What if instead of giving directions to the police under Section 156(3) of Cr.P.C. (hereinafter also referred to as the "Code"), the Magistrate takes cognizance of the case and keeps the aspect of investigation at a later stage under Section 202 of the Code? Does it affect the nature of investigation? Is the nature of investigation under the two sections same?
Typically, the answer to the above questions lie on the evidence in possession of the complainant. If the Magistrate observes that complainant himself is in possession of evidence to prove his allegations and allegations are not serious in nature, he may not exercise the power under Section 156 (3) of the Code. and proceed to take cognizance.
Section 156 of the Code reads as under:
"156. Police officer's power to investigate cognizable case.—
(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 power to inquire into or try under the provisions of Chapter XIII.
(2) 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."
The Magistrate may also direct an investigation to be made by a police officer or by such other person as he thinks fit, under Section 202 (1) of the Code, for the purpose of deciding whether or not there is sufficient ground for proceeding. This power is restricted to issuance of process to the accused and not for making out a case.
Section 202 (1) of the Code reads as under:
"202. Postponement of issue of process.—(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,—
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200."
If in the opinion of the Magistrate, there is sufficient ground for proceeding in the matter, the Magistrate may issue summons under Section 204 of the Code which can be read as under:
"204. Issue of process.—(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—
- a summons-case, he shall issue his summons for the attendance of the accused, or
- a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction"
In the case of Skipper Beverages Pvt. Ltd. vs. State 92 (2001) DLT 2171, the Hon'ble High Court of Delhi, while dismissing a petition under Section 482 of the Code directed against an order declining the request of the complainant to make over the complaint to the police under Section 156(3) of the Code for registration of FIR and investigation, the court observed that where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code. It further observed that only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to help the complainant. The police assistance can be taken by a Magistrate even under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs. State of Madhya Pradesh & Ors.2"
As per the above observation of Hon'ble High Court of Delhi, the court may decline order of investigation under Section 156(3) of the Code:
- Where the allegations are not very serious;
- The complainant himself is in possession of evidence to prove his allegations,
In the said case there was a single transaction relating to a cheque allegedly presented fraudulently and the transaction was specific in nature which did not need any further investigation. The Hon'ble High Court while dismissing the petition noted that
- The allegations in regard to the theft of the cheque could be proved by oral or other evidence
- The allegations regarding the forging of the cheque by typing out certain portions therein could also be proved by summoning the original cheque from the bankers and leading required evidence
Hence, it was noted that it was not a case where the police assistance was required for breaking the case and discovering some evidence which the complainant was unable to collect of his own.
However, if a case does not fulfil the above requirements i.e., in a case where the allegations are serious and the complainant is not in possession of evidence to prove his case, an investigation under Section 156 (3) of the Code should be ordered. In such cases, the Magistrate has to assess whether, given the nature of the offence, the complainant is in possession of evidence to prove his case or not. An investigation under Section 202 (1) of the Code, may not be fruitful in such cases.
The nature of inquiry into the investigation under Section 202(1) of the Code & under Section 156 (3) of the Code are completely different which may be summarized below:
- The investigation ordered under Section 156 (3) of the Code is before taking cognizance by the Magistrate and the investigation under Section 202 (1) of after taking cognizance.
- Investigation under Section 202 of the Code is a limited investigation whereas investigation under Section 156 (3) of the Code is a full-fledged investigation.
- In case of investigation under Section 156 (3) of the Code, the police may examine the accused however, investigation under Section 202 of the Code is before issuance of process and for the purpose of deciding whether or not there is sufficient ground for proceeding. The process is issued under Section 204 of the Code under Chapter XVI of the Code when in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he shall issue summons for attendance of accused in a summon case or may issue a warrant in a warrant case.
- Section 202 of the Code confers jurisdiction on the Magistrate to conduct an inquiry only for the purpose of deciding whether sufficient grounds justifying the issue of process are made out.
- Such investigation under Section 202 of the Code is limited in nature and a full-fledged investigation cannot be conducted therein as it is before issuance of summons to the accused.
- The court cannot make out an entire case by exercising power under Section 202 (1) of the Code, otherwise the entire purpose of a police investigation will be defeated.
By
Aditya Dhar, Advocate
Associate Partner, Vaish Associates Advocates
Email: aditya.dhar@vaishlaw.com
Mobile: +91 9971873110
Footnotes
1 https://indiankanoon.org/doc/151904/
2 https://main.sci.gov.in/jonew/judis/17506.pdf
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