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Practical Aspect Of Section 156(3) Of Criminal Procedure Code

Section 156(3) of CrPC, though a one line provision has troubled a lot and has been touched upon a lot.

Section 156(3) � Power of Magistrate u/s 190 to order investigation u/s 156.

InSakiri Vasu vs State of U.P And Others it was held that if a person has any grievance that the police is not registering an FIR then he can approach Superintendent of Police (SP) under Section 154(3) CrPC with a written application. Even if that does not yield a satisfactory result in a way that either FIR is not registered or proper investigation is not conducted, it is open to the aggrieved to approach the Magistrate under 156(3) of CrPC. If such an application is filed before the Magistrate, the Magistrate can direct the FIR to be registered and direct proper investigation to be made.

Therefore, if a case to registered u/s 156(3), 2 conditions are needed to be fulfilled:
  1. The Police Station and the SP have not lodged the FIR.
  2. The Police Station and the SP have lodged the FIR but proper investigation has not been done.
It is a kind of special power given to a judicial officer where the police do not or cannot file an FIR arbitrarily.

Before the above judgement, the aggrieved persons used to move an application under Section 482 of the code. Hence, the above judgement gave this power to the magistrates as from now on the aggrieved were instructed to move to the court u/s 156 (3) incase their FIR was not being registered.

Again, Sakiri Vasu judgement was reiterated in Supreme Court in the case of M. Subramaniam and Anr Vs S. Janaki and Anr where it referred to previous judgement of the Supreme Court in Sudhir Bhaskarrao Tambe vs Hemant Yashwant Dhage and Others.

If a person has a grievance that his FIR has not been registered by the police, or having been
registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC.

FIR is mandatory and preliminary enquiry can also be done but such enquiry is to be conducted not to see the truth of the FIR but to see what offence is made out.
There are only 2 routes namely Section 200 and 156(3) one can go if an FIR is not being registered.

Section 200 and 156(3) of CrPC.

Under section 200 of CrPC, the complaint is necessary to be filed. Once filed, Magistrate has to follow the process as laid out in CrPC starting from Section 200 (Examination of the complainant) and ending at Section 203 (Dismissal of Complaint).

Once a magistrate has taken cognizance of the matter u/s 200 CrPC, he shall not be allowed to fall back to 156(3) or the complainant cannot further go back to the magistrate under section 156(3) CrPC and ask him to register the FIR and Investigate.

In Madhao Rao vs State of Maharashtra it has been mentioned that the magistrate has powers to give direction for investigation even though complaint was filed u/s 200 as a Private Complaint.

It is not the primary duty of the Magistrate to take immediate cognizance of a complaint filed u/s 200 only because of the fact that it is a Private Complaint. The Magistrates have discretionary powers as to whether they will take cognizance or not. Section 200 in itself is a pre � cognizance stage, therefore the Magistrate is at full liberty to direct for inquiry by the magistrate himself or direct for investigation by police. It is after such inquiry or investigation that the Magistrate shall take cognizance based on merits and facts.

The Magistrate can do so i.e. take an alternative remedy only before taking cognizance.

In Devarapalli Lakshminarayana Reddy vs. V. Narayana Reddy, the Supreme Court held that when a magistrate receives a complaint. He is not bound to take cognizance. This is quite clear from the provision itself which mentions May order such investigation, this clearly signifies discretion that has been given to magistrates in these matters which differs from case to case. It not necessary for the magistrate to give direction to the police to lodge an FIR. Hence there exists a massive difference in the wordings of Section 154 and 153(6) of the code.

In Ramdev Food Products vs State of Gujarat, the Hon'ble Supreme Court observed that a direction of 156(3) is to issued only after application of mind by the Magistrate.

A Magistrate can order investigation under section 156 (3) only at a pre cognizance stage which means, that, if the Judge doesn't take cognizance under section 190, 200 and 204 and where a magistrate decides to take cognizance, he is not entitled by law to order any investigation under section 156(3).

Need for investigation � 1st question when application u/s 156(3) CrPC is filed. Requirements or evidences which the complainant could not collect.

