Scope & Object of Section 156
Scope & Object of Section 156
Scope & Object of Section 156
SUMMARY/GIST OF THE PAPERS ON
OF THE CODE OF CRIMINAL
PROCEDURE, 1973.
INTRODUCTION :
Preamble of our Constitution guarantees to a citizen justice,
liberty, equality and fraternity. All these are possible only when there is
rule of law. The rule of law could discernibly be dissected into two well
They are not only the pillars of the Constitutional mandate, but are
linchpin to the growth, development and independence of any nation or
society. Governance obviously means good governance and it refers to
legitimate and accountable government under which fundamental rights
and human rights are respected and the Government controlled by the
rule of law are the basic elements of good governance. Rule of law
independent judiciary and an impartial and incorruptible police force.
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In India, the administration of criminal justice system is
(hereinafter referred to as “the Code”). Like in many other parts of the
world, under the Indian criminal jurisprudence, the system accepts two
procedures for redressing the grievance of a victim against the offender
including that by the State itself. The Criminal Procedure Code is
concerned with “how the law is enforced”. Criminal law involves “what
law is enforced”. The two accepted methods for enforcing administration
(Police/Investigating agency) the State agency.
anybody for that matter and the provisions of the Code provide a
punishment of a guilty person under these different methodologies. In
the event a person chooses to approach a police station and makes a
cases where some kind of preliminary inquiry may be necessary in the
However, even there, the officer in charge of a police station is under
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obligation to make an entry in the daily diary register as per police rules
and thereafter within the shortest possible time must register an FIR in
accordance with law. The information under section 154 of the Code of
Criminal Procedure is generally known as first information report. It is
pertinent to note that the word “first” is not used in section 154 of the
Code. Yet, it is popularly known as “First Information Report”.
Scope & Object :
As per provisions of Section 156 of Cr.P.Code, police officer
Magistrate.
Subsection (3) of Section 156 of Cr.P.Code enables to the
Magistrate to order investigation of an offence of which, he could take
precognizance stage only and not after taking the cognizance.
When a petition or complaint is presented before Magistrate
in which request is made for taking action as mentioned in Section 2 (d)
of the Code, the Magistrate has to ascertain whether the contentions
some offence, then the Magistrate is expected to take decision whether
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provided in Section 200 and subsequent section of Chapter XI of the
Code. There is discretion to the Magistrate in this regard. Though police
officer is duty bound to register the case on receiving information of
cognizable offence, the Magistrate is not bound to refer the matter to
Police under section 156 (3) of the Code State of Maharashtra Vs.
Shashikant Shinde, (2013 ALL MR (Cri) 3060)
The Magistrate can also monitor the investigation to ensure
proper investigation. When there is no sufficient material on record to
take cognizance of the offence, the Magistrate may refer the matter to
the police U/s.156(3) of Code of Criminal Procedure, for the purpose of
investigation.
When once the Magistrate after scrutinizing the complaint,
the sworn statements and other material available on record, comes to
conclusion that he can take cognizance of the offence. There is no need
to have resort to Section 156 (3) of Cr. P. Code. There are three
possibilities;
sufficient material is available,
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no sufficient grounds for proceeding and dismiss the complaint, and
matter.
The prime difference between the investigation under section
police in terms of section 202 of Cr P C is that, for the investigation
however in inquiry or investigation under section 202 no registration of
FIR is needed. In Devarapalli Laxminarayana Reddy & others Vs. V.
Narayana Reddy and others [(1976)3 SCC 252] the Hon'ble Supreme
Court held that,
"Information to the Police and their powers to investigate" while Section
magistrate"
202(1).
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The two operates in distinct spheres at different stages. The
cognizance stage when the magistrate is in seizin of the case.
An order made under section 156(3) of the Cr. P. C. is in the
nature of preemptory reminder or intimation to the police to exercise
Cr. P. C Such an investigation embraces the entire continuous process
which begins with the collection of evidence under section 156 of
Cr. P. C and ends with the report either under section 173 or section 169
of Cr. P. C.
Section 154 of the Code, but the police station does not register FIR as
higher authority exercising the powers of an officer in charge of a police
station would investigate the matter himself or direct the investigation
event the information of any kind received by the police officer in charge
of a police station relates to commission of a non cognizable offence, he
is obliged to proceed in accordance with the provisions of Section 155 of
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Section 156(3)of the Code and gives right to a person to approach the
investigation is completed by the investigating agency, it is required of
the said agency to file appropriate report in terms of Section 173 of the
take cognizance and conduct the trial and punish the offender, if found
guilty, in accordance with law.
