The Power of The Magistrate Under Section 156 (3) of Cr.P.C
Published :
June 01, 2012 | Author : YSRAO JUDGE
Category : Criminal law | Total Views : 30886 | Rating
Category : Criminal law | Total Views : 30886 | Rating
YSRAO JUDGE & Y.SRINIVASA
RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
The Power of The Magistrate Under Section 156 (3) of Cr.P.C
The
information under section 154 of Cr.P.C is generally known as F.I.R. It is
pertinent to see that the word '' first'' is not used in Cr.P.C in section 154
of Cr.P.C. Yet, it is popularly known as FIRST INFORMATION REPORT. Nevertheless
a person,who is a grievance that police officer is not registering FIR under
section 154 of Cr.P.C, such a person can approach Superintendent of Police
(SP), with written application, under sub-section 3 of section 154 of Cr.P.C.
In case of SP also does not still register FIR, or despite FIR is registered,
no proper investigation is done, in such a case, the aggrieved person can
approach Magistrate concerned under section 156 (3) of Cr.P.C. If that be so,
it is very essential and interest to know the powers conferred on Magistrate
under section 156 (3) of Cr.P.C. Therefore, I deem that it is very useful if it
is discussed with relevant case law as to the powers of Magistrate under
section of 156 (3) of Cr.P.C.
Section 156(3) is very briefly
worded. The powers of Magistrate are not expressly mentioned in section 156 (3)
of Cr.P.C. If that be so, a paucity will be crept mind that whether there is an
implied power in the Magistrate under Section 156(3) Cr.P.C. to order
registration of a criminal offence and /or to direct the officer in charge of
the concerned police station to hold a proper investigation and take all such
necessary steps that may be necessary for ensuring a proper investigation
including monitoring the same or not.
That too, an aggrieved person has
right to claim that the offence he alleges be investigated properly. However,
The Hon'ble Supreme Court held in CBI & another vs. Rajesh Gandhi and
another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be
investigated by a particular agency.
The Classification Of
Magistrates:
Before
discussing the powers of Magistrate under section 156 (3) of Cr.P.C, it is
necessary to understand the categories of Magistrates in our country. The
classification of Magistrates is given in the Code of Criminal Procedure,1973.
It stipulates that in each sessions district, there shall be:
•
Executive Magistrates
•
Judicial Magistrate of Second Class
•
Judicial Magistrate of First Class; and
•
The Chief Judicial Magistrate
Inasmuch as section 156 (3) of
Cr.P.C says that '' Any Magistrate empowered under section 190 may order such
an investigation as above mentioned''., we must understand section 190 of
Cr.P.C.
Let us see the relevant case law
in order to know the power of Magistrate under section 156 (3) of Criminal
Procedure Code,1973.
- It has been held by The Hon'ble
Apex Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63
(vide para 8) that ''no one can insist that an offence be investigated by a
particular agency''. This view was agreed in Sakiri Vasu vs State Of U.P. And
Others.
- In Sakiri Vasu vs State Of U.P.
And Others, it was further 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
also 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.
- Thus in Mohd. Yousuf vs. Smt.
Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed:
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 investigating 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.
- The same view was taken by this
Court in Dilawar Singh vs. State of Delhi JT[1] (vide para 17).
It was also observed in Sakiri
Vasu vs State Of U.P. And Others that even if an FIR has been registered and
even if the police has made the investigation, or is actually making the
investigation, which the aggrieved person feels is not proper, such a person
can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate
is satisfied he can order a proper investigation and take other suitable steps
and pass such order orders as he thinks necessary for ensuring a proper
investigation. All these powers a Magistrate enjoys under Section 156(3)
Cr.P.C.
- Section 156 (3) states:
Any Magistrate empowered under
Section 190 may order such an investigation as above mentioned.
The words as above mentioned
obviously refer to Section 156(1), which contemplates investigation by the
officer in charge of the Police Station.
- Section 156(3) provides for a
check by the Magistrate on the police performing its duties under Chapter XII
Cr.P.C. 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 do the investigation properly, and can
monitor the same.
- The power in the Magistrate to
order further investigation under Section 156(3) is an independent power, and
does not affect the power of the investigating officer to further investigate
the case even after submission of his report vide Section 173(8). Hence the
Magistrate can order re-opening of the investigation even after the police
submits the final report, vide State of Bihar vs. A.C. Saldanna.
