Last Updated on May 26, 2024 by Satish Mishra
In this post we will discuss about the powers of magistrate in Cognizable offences to order for an investigation .
In Skipper Beverages Pvt. Ltd. v. State, 2001 SCC OnLine Del 448 and Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439 , Supreme Court held that under Section 156(3) of CrPC, Magistrate was not bound to direct investigation by police and only on application of mind such direction could be given.
Court time again has held each case must be viewed depending upon the facts and circumstances. The order of Magistrate in forwarding a complaint to the police under Section 156(3) does not really require any elaboration except a direction as per law.
For public servant , sanction under 156(3) CrPC is still pending reference in Supreme Court. Note affidavit is mandatory in 156(3) CrPC as per directions in Priyanka Srivastava vs State of UP.
Also police investigation becomes crucial when recovery is to be effected from accused. Once the orders of FIR are given under Section 156(3), Magistrate has duty to ensure fair probe. Also magistrate must be conscious of consequences while passing order u/sec 156(3) and examine all relevant materials. But writ jurisdiction cannot be used to register FIR once the statutory remedies are not availed.
Kailash Vijayvargiya v. Rajlakshmi Chaudhuri and others Supreme Court has nicely explained the distinction between the power of a Magistrate to direct registration of an FIR and investigation at a pre-cognizance stage under Section 156(3).
That the High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the judgment of this Court in Sakiri Vasu v. State Of Uttar Pradesh And Others.
M/s Sujan Multiports Ltd. v. State of Haryana and Others.
POWER TO ORDER AN INVESTIGATION-
In this case, the Magistrate has the powers vested in him to order for an investigation even if the Police don’t intend to investigate the case. It can be only under the control of the Magistrate that the Police or any other person can carry out any form of investigation.
NAME OF THE COURT- The High Court of Punjab and Haryana at Chandigarh.
DATE OF DECISION- 12th March, 2019
NAME OF THE PARTIES-
- Petitioners-
M/s SujanMultiports Ltd.
- Respondents-
State of Haryana and Others.
BRIEF STATEMENT OF FACTS-
The present case comes in the form a petition that challenges the judgment passed in the year 2017 by the Additional Sessions Judge of Gurugram wherein the order passed by the Judicial Magistrate First Class has been upheld. This has arisen because of the Magistrate refusing to send the complaint that the petitioner filed to the police for the purpose of investigation and instead ordered for the recording of preliminary evidence in the complaint.
The facts of the case begins in the following manner-
The private respondents were employees in the company of the petitioner in various capacities. However, things went downhill when all the respondents sought resignation from the company. This led to the creation of suspicion in the minds of the Petitioner. In accordance with this, the records of the company underwent scrutiny by the Petitioners. It came to the fore that certain files and private e-mails were deleted from the computers of the company of the petitioners; these files were deleted by the private respondents. After having done considerable damage to the data privacy of the company, the private respondents have been submitted to have joined the business rival of the petitioner company.
Although certain files that were deleted could be recovered by the petitioner company, however, all the files couldn’t be retrieved by the petitioner company.
Therefore, the Petitioner filed a complaint under Section 156(3) of the Code of Criminal Procedure, with the notion that the police would be directed to file an FIR and thereby investigate the above mentioned incidents. But the Magistrate instead of issuing a direction to the police to register an FIR and investigate the incidents, ordered that the complaint must be taken and the Preliminary Investigation be conducted.
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The Petitioners were aggrieved by the said order and thereby approached the Court of Sessions Judge of Gurugram seeking a revision. However, the petition for revision was also dismissed by the Court.
Therefore, the present petition has been filed by the Petitioner’s under Section 482 of the Code of Criminal Procedure, challenging the order that was passed by the Revision Court, as well questioning the contention of the Magistrate.
In this case, however it is to be noted that the Magistrate had indeed duly recorded in writing the order, keeping in view the allegations that were made by the petitioner and based on the documents and evidences attached, it was found that the case did not require any registration of FIR and any kind of investigation to be carries out by the police. In this accord, the preliminary evidence recording was thereby ordered. Also, the judgment passed by the Revision Court considered the argument raised by the petitioner, that even though the Magistrate had the power to send the complaint to the concerned station house officer for the investigation of the case, however, the Magistrate is not entitled or bound to send the same to the Police. Also, it was further recorded by the complainant’s apprehension that he would not be able to collect evidence, if the police is not being sent the case for investigation, is totally baseless and meritless. The Magistrate is vested with the power to direct the Police to conduct an investigation of the case and to gather and collect evidence if there is an absolute need as under Section 202 of Code of Criminal Procedure. The Petitioner themselves had the right to summon for the record which he desires to bring forward during the trial. Therefore, the case was dismissed by the Revision Court.
