COGNIZANCE BY MAGISTRATE – A BRIEF NOTE ON SECTION 156(3) CR.P.C. INCLUDING AN OVERVIEW OF SECTION 190 AND 200 OF THE CR.P.C.

Section 156(3) Crpc and 202 Crpc

Before going into further discussion, it is very important to understand what is the section.

Section 156:

Section 156 of the Criminal Procedure Code 1973 states-

“(1) 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 the power to inquire into or try under the provisions of Chapter XIII.

(2)  would have power to 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.

 (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.”

Section 190 of Crpc discusses about the Cognizance of Offences by Magistrate.

When the complaint is presented before a magistrate, the magistrate has three ways to proceed-

1. Take cognizance of the complainant and proceed with the examination of Section 200 Crpc.
2. Direct an investigation under section 156(3) Crpc.
3. Refuse to take the cognizance and drop the case.

When proceeding with the second, the order of an investigation has to be given by the Magistrate before the cognizance has been taken on the complaint. Therefore, if the magistrate has moved forward using Section 200 Crpc (i.e., has taken cognizance), the magistrate cannot trace back to Sec 156(3) and cannot order an investigation available under this section.

The object of such examination is to form an opinion whether these are sufficient grounds to proceed or not. If there are sufficient grounds to precede then the court will issue the process under section 204, if there are no sufficient grounds to proceed then in such case the court shall dismiss the complaint.

Only for this purpose, the examination of 200 is conducted.

Section 200:

Section 200 of the Criminal Procedure Code 1973 states- the procedure of the examination of the complainant and the witnesses-

“A Magistrate taking cognizance of an offence on the complaint shall examine upon oath the complainant and the witnesses present if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.”

The Confusion:

Both these sections would basically mean the same thing. They are interlinked to each other and are interwoven. A complaint u/s 200 is also a Complaint u/s 190. However, both these sections serve different purpose.

Wherein Section 190 lays down the process as to how cognizance of offences can be taken by a Magistrate. It is also a well-settled rule of law that only when cognizance is taken up, is the legal machinery set in motion and not before that.

Now, cognizance can be taken in one of the following ways as mentioned u/s 190 reproduced below,

1.  By way of a Complaint.

2.  Police report u/s 173 [Charge Sheet, Closure Report, etc

3. Own knowledge of the Magistrate or on the basis of information received from any person who is not a police officer.

Stressing on Point 1, if the Magistrate is taking cognizance by way of a Complaint, which may or may not be a Private Complaint

Then, such Magistrate has to proceed as per provisions of Section 200 to 203 and if needed, also Section 204.

Thus, we can say that the power to take cognizance of a Complaint is u/s 190 whereas u/s 200 the power of examining the complainant and other witnesses [if any] for the purpose of verification is laid down.

Both these sections refer to complaint to the same thing as has been defined u/s 2(d) of the Code which defines the term ‘Complaint’.

The relevancy of Section 200 is only for a Complaint, the cognizance of which is being taken u/s 190(1)(a) and the same shall not be relevant when cognizance is taken u/s 190(1)(b), i.e., Police Report filed u/s 173 after the completion of investigation.

Points of Difference:

• Pre cognizance and post cognizance:

Sub-section 3 of section 156 crpc empowers the judicial magistrate to direct the police officer to conduct an investigation. When the magistrate orders under section 156(3) crpc, he does so without taking cognizance of the offence. Whereas, under section 200 of the code of criminal procedure, the magistrate passes an order after taking cognizance of the case. Cognizance makes a substantial difference between the order of the magistrate passed under section 156(3) and section 200 CrPC. The cognizance has a significant effect because it infers that the court has applied its mind and begins the trial.

Once the magistrate takes cognizance, he cannot revert one step and disturb the investigation. It is the rule that there should be one investigation in one incident. Therefore, the order of a fresh investigation in the same matter is unacceptable.

• The scope of the magistrate’s power:

The magistrate while taking cognizance under section 200 CRPC he satisfies that the ingredients of the offence exist. If he is doubtful regarding the commission of a crime, then he can pass an order under section 202 CRPC instead of invoking section 156(3) CRPC. Section 202 CrPC empowers the magistrate to order a preliminary investigation by a police officer. When the finding of the preliminary investigation shows that no offence is made out, then the magistrate can reject the complaint. However, the magistrate has adequate power under section 202 CRPC then no need to order a fresh investigation under section 156(3). In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. [(2005) 7 SCC 467 : 2005 SCC (Cri) 1697] the supreme court held that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure.

Leading Judgements

•  Ramesh Bhai Pandurao Hedau vs. State of Gujrat

In a judgment passed in 2018, the Madras High Court has reiterated the issue settled in Rameshbhai Pandurao Hedau vs. State of Gujarat that once a Magistrate has taken cognizance of a criminal offence under Section 200 of the Code of Criminal Procedure (CrPC) s/he cannot fall back on Section 156 (3), CrPC to direct the police to register an FIR.

• Sakiri Vasu vs. State of U.P. And others.

Also, in Sakiri Vasu vs State of U.P. And Others on 7 December 2007, the Hon’ble Supreme Court held that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

• Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10

The Court observed that the clear position, therefore, is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) 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. For the purpose of enabling the police to start investigation, it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.

Conclusion

After all that we have read, we can conclude,

1. That the Magistrate is not expected to act in a mechanical way on the mere submission of a 156(3) Petition and direct the registration of FIR only because a party is asking for it.
2. That the court needs to be satisfied as to the substance of the application filed and must decide whether there has been the commission of a cognizable offence (non-Bailable) and that such offence requires proper investigation and inquiry.
3. Also, if the Magistrate so feel, he can treat an application u/s 156(3) to be a complaint case and thereafter adopt the procedure laid down u/s 200 to 202 by recording evidences and thereafter dismiss such complaint u/s 203.
4. Summon the accused u/s 204 if evidences laid down u/s 200 to 202 bring in enough light to the same.

Sources:

Ratanlal and Dhirajlal’s criminal Procedure code (Lexis Nexis)

D.Ramesh vs. V.Vijayakumar, https://indiankanoon.org/doc/141725085/

Sakiri Vasu vs. State of U.P. and Ors.2007 (10) SC 585

Procedural Difference between Section 200 and Section 156(3) CRPC – Bail Me Out

Section 156(3) CRPC or 200 CRPC, where to go? (vidhikarya.com)Can magistrate direct investigation under section 156(3) after taking cognizance (kanoonirai.com)