In Skipper Beverages Pvt Ltd. vs State it was observed, FIR is to registered only when there is a need of investigation or to call for evidence which the complainant was not able bring to the court u/s 200 or 202 of the code. This Judgment has always been followed by majority of the courts in India till date.

A Magistrate, must apply his mind before passing an order under Section 156(3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact.

In Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai Hon'ble Judge of Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically, held that Magistrates should act under Section 156(3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusations.

Also, in Section 202 if the complainant thinks he cannot bring the necessary evidence then in that case the magistrate can direct the police to inquire and bring evidence but he cannot arrest anyone. The view of High Courts has been very clear regarding this matter as not to register FIR for petty issues, only when a serious offence has been committed or the evidence is such which shows commission of a cognizable offence.

Revisional power if application u/s 156(3) has been dismissed by the Magistrate

The issue whether there exists a revisional power against an order passed u/s 156(3) CrPC has been dealt by the Allahabad High Court in 2 instances which was further discussed and acted upon by the Delhi High Court.

The full bench of Allahabad high court in the decision of Father Thomas vs State of UP held that a prospective accused has no locus standi to challenge direction for investigation under Section 156(3) Cr.P.C. by filing a revision petition before cognizance or issuance of process against him.

Holding that a revision petition against such an order directing registration of FIR under Section 156(3) Cr.P.C. was not maintainable, the Full bench noted that the accused has a right to raise his defence only during the course of trial and even on filing of complaint, when the Magistrate proceeds to take cognizance, the prospective accused cannot intervene or raise his defence unless summons are issued. Thus, an order directing registration of FIR, being interlocutory in nature, a revision petition challenging such an order was barred.

But 3 years later the full bench of the same High Court faced a similar issue and this time the full bench distinguished the full bench of Father Thomas went on to hold that the order of the magistrate rejecting the application under 156(3) for the registration of a case by police is not an interlocutory order but a final order and is amenable to remedy of a Criminal Revision under section 397.

The Delhi High Court dealt with this at length in the case of Nishu Wadhwa vs Siddharth Wadhwa, wherein it was held to be a revisable order. But a further question which arises whether a revisional order still lies if the magistrate orders the police to file an FIR? Regarding this matter, we still don't have any landmark judgment as the matter is still before the Hon'ble Supreme Court.

One of the biggest misuse of this revisional power is that, there are often cases where application u/s 156(3) is filed just to harass the other party. There has been a wave of increasing number of false FIRs being registered in order to vindicate someone because of their personal enmity.

There exists a mandatory provision that the revisional court will have to summon the accused against whom such revision is filed. In the court of Metropolitan Magistrate, the alleged accused is not summoned, but the situation is different as without him being heard, the revisional court will not pass any order. There is a vacuum regarding this and there doesn't exist any judgment regarding this issue.

In order to curb this misuse, affidavit is to be attached with an application u/s 156(3).

Mr. Justice Deepak Mishra in Priyanka Srivastava vs State of U.P clearly mentioned that one has to attach an affidavit whenever he files a complaint under section 153(3), because if tomorrow it is proved that the complainant lodged a complaint on false happening of events then the complainant will be held liable afterwards.

The court opined that a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons.

The warrant for giving a direction that an application u/s 156(3) CrPC be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3).

Hence, the Supreme Court opined that applications under Section 156(3) CrPC are to be supported by an affidavit duly sworn by the applicant. The affidavit is held mandatory in order to attach propriety and genuineness to the application. The main purpose for making the affidavit mandatory along with the application under Section 156(3) was to maintain check and balances over frivolous and vexatious applications This was held necessary to abuse of this procedure of law.

The applicants also have to file an affidavit regarding the efforts made by them under 154(1) and 154(3) of CrPC. In the absence of such an affidavit, the magistrate does not get jurisdiction to refer a private complaint for investigation under Section 156(3) CrPC. [Karnataka HC vide order dated 9.07.2018 Kishor Piraji Kharat v. Rajeshwar Reddy Karnati Venkata, Crl. Petition No. 5016 of 2017]

Call for Status report by Magistrates

There was and perhaps has been a common practice that when we file an application of 156(3) the Magistrates gives a time of 2 months for the police to submit status report. This was dealt by Hon'ble Delhi High Court in Radha vs state.