ALSO READ- MAGISTRATE POWER UNDER SEC 156(3) OF CRPC
PETITIONER’S ARGUMENTS/ EVIDENCES-
The Counsel for the petitioner has contended while arguing the case that the order passed by the Magistrate is very non-speaking. The Magistrate is not bound to act like a post office, he has to pass an order with proper reasoning that ensured that there was a judicial application of mind. The counsel for the petitioner vehemently submitted that the Magistrate before declining to send a case for registration of FIR, the Magistrate is required to record in writing, the reasons which would invariably depict the judicial application of mind. It was further contended by the Counsel for the Petitioner that if the reasons are not included by the Magistrate or the reasons are not valid and appropriate then such an order can be held maintainable for revision. In the present case, the Revision Court itself has not given any cogent or compelling reasons for not ordering for the registration of FIR.
CONTROVERSY INVOLVED FOR ADJUDICATION-
- Whether the Magistrate is empowered with the power to order for investigation of the case under Section 156(3) of the Code of Criminal Procedure.
FINDINGS OF THE COURT-
Having perused the arguments from both the parties and after having taken note of the evidences in hand, the court held that it does not find any substance on the argument placed by the learned counsel for the Petitioner. With reference to Section 156(3) of the Code of Criminal Procedure, it can be determined that the Magistrate is vested with the power to direct the SHO of the Police Station to investigate the merits of the case, the Magistrate is authorized and competent to take cognizance under Section 190 of the Code of Criminal Procedure. Section 190 of the Code of Criminal Procedure entails that the Magistrate has a wide range of powers and can take cognizance of a case on receipt of any complain that constitutes such an offence, or upon receipt of information from any person or on their own knowledge as well, if they come to know that such an offence has been committed.
The Court substantiated that the when a complaint is moved before the Magistrate, the complainant moves to the Court of Magistrate for consideration. Post that, the Magistrate is bound to decide the course of action as to whether to proceed further as entailed in the provisions of Section 200 to 204 of the Code of Criminal Procedure, by taking notice and cognizance of the offence or before entering into the question of cognizance, ask the police to investigate the facts and circumstances of the case.
Looking at the above, the court held that the application decision under Section 156 (3) of the Code of Criminal Procedure in the first instance appears to be a pre-cognizance stage. If a magistrate happens to take cognizance of the offences and proceeds to complaint case then also, before further proceeding with the issue, the Magistrate is required to gather sufficient evidence by way of preliminary evidence. The court further held that if the Magistrate thinks that it is fit instead of asking the complainant to come up with more evidence, if the facts and the circumstances of the case are so that it would be appropriate to employ the Police for the collection of evidence with reference to the allegations made by the Complainant, then the Magistrate can direct the police to collect the evidence. But the Police can still give some reasons and file report under Section 157 of the Code of Criminal Procedure which empowers them to inform if they do not intend to investigate the case.
The Court held that even in such a case the Magistrate has powers under Section 159 of the Code of Criminal Procedure to order for an investigation of the case. Therefore, the Magistrate can be deemed as Master of the Jurisdiction of Investigation, and it is his under control, that the police or any other individual when authorized to investigate, shall investigate. But if the Magistrate takes cognizance of the offence and proceeds as per Section 200 to 204 of the Code of Criminal Procedure then it would be held as a ‘complaint case’, however, if at any stage prior to cognizance, the police is requested as per Section 156(3) of the Code of Criminal Procedure to conduct investigation and file a report, then the Magistrate would be taking cognizance of such a matter as a ‘police report’. But the Magistrate gets to decide the course of action, whether to proceed with for an investigation and to seek a report from the police or not. Section 202 of the Code of Criminal Procedure says that at any stage if the Magistrate thinks fit, even during the course of a complaint case, he can direct the Police to conduct investigation with regards any aspect. In case it is a trial based on a police report, the Magistrate has the power to order for an investigation at any point of time. This is in accordance with Section 173(8) of the Code of Criminal Procedure.
