power of Police 

Under Section 156 of the Criminal Procedure Code (CrPC), the police are vested with extensive authority to conduct investigations into cognizable offenses. This provision allows the police to initiate and carry out an investigation without requiring prior authorization from a judicial authority. This autonomy ensures that the police can respond swiftly and effectively to criminal activities.

Upon completion of the investigation, the police are mandated to submit a report to the competent Magistrate as stipulated in Section 173 of the CrPC. This final report, often referred to as a charge sheet or closure report, is crucial for the judicial process, as it informs the Magistrate of the findings and the subsequent legal proceedings.

In addition to the initial investigation, the police have the authority to conduct further investigations under Section 173(8) of the CrPC. This provision is significant as it allows for the gathering of additional evidence or the re-examination of existing evidence if new facts or circumstances come to light. Such flexibility is essential in ensuring that justice is served, as it accommodates the dynamic nature of criminal investigations.

Mostly, the Judiciary in this case will play an oversight role. The Magistrate supervises and ensures that the investigations by the police follow the law and due process in their investigation. However, the Magistrate’s ability to intervene in the investigation is limited. Interference is only permissible if the police are found to be exercising their powers illegitimately or in a manner that contravenes legal norms and procedures. This restriction is vital for maintaining the independence of the police force in carrying out their investigative duties while providing a mechanism for judicial oversight to prevent abuse of power.

In summary, Section 156 of the CrPC empowers the police with significant investigative authority over cognizable offenses, ensuring prompt and efficient law enforcement. The requirement to submit investigation reports under Section 173 and the provision for further investigations under Section 173(8) enhance the thoroughness and flexibility of the investigative process. Meanwhile, the limited scope for judicial interference underscores the importance of adherence to legal procedures, balancing the autonomy of the police with necessary judicial oversight to uphold the rule of law.

Power of Magistrate 

Section 156(3) of the Criminal Procedure Code (CrPC) empowers a Magistrate to order the police to investigate a cognizable offense. However, the Magistrate must be competent to take cognizance of the case under Section 190 of the CrPC for such an order to be valid. If the Magistrate lacks this competence, any directive to the police for investigation would be rendered invalid.[4]

It is important to note that not all actions by the Magistrate constitute "taking cognizance" under Section 190. For instance, if the Magistrate orders an investigation under Section 156(3) or issues a search warrant to aid the investigation, this does not amount to taking cognizance, as clarified by the Supreme Court in Mohd Yousuf v. Smt. Afaq Jahan and Anr (2004).[5]

In R.R. Chari v. State of U.P. (1951), the Supreme Court held that a Magistrate’s powers under Section 156(3) are not confined solely to cases under Section 190(1)(c), where the Magistrate takes cognizance on his own motion or based on information received. These powers also extend to cases under Section 190(1)(a), where cognizance is taken based on a complaint presented before the Magistrate. Nevertheless, the Magistrate’s authority under Section 156(3) does not include interfering with the police’s investigation process.[6]

Powers of Magistrate under The Criminal Procedure Code, 1973

Section 156(3) of the Criminal Procedure Code (CrPC), which operates at the pre-cognizance stage, empowers a Magistrate, who is authorized to take cognizance under Section 190 of the CrPC, to order an investigation into any cognizable case. The Supreme Court in Panchabhai Popatbhai Bhutani & Others [7]ruled that a petition under Section 156(3) should not be strictly construed as a complaint in terms of Section 2(d) of the Code. The absence of a specific or properly worded prayer or lack of complete and definite details would not invalidate a petition under Section 156(3) as long as it states facts constituting the ingredients of a cognizable offense. Such a petition is maintainable before the Magistrate.

The issue of whether a Magistrate can direct the registration of an FIR against public servants for acts performed in the discharge of their duties without the sanction of the appropriate authority was considered by the Supreme Court in several cases. In Anil Kumar’s case, it was held that the Magistrate could not order the registration of an FIR without sanction by the appropriate authority. This requirement does not apply to individuals who are not public servants.

The Supreme Court has clarified the scope of Section 156(3) CrPC in several rulings. It is well established that the law does not prescribe a specific format for applications under Section 156(3) CrPC, nor does it require a verbatim reproduction of the factual allegations or all the ingredients of the alleged offense. However, it is imperative that the application under Section 156(3) contains facts disclosing a cognizable offense.

