This research paper on Section 156 of Criminal Procedure Code (Cr.P.C.) is written by Ishani Goyal. She is Founder & M.D. Legal Thirst; and a 3rd year B.A.LL.B. (Hons.) law student of Faculty of Law, Maharshi Dayanand University Rohtak. She has submitted this paper while her Internship in Advocate General Office Haryana, Chandigarh. Provide your valuable comments on ishanigoyal217@gmail.com
Table of Contents
Abstract: –
This paper talks about the ambit of section 156 of the Criminal Procedure Code, 1973 [1]. This provision is one of the crucial provisions that ensure the best interests of both the accused & the accuser. This provision is put so nicely as at the same time it ensures that a fair investigation should be initiated on the information of accuser as the Section 156(2) safeguards a private person’s interest by providing an alternate process of registering an FIR from the higher police official on denial of police in-charge of a police station and it also ensures that no unfair/improper investigation should be done against the accused & accuser both by providing a supervisory jurisdiction to a Magistrate to supervise the whole investigation in Sub-section 3.
Though it bars any kind of interference of Magistrate in an investigation as the investigation is a sole right of police authority and any kind of interference will disturb the whole process. The findings of the court on the question that, “Whether the proceedings and order of Magistrate to register an FIR or do reinvestigate the matter should be considered as an ‘Interlocutory Order’ or a ‘Final Order’ under section 397(2) [2]?”
Section 156 of the Code of Criminal Procedure, 1973 is as under: –
“156. Police officer’s power to investigate cognizable case. —
- 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.
- 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.
- Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.” [3]
The heading of the section is a bit different from the context of the provisions laid down under it. The headings describe that the ‘Power of a Police Officer to Investigate the Cognizable Case’, but the three sub-sections are defined vastly to cover all the aspects to ensure a free and fair investigation.
Sub-Section 1 of 156 Cr.P.C.
Sub-section 1 defines the powers of a Police In-Charge of a police station to investigate the matter on receiving any credible information under section 154 Cr.P.C. [4], and in whose jurisdiction a cognizable offence is committed.
The term ‘Investigation’ as defined under Section 2 (n) [5] of the Criminal Procedure Code, includes the power to arrest the accused. This arrest in a cognizable offence can be without a warrant as in Section 41 (1) [6] of the code, and this becomes crucial in some cases to provide a discretionary power or can say free & reasonable access in order to investigate any offence as the offences are serious and immediate action is required.
Also, the definition of the term ‘Cognizable Offence’ as defined under Section 2 (c) [7] of Indian Penal Code, 1861, is an act that comes in the list provided in Schedule 1 of the code according to a police officer, or under the law in force at that time. Thus, this provision empowers the police officer to take action without waiting for any acceptance from the Judicial Magistrate having jurisdiction of that local area.
Case Laws: –
The Allahabad High Court in Bhagwan Das vs. State of U.P. and Ors. [8] (Para: 13) observes as under: –
“Duties of police and their power to investigate are enumerated in Chapter XII of the Code under caption ‘information to the police and their powers to investigate.’ So when a report, either oral or written made to the officer-in-charge of a Police Station discloses the commission of a cognizable offence it is obligatory upon the police to investigate cognizable offence and book the offender if any. [9]”
Bhagwan Das vs. State of U.P. and Ors.
Although contrary also appears in the when sometimes the power of two consecutive points of the trial map i.e. Investigation by police authority and then cognizance by Magistrate on the final report submitted by the Police Officer U/s 173 Cr.P.C [10]. These two powers are complementary and not overlapping as said by the Apex Court in State of Haryana v Bhajan Lal [11] in (Para:102) that the court can quash the F.I.R. or stay on the investigation & arrest U/s 482 Cr.P.C.; and it’s justifiable only when the court finds that no cognizable offence is made out as per the First Information Report: –
“Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) [12] of the Code except under an order of a Magistrate within the purview of Section 155(2) [13] of the Code.”[14]
State of Haryana v Bhajan Lal
# Ravuri Krishna Murthy V. State of Telangana & Ors.[15]
“Restraining Investigation and stay on arrest while not quashing of FIR is unacceptable as it is similar to anticipatory bail provision under section 438 CrP.C. and the police are time-bound to complete the investigation U/s 173 Cr.P.C.”