The Court with regards to the issue as to whether the Magistrate has to necessarily record the reasons for passing an order under Section 156(3) of the Code of Criminal Procedure, held that it is well settles that the recording of reasons is not the same as application of Judicial mind. Recording of reasons is necessary only if it is mandated via a provision. There are several provisions enshrined within the Code of Criminal Procedure that requires the Magistrate or any kind of court to record the sufficient reasons before arriving at a decision. But 156(3) does not entail that the Magistrate is required to record reasons.
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LIST OF JUDGMENTS INVOLVED-
- Anil Kumar and Others v. M.K. Aiyappa and Another[1]
- SantLal v. State of Rajasthan and Others[2]
- (Smt.) SaheenaBano v. State of Uttar Pradesh and Others[3]
All these cases have established that before declining or rejecting the case for registration of the FIR, the Magistrate is required to record substantial reasons for the same which show that there has been sufficient application of judicial mind in the direction of the said orders passed by them and that once the cognizable offence is disclosed in the complaint then the Magistrate is bound to refer the matter to the Police for the registration of the First Information Report (FIR).
- National Institute of Mental Health and Neuroscience v. Dr. K. Kalyana[4]
In this case, it was held that the recording of reasons while passing an order is required only if it is absolutely necessary under a provision.
- NupurTalwar v. CBI[5]
In this case, the Hon’ble Supreme Court held that despite the police, submitting a report, it is the Magistrate’s satisfaction whether if there is any need to issue any process in the case or not. The order of the Magistrate has to be always taken with supervisory executive or administrative order, instead of indulging in it as a part of a strict judicial process.
- MadhuBala vs. Suresh Kumar[6]
- Yousuf vs. Smt. AfaqJahan[7]
- C. Thangaraj vs. V.Engammal and others[8]
In these cases, it was held that the Magistrate can not only order for the investigation in a case but also order for an FIR and monitor and follow the investigations of a case.
- Pranab Kumar Mitra v. The State of West Bengal and another[9]
- Girish Kumar Suneja v. CBI[10]
- Bir Singh vs. Mukesh Kumar[11]
In all the three cases mentioned above it has been held by the Court and upheld that filing of revision is not a right of any party. It is the discretion of the Court and the Courts are vested with such powers of revision. Further, the power of revision cannot be sought because some there has been some error in the decision of the Court. It was held by the Hon’ble Supreme Court that revisional powers can be exercised only when there has been any jurisdictional error in the order of the Court and it cannot be used when the Court is wrong.
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ORDER-
The Court having no merits in the above-mentioned case therefore dismissed the case. Looking into the facts and the circumstances of the case, the court found that there was no process that was alien to the process of law that was adopted by the Magistrate or the Court to deal with the above dispute. By filing a petition the petitioner just wanted to adjudicate the correctness, validity and propriety of the order, therefore the above case just acts a second revision, in the garb of using the powers of the High Court under Section 482 of the Code of Criminal Procedure. Hence the case was dismissed.
This post was written by Haritha Dhinakaran
For case specific advice, you may contact Top/Best/Expert Criminal Lawyer Advocate in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar.
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[1]Anil Kumar and Other v. M.K. Aiyappa and Another, 2013(10) SCC 705.
[2]SantLal v. State of Rajasthan and Others, 2008(62) ACI 814.
[3](Smt) SaheenaBano v. State of Uttar Pradesh and Others, 2005(53) ACrC 939.
[4]National Institute of Mental Health and Neuroscience v. Dr. K. Kalyana, 1992 AIR SC 1806
[5]NupurTalwar v. CBI, 2012(3) RCR(Cr.)595.
[6]MadhuBala vs. Suresh Kumar;1997(3)RCR(Criminal)679
[7]Mohd.Yousuf vs. Smt. Afaq Jahan2006(1)RCR(Criminal)451
[8]T.C. Thangaraj vs. V. Engammal and others 2011(3) RCR (Criminal)751
[9]Pranab Kumar Mitra vs. The State of West Bengal and another, 1959
supp(1) SCR 6
[10]Girish Kumar Suneja v. CBI, 2017(3) RCR(CR.) 665 .
[11]Bir Singh vs. Mukesh Kumar, 2019(2) RCR(CR) 1.