- - It was further held that
''Section 156(3) Cr.P.C. 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 F.I.R. 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) Cr.P.C.,
though briefly worded, in our opinion, is very wide and it will include all
such incidental powers as are necessary for ensuring a proper investigation''.-
It was further held that '' It is well-settled that when a power is given to an
authority to do something it includes such incidental or implied powers which
would ensure the proper doing of that thing. In other words, when any power is
expressly granted by the statute, there is impliedly included in the grant,
even without special mention, every power and every control the denial of which
would render the grant itself ineffective. Thus where an Act confers
jurisdiction it impliedly also grants the power of doing all such acts or
employ such means as are essentially necessary to its execution''.
- It was further held that '' The
reason for the rule (doctrine of implied power) is quite apparent. Many matters
of minor details are omitted from legislation. As Crawford observes in his
Statutory Construction (3rd edn. page 267):-
If these details could not be
inserted by implication, the drafting of legislation would be an indeterminable
process and the legislative intent would likely be defeated by a most
insignificant omission ยต. In ascertaining a necessary implication, the Court
simply determines the legislative will and makes it effective. What is
necessarily implied is as much part of the statute as if it were specifically written
therein''.
- In Savitri vs. Govind Singh
Rawat[3] the Hon'ble Supreme Court held that the power conferred on the
Magistrate under Section 125Cr.P.C. to grant maintenance to the wife implies
the power to grant interim maintenance during the pendency of the proceeding,
otherwise she may starve during this period.
- The Hon'ble Supreme Court has
affirmed the doctrine of implied powers are Union of India vs. Paras Laminates
AIR 1991 SC 696, Reserve Bank of India vs. Peerless General Finance and
Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive Officer
& Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu 1996
(11) SCC 23, J.K. Synthetics Ltd. vs. Collector of Central Excise, AIR 1996 SC
3527, State of Karnataka vs. Vishwabharati House Building Co-op Society 2003
(2) SCC 412 (at p. 432); Savitri vs. Govind Singh Rawat, and ITO, Cannanore vs.
M.K. Mohammad Kunhi, AIR 1969 SC 430, etc. On observing the above rulings, in
Sakiri Vasu vs State Of U.P. And Others, the Hon'ble Supreme Court held that
although Section 156(3) is very briefly worded, there is an implied power in
the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal
offence and /or to direct the officer in charge of the concerned police station
to hold a proper investigation and take all such necessary steps that may be
necessary for ensuring a proper investigation including monitoring the same.
Even though these powers have not been expressly mentioned in Section 156(3)
Cr.P.C. And it was held that they are implied in the above provision.
-In Sakiri Vasu vs State Of U.P.
And Others, it was further held that when someone has a grievance that his FIR
has not been registered at the police station and/or a proper investigation is
not being done by the police, he rushes to the High Court to file a writ
petition or a petition under Section 482 Cr.P.C. And further held that the High
Court should not encourage this practice and should ordinarily refuse to
interfere in such matters, and relegate the petitioner to his alternating
remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the
concerned police officers, and if that is of no avail, by approaching the
concerned Magistrate under Section 156(3).
- it was further that ''If a
person has a grievance that his FIR has not been registered by the police
station his first remedy is to approach the Superintendent of Police under
Section 154(3) Cr.P.C. or other police officer referred to in Section 36
Cr.P.C. If despite approaching the Superintendent of Police or the officer
referred to in Section 36 his grievance still persists, then he can approach a
Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by
way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has
a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why
then should writ petitions or Section 482 petitions be entertained when there
are so many alternative remedies?''
-
And also held that '' the Magistrate has very wide powers to direct
registration of an FIR and to ensure a proper investigation, and for this
purpose he can monitor the investigation to ensure that the investigation is
done properly (though he cannot investigate himself). The High Court should
discourage the practice of filing a writ petition or petition under Section 482
Cr.P.C. simply because a person has a grievance that his FIR has not been
registered by the police, or after being registered, proper investigation has
not been done by the police. For this grievance, the remedy lies under Sections
36 and 154(3) before the concerned police officers, and if that is of no avail,
under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal
complaint under Section 200 Cr.P.C. and not by filing a writ petition or a
petition under Section 482 Cr.P.C. It is true that alternative remedy is not an
absolute bar to a writ petition, but it is equally well settled that if there
is an alternative remedy the High Court should not ordinarily interfere.''