It is expected that every person to give information to the
offence is made out or at least make a daily diary entry and then register
short time. Despite such information having been received by the police
officer, if an FIR is not registered under section 154(1) of the Code, the
remedy to the aggrieved person is provided under section 154(3) of the
Code. If action is not taken by the superior officer under section 154 (3)
of the Code, then any person has a right to invoke the power of the court
under Section 156(3) of the Code. Section 154 of the Code relates to
providing of an information to a police officer in charge of the police
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station, who then in case of a cognizable offence has the power to start
investigation forthwith in terms of Section 156(1) of the Code, where he
does not need an order of a Magistrate directing investigation.
Procedure :
State of U.P.& Oth.,(2014(2) SCC 1), held that the registration of First
Information Report is mandatory in Cognizable offences and action will
be taken against the police officer for his failure to register a First
Information Report on the complaint of a cognizable offence.
The Magistrate can also under the same provision monitor
the investigation to ensure a proper investigation. The Hon'ble Supreme
Court in Mohd. Yousuf vs. Smt. Afaq Jahan & another,( AIR 2006 SC
705), observed that, any Judicial Magistrate, before taking cognizance
of the offence, can order investigation under Section 156(3) of the Code
investigation it is open to the Magistrate to direct the police to register
the first information report. There is nothing illegal in doing so. After all
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registration of the first information report involves only the process of
entering the substance of the information relating to the commission of
Procedure. Even if a Magistrate does not say in so many words while
directing investigating under Section 156(3) of the Code of Criminal
Procedure that a first information report should be registered, it is the
complaint. The same view was taken by the Hon'ble Supreme Court
of India in Dilawar Singh vs. State of Delhi,( MANU/SC/3678/2007).
In Devarapalli
Laxminarayana Reddy and ors. Vs
Supreme Court explained the powers of the Magistrate under Section
156(3),200 and 202 of the Code of Criminal Procedure. Wherein it is
held that, it is well settled that when a Magistrate receives a complaint,
he is not bound to take cognizance if the facts alleged in the complaint,
disclose the commission of an offence. This is clear from the use of the
words “may take cognizance” which in the context in which they occur
cannot be equated with “must take cognizance”. The word “may” gives a
Section 156(3) of the Code , will be conducive to justice and save the
justified in adopting that course as an alternative to taking cognizance of
the offence, himself.
Section 156(3) of the Code of Criminal Procedure. In Mr. Panchabhai
vs State of Maharashtra, (2010 All M.R. (Cri.) 244), the Hon'ble
Bombay High Court held that “A petition under Section 156(3) cannot
be strictly construed as a complaint in terms of Section 2(d) of the Code
complete and definite details would not prove fatal to a petition under
ingredients of a cognizable offence. Such petition would be maintainable
before the Magistrate”. While dealing with the complaint, the Magistrate
is not bound to direct investigation under Section 156(3) of the Code.
He may direct the investigation under Section156(3) of the Code or take
the cognizance of the complaint. But it is not open to the Magistrate to
under Section 156(3) of the Code of Criminal Procedure Code.
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Cognizance :
The power to order police investigation under section 156(3)
spheres at different stages. The first is exercisable at the precognizance
stage and the second at the post cognizance stage when the Magistrate is
in seisin of the case. That is to say in the case of a complaint regarding
the commission of a cognizable offence, the power under Section 156(3)
of the Code can be invoked by the Magistrate before he takes cognizance
such cognizance and embarks upon the procedure embodied in Chapter
XV, he is not competent to switch back to the precognizance stage
and avail of section 156(3) of the Code. What is 'taking cognizance 'has
Banerjee, (AIR 1950 Calcutta 437), held that when the magistrate
applies his mind not for the purpose of proceeding under the subsequent
sections of this Chapter, but for taking action of some other kind, e.g.
ordering investigation under section 156(3), or issuing a search warrant
for the purpose of the investigation, he can not be said to have taken
cognizance of the offence.
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vs Shashikant Shinde ,(2013 All MR (Cri) 3060), held that when a
request is made for taking action as mentioned in section 2(d) of the
Code, the Magistrate is expected to apply his mind. The Magistrate has
offence then the Magistrate is expected to take decision as to whether
the matter needs to be referred to police for investigation as provided in
section 156(3) of the Code or he needs to proceed further as provided in
section 200 and subsequent sections of Chapter XV of the Code. There is
a discretion with the Magistrate in this regard. Though police officer is
offence, the Magistrate is not bound to refer the matter to police under
section 156(3)of the Code.
The proceeding under section 156(3) are at a pre cognizance
stage and the accused has no right to participate. The Magistrate cannot
recall the order by way of stay under section 210. He has no jurisdiction
to stay the investigation by police. The Magistrate cannot stay the arrest
of the accused.