Ravuri Krishna Murthy V. State of Telangana & Ors.
It is to be noted that staying the arrest and investigation U/s 482 is an attack on the powers of the police officer to investigate the offence. As staying the investigation by the High Court U/s 482 Cr.P.C. is an abuse of power and seems to be interference with the investigating powers and to made recoveries U/s 27 of Indian Evidence Act. Also, before filing the challan/Chargesheet by police in the court, the court is not empowered to take cognizance of that offence, unless the court is of the view that there are no legal pieces of evidence that disclose the commission of a cognizable offence. The court is empowered to quash such an F.I.R. which doesn’t disclose a cognizable offence but if the court doesn’t do so; then the court should not interfere in an investigation by staying the arrest.
Sub-Section 2 of 156 Cr.P.C.
The next sub-section is beautifully designed in order to ensure the validity of the investigation by a police officer and this sub-section is needed to be read with section 36
Lilade Sitade Pavaiya and Ors. vs. State of Gujarat and Ors.[16]
The Gujarat High Court said that the powers granted under section 156(2) is correcting provision in which a police officer in charge of a police station seeks to investigate into an offence which is beyond his territorial jurisdiction or alternatively, an officer other than the officer in charge of the police station seeks to investigate into the offence which otherwise falls within the territorial jurisdiction of the said police station, in either case, Section 156(2) immunizes this investigation against any possible attack on the ground of absence of power with the concerned investigating officer.
[Para 10] “Sub-section (2) of Section 156 carves out a limited exception to Section 156(1) viz. that if in a given case it is found that a police officer other than the officer-in-charge of the police station is investigating a cognizable case which otherwise falls within the territorial limits of that station, then in such an eventuality such an irregularity in conducting of an investigation by an unauthorized police officer is sought to be insulated against by Section 156(2). But if the police officer in charge of the police station has no territorial jurisdiction to investigate into any cognizable case, that absence of power is not shielded by Section 156(2).”
Lilade Sitade Pavaiya and Ors. vs. State of Gujarat and Ors.
In H. N. Rishbud v. the State of Delhi; 1955 Cri LJ 526
[Para 10] “What Sub-section (2) of Section 156, Criminal Procedure Code cures is an investigation by an officer not empowered under that section i. e. regarding Sub-sections (1) and (3) thereof. Sub-section (1) of Section 156 is a provision empowering an officer in charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction. It is the violation of this provision that is cured under Sub-section (2). Sub-section (2) of Section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorized.”
In H. N. Rishbud v. the State of Delhi; 1955 Cri LJ 526
State of Bihar v. J.A.C. Saldanna [17],
The Supreme Court considering Section 3 of the Police Act and Section 173(8) of the Code held:-
[Para 19] “The power of the Magistrate under Section 156(3) to direct further investigation is an independent power and does not stand in conflict with the power of the State Government as spelled out hereinbefore. The power conferred upon the Magistrate under Section 136(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in the exercise of the power of superintendence under Section 3 of the Act lacked the power to direct further investigation into the case.
State of Bihar v. J.A.C. Saldanna
In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer-in-charge of a police station, which expression includes police officer superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise, that provision would have been a short answer to the contention raised on behalf of respondent 1.[18]
This landmark judgement validates the investigating power of the IGP by considering him a Higher Official under section 36 of Cr.P.C. who is validated to make an investigation out of his local jurisdiction.
Sub-Section 3 of 156 Cr.P.C.
Section 156 (3) states that any Magistrate empowered under section 190 may order such an investigation as above-mentioned in sub-section 1 & 2.
Now, it is necessary to know Section 190 of the Code of Criminal Procedure, 1973, which is as under: –
“190. Cognizance of offences by Magistrates. —
- Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—
- upon receiving a complaint of facts which constitute such offence;
- upon a police report of such facts;
- upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
- The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”[19]
This section has wide application in keeping a check on fair investigation by police authority & can even order re-investigation, registration of F.I.R., dismissal of investigation & non-acceptance of the final report under section 173.