If the police fail to exercise their powers under Section 154 CrPC despite receiving intimation, the Magistrate can order an investigation under Section 156(3) CrPC. The Magistrate cannot refer the matter under Section 156(3) CrPC against public servants for acts done in the discharge of their duties without a valid sanction order. The Magistrate’s application of mind should be reflected in the order.[8]

In Priyanka Srivastava’s case[9], the Supreme Court provided detailed guidelines on Section 156(3) CrPC, that;

• Magistrates must remain vigilant regarding the allegations and the nature of the allegations and should not issue directions without proper application of mind.
• They should ensure that sending the matter for investigation is conducive to justice.
• Applications under Section 156(3) CrPC should be supported by an affidavit duly sworn by the applicant
• The affidavit ensures that the applicant is responsible and helps to verify the veracity of the allegations.
• The Magistrate should only send deserving cases for police investigation.

The Supreme Court has expressed concerns about unwarranted criminal prosecution of police officers. Subjecting police officers to unwarranted criminal prosecution for registering a case can undermine the fair investigation of the crime and negatively impact the morale and effectiveness of the police machinery, which can have serious and far-reaching consequences for society.[10]

Following the Supreme Court’s decision in Lalitha Kumari vs. Government of UP, [11] an initial investigation must be conducted by the police in particular cases to decide whether the information discloses the commission of a cognizable offense. This is done to screen out petty and vexatious complaints so that they reach the Magistrate only genuine cases with which he will have to send to the police for investigation.

Difference Between Investigation under Section 156 (3) and Section 202 of the Criminal Procedure Code

Confusion often arises regarding the relative scope of Section 156(3) and Section 202 of the Code of Criminal Procedure. Many matters have been decided in the past about the difference between these two provisions and whether or not they were applicable. One of the important cases was decided by the Hon’ble Supreme Court in 2021, under the title, Supreme Bhiwandi Wada Manor v. State of Maharashtra, dealing with explaining the differences between the two sections. [12]It stated that an order under Section 156(3) serves as a “pre-emptive reminder or intimation to the police to exercise their primary duty and power of investigation” and is independent of the process under Section 202. The power under Section 156(3) is broader than that under Section 202; it can be exercised even before cognizance is taken. Conversely, Section 202 can only be invoked after the Magistrate has taken cognizance of the issue.

A similar perspective was provided by the Supreme Court in Suresh Chand Jain v. State of Madhya Pradesh (2001), [13]where it was held that Section 156 pertains to the police officer’s authority to investigate cognizable offences, while Section 202 pertains to the Magistrate’s authority to direct an investigation by a police officer. Under Section 156, a Magistrate can order an investigation prior to taking cognizance. However, once cognizance is taken under Section 190, the standard complaint process must be followed.

The case of Ramdev Food Products v. State of Gujarat (2015) [14]further clarified the differences in the nature of cases handled under these provisions. The Supreme Court noted that Section 156(3) requires the Magistrate to apply their mind and can be exercised when credible information is available or when justice necessitates an immediate investigation. In contrast, Section 202 deals with situations where limited material is available, requiring the Magistrate to determine whether there is sufficient ground to proceed. These distinctions have been frequently cited by courts and were recently reaffirmed by a two-judge bench in Kailash Vijayvargiya v. Rajlakshmi Chaudhuri (2023).

Relevant Judgments 

• Ashok Gyanchand Vohra v. State of Maharashtra (2005)[15]

In this case, an organized crime was reported through a private complaint under Section 9 and Section 23 of the Maharashtra Control of Organized Crime Act, 1991. The Hon’ble Bombay High Court addressed whether the Special Court under this Act could order an investigation under Section 156(3) of the Code of Criminal Procedure (CrPC). Affirmatively, the High Court held that the Special Court possesses the powers of a Magistrate for the purposes of the Act, treating it as a court of original jurisdiction for taking cognizance of any matter.

• Laxmi Mukul Gupta @ Lipi v. State of Maharashtra (2018)[16]

In this instance, the petitioner sought the registration of an FIR under Section 156(3) of CrPC against the respondent for an offence under Section 420 of the Indian Penal Code (IPC). The Metropolitan Magistrate granted the application and directed the police to register an FIR. However, the Hon’ble Bombay High Court quashed this order, ruling that a Magistrate’s discretion under Section 156(3) is limited to determining whether the case involves a cognizable offence necessitating police investigation. It emphasized that intervention at the pre-cognizance stage is not permissible under this provision.

• C. Kumaravel v. Director General of Police (2019)[17]

The petitioners sought the High Court’s inherent jurisdiction under Section 482 of CrPC to direct the police to register their complaint. The Hon’ble Madras High Court clarified that when the police refuse to register an FIR under Section 154 of CrPC, the appropriate remedy is to resort to Section 156(3). Section 482 should not be used as an alternative. The Court issued guidelines, specifying that petitions under Section 482 must follow compliance with Sections 154 and 156(3) and be accompanied by an affidavit detailing the complaint’s history.