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In Sessions Cases :
offence on basis of private complaint that resulted in submission of the
report under section 173 consequent upon reference under section 156
irregularity was held to be not proper Leela Ram v State of Haryana,
[1999 (8) Supreme 631]. Conclusion of Court cannot not be allowed to
Yarappa Reddy, [1994 (8) SCC 715]
In the case triable by Court of Sessions, the Magistrate on the
receipt of the complaint instead of conducting the inquiry himself under
156(3) Jogendranath Vs. State of Orissa (2004 (20) AIC 592) but in
Nariji Ram Vs. State of M.P. (2008(4) Crimes 292 MP.) contrary view
was taken. Magistrate has no jurisdiction to direct investigation under
156(3) when offenses are exclusively triable by court of Sessions. He has
to make inquiry himself under Section 202 of the Cr.P.C. Laxmidhar Vs.
State of Orissa [2004 Cr.L.J. 2816].
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Investigation :
Under Section 156 of the Code of Criminal Procedure, the
alleged cognizable offence without any authority from the Judicial
Officers. Neither the magistrate nor even the High Court can interfere
with those statutory rights by exercising the inherent jurisdiction of the
Court. The powers of the police officers under section156(1) of the Code
cognizable offence is exclusively within the domain of the investigating
agencies over which the Courts cannot have control so long as the
investigation.”
1988 to direct the police to investigate on a private complaint but a
Sessions Judge cannot order investigation. But Special Court has no
power to direct investigation by CBI. If there is complaint and counter
complaint. It is to be registered separately but same I.O. Should conduct
investigation Babu Vs. State of Karnataka (2007 Cr.L.J. 3802 DB).
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There is an implied power in Magistrate to order registration
of criminal offence and to direct officer in charge of concerned police
station to hold the proper investigation and to take all such necessary
steps that may be necessary for insuring a proper investigation including
monitoring the same. Sakeri Wasu Vs. State of U.P. (AIR 2008 SC
907).
conduct it in a particular way. Magistrate will be justified in prescribing
a time limit for the police to complete the investigation and send a
report. If lethargy is exhibited by police, the Magistrate can address the
head of the police to facilitate and expeditious report. N.A.S. Ansari Vs.
Mohd. Ali, (1990 Mad. Law W. (Cri.) 201)
Magistrate cannot direct investigation by CBI Anil Sharma
Vs. State of Rajasthan (2005 Cr.L.J. 713(Raj.) Magistrate cannot refer
the complaint to the C.O.D. Police for investigation and report, the order
Crimes 704]. The power can be exercised, even after submission of
report under Section 173 . To entertain an application under this Section
it is not a precondition that applicant must have approach the police
station and to furnish a proof that, he has applied to the Superintendent
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of Police under 154(3) Cr.P.C. An investigation was/ is permissible for
only through the police station of the area and not to any other police
station or police officer.
A Magistrate cannot interfere with the investigation by the
police. If the Magistrate on an application under Section 156(3) Cr.P.C.
is satisfied that proper investigation has not been done, or is not being
proper investigation and can further monitor the same though he should
not himself investigate. UOI vs. Prakash P.Hinduja [2003(6)SCC195])
Section 156(3) provides for a check by the Magistrate on the
police performing its duties under Chapter XII Cr.P.C. In cases where the
Magistrate finds that the police has not done its duty of investigating the
case at all, or has not done it satisfactorily, he can issue a direction to
the police to do the investigation properly, and can monitor the same.
under Section 156(3) is an independent power, and does not affect the
after submission of his report vide Section 173(8).
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even after the police submits the final report, as observed by the Hon'ble
Apex Court in State of Bihar vs. A.C. Saldanna [AIR 1980 SC 326].
held that ''Section 156(3) Cr.P.C. is wide enough to include all such
investigation, and it includes the power to order registration of an F.I.R.
and of ordering a proper investigation if the Magistrate is satisfied that a
proper investigation has not been done, or is not being done by the
police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is
very wide and it will include all such incidental powers as are necessary
for ensuring a proper investigation''.
held that “It is wellsettled that when a power is given to an authority to
do something it includes such incidental or implied powers which would
ensure the proper doing of that thing. In other words, when any power
grant, even without special mention, every power and every control the
denial of which would render the grant itself ineffective. Thus, where an
Act confers jurisdiction it impliedly also grants the power of doing all
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execution”.