In-State of Bihar v. J.A.C. Saldhana [20], the Supreme Court held that
[Para 19] “The power of the Magistrate under Section 156(3) to direct further investigation is an independent power and does not stand in conflict with the power of the State Government. The power conferred upon the Magistrate under Section 156(3) [21] can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8) [22].”
State of Bihar v. J.A.C. Saldhana
In Mohd. Yousuf V. Afaq Jahan [23], it was observed that the clear position is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) [24] of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. To enable the police to start an investigation, it is open to the Magistrate to direct the police to register an FIR.
[Para 11] “That a Judicial Magistrate, before taking cognizance of the offence, may order investigation under Section 156(3) [25] of the Code. If he does so, he should not consider the complainant’s oath because he was not taking cognizance of any offence therein.” [26]
Mohd. Yousuf V. Afaq Jahan
Whether Special Courts who have no magistrate court under them can order under section 156 (3) of Cr.P.C.?
The answer is yes, as in the High Court of Chattisgarh’s court finding the court said in Jaisingh Agrawal and Ors. V. State of Chhattisgarh and Ors.[27] that: –
[Para 39] “Special Courts constituted under SC/ST Act will also have power and jurisdiction to invoke Section 156(3) of CrPC to direct investigation in the exercise of the power conferred, to the Station House Officer subject to fulfilment of making two prior applications under Section 154(1) and thereafter under Section 154(3) of SC/ST Act by the complainant.”
Jaisingh Agrawal and Ors. V. State of Chhattisgarh and Ors.
The Kerala High Court has the same finding on this question in the Raghunathan v. State of Kerala [28], which is reproduced as:-
“Power under Section 156(3)of the Code can be invoked by the Special Judge, as the Special Judge under the Prevention of Corruption Act will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except these are specifically denied.”
Raghunathan v. State of Kerala
A similar proposition has been laid down by the Karnataka High Court in the matter of B.S. Yeddyurappa v. State of Karnataka and others [29] holding that the Special Judge under the Prevention of Corruption Act, 1988 can invoke power and jurisdiction under Section 156(3) of the Code in referring the complaint of the complainant to Special Karnataka Lokayukta for investigation and to report.
Ajay Malviya V. State of U.P. & Ors.[30]
The Allahabad High Court has the view that the magistrate can’t order under section 156(3) after accepting the Final Report U/s 173 Cr.P.C. because that means the magistrate has already taken cognizance on the Charge Sheet and the direction for re-investigation under section 156(3) is just an abuse of power.
[Para 5] “The observations aforestated are decisive of an order under Section 156 being of judicial nature. Investigation under Section 156(3) of the Code albeit “embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173” Devarapath Lakshminarayana Reddy v. V. Narayana Reddy [31] but the discretion vested in the Magistrate to either take cognizance under Section 190 and follow the procedure prescribed under Sections 200 and 202 of the Code or direct police investigation under Section 156(3) and on receipt of the report proceed according to law, is judicial discretion.”
Ajay Malviya V. State of U.P. & Ors.
Randhir Singh Rana v. State (Delhi Administration
The decision aforesaid has been quoted with approval in Randhir Singh Rana v. State (Delhi Administration [32].
“The Magistrate on receipt of a complaint is bound to apply his judicial mind and make a decision as to whether he should take cognizance of the offence under Section 190 of the Code or order for an investigation under Section 156(3) of the Code or in cases not falling under the proviso to Section 202, order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.”
Randhir Singh Rana v. State (Delhi Administration
Interlocutory Order :Section 156 (3) Cr.P.C.
The ‘Interlocutory’ term as per Webster’s New World Dictionary is defined ‘As an order other than a final decision.’ But the Indian Criminal Procedure Code under section 397(2) says that “orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties.” [33]
An order which substantially affects the right of the accused or decides certain rights of the parties cannot be said to be an interlocutory order to bar a revision to a Superior Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the Criminal Procedure Code.