• Jaisingh Agrawal v. State of Chhattisgarh (2020)[18]

The petitioners challenged an order by a Special Court under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, directing the police to register an FIR. The primary contention was the Special Court’s lack of jurisdiction under Section 156(3) of CrPC. The Hon’ble Chhattisgarh High Court dismissed this contention, affirming the Special Court’s power under Sections 156 and 193 of CrPC and the Atrocities Act. It concluded that the Special Court could take cognizance and direct investigations without committal proceedings.

• Supreme Bhiwandi Wada Manor v. State of Maharashtra (2021)[19]

This case involved an appeal against a Bombay High Court order granting anticipatory bail, which questioned the Magistrate’s order to register an FIR under Section 156(3) without examining the complainant on oath as per Section 200 CrPC. The Hon’ble Supreme Court held that the High Court erred in requiring the complainant’s examination before the police investigation. It clarified that a Magistrate’s power under Section 156(3) is limited to determining if the crime is cognizable and whether police investigation is warranted.

• Smt. Rajlakshmi Chaudhuri v. State of West Bengal (2021)[20]

Here, the petitioner’s application under Section 156(3) of CrPC was rejected due to a nearly two-year delay in lodging the complaint. The Hon’ble Calcutta High Court noted that while delay could affect the merits of the case, it should not be the sole reason to reject a Section 156(3) application. The Court emphasized that the Magistrate must either direct a police investigation or, if taking cognizance, proceed under Section 202.

• Anjuri Kumari v. State (NCT of Delhi) (2023)[21]

The petitioner, after exhausting remedies at the Magistrate and Sessions levels, sought to invoke the High Court’s inherent jurisdiction under Section 482 of CrPC. The Hon’ble Delhi High Court ruled that such jurisdiction is only permissible in rare cases of grave miscarriage of justice or illegality. It upheld the Magistrate’s discretion under Section 156(3), stating that the Magistrate is not bound to direct an investigation even if a cognizable offence is made out.

• X v. Y (2023)[22]

In this case, a quashing petition was filed against an order by a Magistrate directing police investigation under Section 156(3) of CrPC without prior FIR registration. The Hon’ble Andhra Pradesh High Court rejected the petitioner’s contentions, emphasizing the serious fraud allegations and the necessity of a trial. It clarified that a Magistrate’s direction under Section 156(3) need not include detailed reasons, particularly when documents require thorough examination, thereby dismissing the quashing petition.

Recommendations

Magistrates acting under Section 156(3) CrPC should be competent to order the registration of a case (FIR) and the subsequent investigation. It is crucial that when passing such orders, Magistrates must apply their minds, and this application of mind should be clearly reflected in the order. To enhance the responsibility of complainants, the CrPC should be amended to require that applications under Section 156(3) be accompanied by a sworn affidavit. Instead of ordering the immediate registration of an FIR, Magistrates may first direct a preliminary inquiry by the police to verify the truthfulness and genuineness of the complaints. [23]In cases involving public servants, Magistrates should not direct the registration of an FIR without obtaining a valid sanction under Section 197(1) of the CrPC. Additionally, complaints against police officers for registering FIRs should undergo detailed scrutiny to ensure their genuineness, thereby preventing vexatious prosecutions. Ultimately, Magistrates should ensure that only deserving cases are referred for police investigation.

Conclusion

Section 156 of the Criminal Procedure Code (CrPC) endows the police with broad authority to investigate cognizable offenses without requiring prior judicial approval. This section delineates the roles and powers of both the police and the Magistrate in the investigative process. The police can initiate and carry out an investigation on their own accord when a cognizable offense is reported or comes to their notice.

The Magistrate also plays a crucial role under Section 156, with the authority to direct the police to conduct an investigation, when necessary, particularly in instances where the police have failed to take action on a cognizable offense. This ensures that the investigative process is not stalled due to police inaction. It is important to note that the Magistrate’s power to order an investigation is confined to cases involving cognizable offenses.

Moreover, the Magistrate has a supervisory role to ensure that the police comply with the procedures established by law during their investigation. This supervisory function is critical to maintaining the integrity and legality of the investigative process.

However, the Magistrate’s powers are restricted to the pre-cognizance stage of the proceedings. Once the Magistrate has taken cognizance of the offense, he or she cannot direct the police to conduct further investigations. This limitation ensures a clear demarcation of roles and responsibilities between the investigatory and judicial functions, maintaining the balance and checks inherent in the criminal justice system.

In conclusion, Section 156 of the CrPC establishes a framework that grants the police substantial investigative powers while simultaneously ensuring that there is judicial oversight to prevent potential misuse of these powers. On one hand, this provision makes it possible for law enforcement to act with some degree of urgency in respect to cognizable offenses committed against individuals by the other. On the other hand, it does not overlook such procedural safeguard which the individual may have under judicial supervision. This dual mechanism is, in short, required to be able to practice effective and fair criminal justice.