Remedy against rejection :
The order under 156(3) is a judicial order and he is amneble
to revision Ajay Malviya Vs. State of U.P. (2001 Cr.L.J. 303 ALL DB),
but in some cases it was held that the order is interlocutory and not a
final order. Hence, revision is not maintainable Gangadhar Vs. State of
Orissa (2008 Cr.L.J. 839 Orissa.)
Conclusion :
Thus, to sum up the scope and object of section 156 (3),
Cr.P.C. :
mechanical manner.
refer and direct the police to investigate the cognizable offence.
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investigation under the provisions of Sec.156(3) of Cr.P.Code.
investigation by police machinery is actually required or not.
necessity to pass order u/s.156 (3) of Cr.P.Code.
6) Magistrate has to assign brief reasons for the order.
7) A certified copy of complaint is required to be sent to police
along with communication of the order passed by the Magistrate.
8) For the purpose of enabling the Police to start investigation,
nothing illegal in doing so.
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Thus the discretion of the Magistrate would determine the
192 of the Code as a guiding canon.
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Case Laws for discussion
In Priyanka Shrivastava vs State of U.P. [2015 Cri.L.J.
2396], it is held that, “power under section 156(3) warrants application
of judicial mind. Litigant cannot at its own whim invoke authority of
Magistrate. Thus, application under section 156(3) are to be supported
jurisdiction of Magistrate under section 156(3)”.
[ AIR 2015 SC 1294] Cri.P.C. S 167, release on bail – computation
period of 90 days – date on which accused was remanded to judicial
custody is to be excluded, charge sheet as such filed on 90 th day – there
is no infringement of section 167 sub section 2.
Certain guidelines are also issued by the Hon'ble Bombay
High Court in this regard in Ajit S/o. Ramrao Thete and ors. ...Vrs...
State of Maharashtra and ors. Criminal Application No. 1091/2013.
The Magistrate can direct the investigation under Section 156(3) of the
Code of Criminal Procedure and can direct the police to register FIR and
to file charge sheet or final report. After completion of investigation the
police may file charge sheet under Section 173 of the Code of Criminal
Procedure or file final report. But the final report is not binding on the
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Magistrate. Where a Magistrate orders investigation by the police before
taking cognizance under Section of 156(3) of the Code and receives the
report thereupon he can act on the report and discharge the accused or
straightaway issue process against the accused or apply his mind to the
complaint filed before him and take action under Section 190 of the
Code of Criminal Procedure as described above.
Section 156(3) of the Code merely means that alleged cognizable offence
should be investigated. Interference by superior courts with an order of
circumstances.
Rajinder Singh Vs. State of Panjab (AIR 2015 SC 1359)
(A) Penal Code, S. 304BDowry Prohibition ActS.2, 4Dowry Prohibition
Act (28 of 1961)Demand of DowryStatute must be given fair, pragmatic,
securityDemanded by any of the persons mentioned in S.2 of 1961 Act, at
or before or at any time after marriage which is reasonably connected to
death of married womenWould necessarily be in connection with or in
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relation to marriage unless, facts of a given case clearly and unequivocally
point otherwise.
Expression “soon before her death” in S.304BIs a relative expression”
Soon before” not synonymous with “immediately before”Time lags may
differ from case to caseDemand for dowry should not be stale but
304B.
Demand for money made shortly after one year of marriageFifteen days
Thereafter deceased, married woman, died by poisoningEvidence of her
accusedNo interference.
expressionProvisions of S. 66A are in its entirety violative of Art. 19(1)
() of ConstitutionNot saved under Art.19(2) of Constitution.
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Juvenile Justice (Care and Protection of Children) Act (56 of 2000), S.
R.12 – Juvenility – Claim of – Person below 18 years at time of incident
can claim benefit of Act any time – Such relief can be claimed even if a
matter has been finally decidedAccused above 16 years but below 18
years of age on date of occurrenceIs entitled to benefit of Act.
Kirshna Texport & Capital Markets Ltd., Vs. Ila A.
Agrawal and others,(AIR 2015 SC 2091) Negotiable Instruments Act
(26 of 1881), S. 138, 141 Dishonour of chequeOffence by company
Issuance of notice – there is no requirement of sending of individual
notices to Directors of Company.
(A) Guardians and Wards Act (8 of 1890) S. 7 – Hindu Minority and
Guardianship Act (32 of 1956), S. 6, ProvisoCustody of infantShould
be “ordinarily” with motherOrder giving interim custody to father on
prove that it is not in welfare of infant child to be placed in custody of
enactment. Interpretation of StatutesSperit of enactment.
(B) Guardians and Wards Act (8 of 1890), Sec. 14Custody
visitation rights of motherTrial court accordingly for carrying on that
order, passed order about weekend visitations to motherWrit petition,
respect prior orders.
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