But the order by the magistrate to register an F.I.R. using the powers under section 156(3) Cr.P.C. is whether an Interlocutory Order Or a Final Order? This question has many confusing but reasonable arguments given by various High Courts which changes case to case.
Ajay Malviya V. State of U.P. & Ors. [34]
The Allahabad High Court’s Division Bench held that: –
“An order made under Section 156 (3) is an interlocutory order and the remedy of a revision against such an order is barred under subsection (2) of Section 397.”
Ajay Malviya V. State of U.P. & Ors.
Jagannath Verma And Ors. vs The State Of U.P And Anr. [35]
The Allahabad High Court’s Lucknow Bench gave the contrary decision that’s of Ajay Malviya [36] in the below-mentioned words. The court said that: –
“An order under Section 156 (3) passed by a magistrate directing a police officer to investigate a cognizable case is not an order which impinges on the valuable rights of the party. An order by the magistrate for investigation is an incidental step in aid of investigation and trial and is interlocutory, similar to orders granting bail, calling for records, issuing search warrants, summoning witnesses, and other like matters which do not infringe upon a valuable right of a prospective accused and is, hence, not amenable to a challenge in a criminal revision in view of the bar contained in Section 397 (2). The bar under Section 397 (2) to the entertaining of a criminal revision cannot be circumvented by moving an application under Section 482”
Jagannath Verma And Ors. vs The State Of U.P And Anr. [35]
Avinash Trimbakrao Dhondage vs The State Of Maharashtra And Anr. [37]
The High Court of Bombay held that in the light of case Devarapalli Lakshminarayana Reddy & others v. V. Narayana Reddy & others [38] held that: –
“[Para: 7] In the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is like a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1).”
Avinash Trimbakrao Dhondage vs The State Of Maharashtra And Anr.
[Para: 14] “The order u/s 156(3) of the Code not being an interlocutory order, would obviously be revisable. We thus hold that the order u/s 156(3) of the Code of Criminal Procedure, 1973, is not an interlocutory order, but is a final order terminating the proceeding u/s 156(3) of the Code and that the revision u/s 397 or Section 401 of the Code would lie.”
Avinash Trimbakrao Dhondage vs The State Of Maharashtra And Anr.
- Code Crim. Proc. § 156
- Code Crim. Proc. §397(2)
- Code Crim. Proc. § 156
- Code Crim. Proc. § 154
- Code Crim. Proc. § 2 (n)
- Code Crim. Proc. § 41
- Pen. Code. § 2(c)
- Bhagwan Das vs. State of U.P. and Ors. (16.08.2018 – ALLHC) : Application U/S. 482 No. 27469 of 2018
- Bhagwan Das vs. State of U.P. and Ors. (16.08.2018 – ALLHC) : Application U/S. 482 No. 27469 of 2018
- Code Crim. Proc. § 173
- 1992 Supp(1) SCC 335
- Code Crim. Proc. § 156 (1)
- Code Crim. Proc. § 155(2)
- 1992 Supp(1) SCC 335
- Criminal Appeal Nos. 274-275 of 2021 (Arising out of SLP (Crl.) Nos. 6582-6583 of 2020)
- 1983CriLJ934
- 1980 AIR SC 326
- Upkar Singh vs. Ved Prakash and Ors.; Criminal Appeal No. 411 of 2002
- Code Crim. Proc. § 190
- (1980) 1 SCC 554
- Code Crim. Proc. § 156(3)
- Code Crim. Proc. § 173(8)
- (2006) 1 SCC 627
- Code Crim. Proc. § 156(3)
- ibid
- (2006) 1 SCC 627
- Criminal Misc Petition No. 173 of 2018, D/d: 27.10.2020
- Cri L.J. 33
- Cri LJ 1989
- 2000 (41) ACC 435
- AIR 1976 SC 1672
- (1997) 1 SCC 361: AIR 1997 SC 639
- Code Crim. Proc. § 397(2)
- 2000 (41) ACC 435
- Criminal Misc Case No 3778 of 2012
- 2000 (41) ACC 435
- CRIMINAL WRIT PETITION NO.159 OF 2014
- (AIR 1976 SC 1672)
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