Madhu Bala v.

Suresh Kumar (1997) 8 SCC 476

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
and 406 of the Indian Penal Code (IPC for short) by them.
On that complaint the learned Magistrate passed an order under Section 156(3)
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.
Against the framing of the charge the
respondents moved the Sessions Judge in revision, but without success.
Thereafter the appellant filed another complaint against the respondents under
Section 498-A IPC before the Chief Judicial Magistrate, 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 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 of the Code.

While the above two cases were being tried, the respondents filed petitions
under Section 482 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 contention so raised found favour with the High Court, and by the
impugned judgement it quashed the orders of the Chief Judicial Magistrates of
Kurukshetra and Karnal respectively, pursuant to which cases were registered
by the police on the complaints of the appellant, and the entire proceedings of
the two cases arising therefrom.

According to the High Court, 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.
In drawing the above conclusion, it relied upon the judgements of this Court In
Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986] and Tula Ram v.
Kishore Singh [AIR 1977 SC 2401] and some judgments of the Punjab and
Haryana High Court which, according to it, followed the above two decisions of
this Court.
In our considered view, the impugned judgment is wholly unsustainable as it
has not only failed to consider the basic provisions of the Code but also failed to
notice that the judgments in Gopal Das and Tula Ram have no relevance
whatsoever to the interpretation or purport of Section 156(3) of the Code. The
earlier judgments of the Punjab and Haryana High
Court, which have been followed in the instant case also suffer from the above
two infirmities.
Coming first to the relevant provisions of the Code, 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 of the Code. Chapter XII of
the Code comprising Sections 154 to 176 relates to information to the police
and their powers to investigate.
Section 154 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.
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 State 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).

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 the 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 subsection (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.
The mode and manner of registration of such cases are laid down in the Rules
framed by the different State Governments under the Indian Police Act, 1861.
The other requirements of the said Rules need not be detailed as they have no
relevance to the point at issue.
From the foregoing discussion 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.
Indeed, even if a Magistrate does not pass a direction to register a case, still in
view of the provisions of Section 156(1) of the Code which empowers the
police to investigate into a cognizable ―case‖ and the Rules framed under the
Indian Police Act, 1861 it (the police) is duty bound to formally register a case
and then investigate into the same. The provisions of the Code, therefore, do not
in any way stand in the way of a Magistrate to direct the police to register a case
at the police station and then investigate into the same. 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.
Adverting now to the two cases of this Court on which reliance has been placed
by the High Court we find that in the case of Gopal Das' the facts were that on
receipt of a complaint of commission of offences under Sections 147, 323, 342
and 448 of the Indian Penal Code, the Additional District Magistrate made the
following endorsement: ―
To Shri C. Thomas, Magistrate 1st Class, for disposal. ‖ On receiving the
complaint Mr. Thomas directed the officer in charge of the Gauhati Police
Station to register a case, investigate and if warranted submit a charge-sheet.
After investigation police submitted a charge-sheet under Section 448 of the
Indian Penal Code and on receipt thereof the Additional District Magistrate
forwarded it to Shri R. Goswami, Magistrate for disposal. Shri Goswami framed
a charge under Section 448 of the Indian Penal Code against the accused therein
and 1 aggrieved thereby the accused first approached the revisional court and,
having failed there, the High Court under Article 227 of the Constitution of
India. Since the petition before the High Court was also dismissed they moved
this Court. The contention that was raised before this Court was that Mr.
Thomas acted without jurisdiction in directing the police to register a case to
investigate it and thereafter to submit a charge-sheet, if warranted. The steps of
reasoning for the above contention were that since the Additional District
Magistrate had transferred the case to Mr. Thomas for disposal under Section
192 of the Code it must be said that the former had already taken cognizance
thereupon under Section 190(1) (a) of the Code. Therefore, he (Mr.
Thomas) could not pass any order under Section 156(3) of the Code as it
related to a pre- cognizance stage; and he could deal with the same only in
accordance with Chapter XVI.
In negativing this contention this Court held that the order of the Additional
District Magistrate transferring the case to Mr. Thomas on the face of it did not
show that the former had taken cognizance of any offence in the complaint.
According to this Court the order was by way of an administrative action,
presumably because Mr. Thomas was the Magistrate before whom ordinarily
complaints were to be filed. The case of Gopal Das has, therefore, no manner of
application in the facts of the instant case. It is interesting to note that the order
that was passed under Section 156(3) therein also contained a direction to the
police to register a case.
In Tula Ram case, the only question that was raised before this Court was
whether or not a Magistrate after receiving a complaint and after directing
investigation under Section 155(3) of the Code and on receipt of the "police
report" from the police can issue notice to the complainant, record his statement
and the statements of other witnesses and then issue process under Section 204
of the Code. From the question itself it is apparent that the said case related to a
stage after the police report under Section 173(2) of the Code was submitted
pursuant to an order under Section 156(3) of the Code and not to the nature of
the order that can be passed thereunder Section 156(3).

The cases of the Punjab and Haryana High Court referred to by the learned
Judge in the impugned judgement need not be discussed in detail for they only
lay down the proposition that under Section 156(3) a Magistrate can only direct
investigation but cannot direct registration of a case for no such power is given
to him under that section. We repeat and reiterate that such a power inheres in
Section 156(3), for investigation directed thereunder can only be in the
complaint filed before the Magistrate on which a case has to be formally
registered in the police station treating the same as the FIR. If the reasoning of
the Punjab and Haryana High Court is taken to its logical conclusion it would
mean that if a Magistrate issues a direction to submit a report under Section
173(2) of the Code after completion of investigation while passing an order
under Section 156(3) it would be equally bad for the said section only "directs
investigation" and nothing more. Needless to say, such a conclusion would be
fallacious, for while with the registration of a case by the police on the
complaint, the investigation directed under Section 156(3) commences, with the
submission of the "police report" under Section 173(2) it culminates.
On the conclusions as above we set aside the impugned judgement and orders of
the High Court and direct the Magistrates concerned to proceed with the cases
in accordance with law. The appeals are accordingly allowed.