Status Report to be called for within 2-4 days and not 6-8 months as was done prior to this judgement, as it often defeats or frustrates the purpose of investigation if it is a serious offence and there is a need of urgency. Not to be lingered on and if the offence is not a serious one then there is no need to file an FIR and instead proceed with section 200 of CrPC.

In cases where prima facie material in the complaint discloses commission of a cognizable offence, that too of a heinous nature which does not require to probe any document or contention of the rival parties, the magistrates should pass necessary directions under Section 156(3) of CrPC, instread of granting long adjournments. As it has been previously held that right to speedy investigation and trial are not only mandated by the provisions of CrPC but are also fundamental rights guaranteed to every citizen under Article 21 of Constitution of India.

Monitoring Application in Court � To deal with biased investigation

An application u/s156(3) can also be filed by accused for the magistrate to monitor the investigation so as to ensure that Fair investigation is conducted on part of the Police authorities. These directions can be given by the Magistrate in cases where proper investigation was not done according to the aggrieved person.

Earlier judgments didn't talk about such an interference on part of the court in a police investigation. But the Hon'ble Supreme Court in Sakiri Vasu Vs State of U.P And Ors, held that Magistrates have the power to monitor such investigation.

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 conduct a proper investigation, and the magistrate himself can monitor the same. Section 156(3) of the code, though briefly worded, includes all such powers that are necessary for ensuring proper investigation.

Same view was taken up in Dilawar Singh Vs State of Delhi (JT vide para 17) which reiterated the above judgement saying, even after FIR has been registered and police has made the investigation or is the making the investigation, which the aggrieved feels is not proper, such a person can approach the Magistrate u/s 156(3) CrPC, and if the Magistrate is satisfied then he can suitable steps to ensure the same.

The Magistrate can also order reopening of investigation even after the police submits its final report, vide State of Bihar Vs. J.A.C Saldanha (SCC : AIR para 19).
The courts have also held that not only matters pertaining to the complainant but also any evidence in favour of the accused is to be looked into and collected by the police authorities in order to ensure fair investigation in administration of justice as mentioned by the hon'ble Supreme Court in Babu Bhai vs State of Gujarat vide para 25 - Fair Investigation is the Hallmark of Justice, and all the evidences hence collected have to be presented to the court.

If negligence or Gross Negligence in investigation occurs, then as a defence lawyer we can move an application under section 156(3) on the part of the accused.
It is the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness.

The Investigating Officer "is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. [Babubhai and Ors. Vs State of Gujarat and Ors.]

Therefore, Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR 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) CrPC, though briefly worded, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

End Notes:
  1. Sakiri Vasu Vs State of U.P And Ors. [MANU/SC/8179/2007
  2. M. Subramaniam and Anr Vs S. Janaki and Anr [MANU/SC/0348/2020]
  3. Sudhir Bhaskarrao Tambe vs Hemant Yashwant Dhage [MANU/SC/1328/2010]
  4. Madhao Rao Vs State of Maharashtra [2013 5 SCC 615]
  5. Devarapalli Lakshminarayana Reddy Vs. V. Narayana Reddy [MANU/SC/0108/1976]
  6. Ramdev Food Products Vs State of Gujarat [MANU/SC/0286/2015]
  7. Skipper Beverages Pvt Ltd. Vs State [MANU/DE/0415/2001]
  8. Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai [MANU/GJ/0314/1997]
  9. Nishu Wadhwa Vs Siddharth Wadhwa and Ors. [MANU/DE/0043/2017]
  10. Priyanka Srivastava vs State of U.P [MANU/SC/0344/2015]
  11. Radha Vs State [MANU/DE/2204/2011]
  12. Babubhai and Ors. Vs State of Gujarat and Ors. [MANU/SC/0643/2010]

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