Section 154 of Criminal Procedure code states that :
“154. Information in cognizable cases :- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub- section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer shall have all the powers of an officer in charge of the police station in relation to that offence.”
obliges the Officer-in-charge of a Police Station to reduce into writing every information which reaches him regarding the commission of a cognizable offence.
“156. Police Officer’s power to investigate cognizable cases :- (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.”
Sukhwasi v. State of U.P., (Allahabad) (DB) 2008(1) R.C.R.(Criminal) 520 If Police is not registering FIR, Application under Section 156(3) Cr.P.C. making a request to Magistrate to direct the Police to register FIR can be done. Magistrate has discretion to treat the application as complaint.
Criminal Procedure Code, Section 156(3) states the power of Magistrate to direct police to register FIR a question was raised whether the Magistrate is bound to pass an order on each and every application under Section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the F .I. R . and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as `complaint’ or to reject it in suitable cases -
It is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint.
In the case of Ram Babu Gupta v. State of U.P., 2001(3) RCR(Criminal) 698 : [2001(43) ACC 201], it was held by the Full Bench of this Court that the Magistrate is supposed to exercise its discretion while acting on an application under Section 156(3) Cr.P.C., and he is not supposed to pass an order in a routine manner, and he has to apply his mind. This naturally means that the Magistrate has an option of refusing for registration of the first information report. This will appear from the following observations made in para ‘Supra’ Full Bench judgment :
“In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate’s order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter-XV of Cr.P.C. The first question stands answered thus”.
The use of the word ‘Shall’ in Section 154(3) Cr.P.C. and the use of word ‘May’ in Section 156(3) Cr.P.C. should make the intention of the legislation clear. If the legislature intended to close options for the Magistrate, they could have used the word ‘Shall’ as has been done in Section 154(3) Cr.P.C. Instead, use of the word ‘May’ is, therefore, very significant, and gives a very clear indication, that the Magistrate has the discretion in the matter, and can, in appropriate cases, refuse to order registration.
In the case of State of West Bengal v. Union of India, AIR 1963 SC 1241 it was observed by the Supreme Court that the intention of the legislature can best be ascertained “by directing it’s attention not merely to the clauses construed, but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs”.
Let us take an example to make things clear. If somebody wants to file a First Information Report, that the District Judge of the concerned District came to his house at 1.20 O’clock in the day, and fired upon him, with the country made pistol and he ducked and escaped being hurt, and the District Judge is, therefore, liable for an offence under Section 307 Indian Penal Code. The Magistrate knows that the District Judge was in his court room, at that time, and the concerned staff also known that. Is the Magistrate still bound to order registration of a First Information Report because the application discloses a cognizable offence ? It is obvious that the answer has to be in negative and it cannot, therefore, be said that the Magistrate is bound to order registration of a First Information Report in all cases, where a cognizable offence is disclosed.
The next point, which remains for consideration is, the question whether the Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint? It is clear from the judgment of the Supreme Court in the case Suresh Chandra Jain v. State of Madhya Pradesh and another, 2001(1) RCR(Criminal) 335 : AIR 2001 SC 571, that a Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. This will become clear from the reference in the said report to the case of Gopal Das Sindhi and others v. State of Assam and another, AIR 1961 SC 986, in which the following observations were made :
“If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ‘may’ in Section 190 to mean ‘must’. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and ‘Take’ cognizance of a cognizable offence.”
It becomes clear from the said underlined portion that the Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. Hon’ble Mr. Justice Vinod Prasad has also referred to the case of Suresh Chand Jain ‘Supra’ and has extracted the following portion therefrom in order to take a different view : (para 7) :-
“Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a police officer”. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code.”
It has been further held by the Apex Court in the same judgment. “But the significant point to be noticed is when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance.
It has been held by the Apex Court in case of Madhu Bala v. Suresh Kumar and others, 1997(3) RCR(Criminal) 679 : (1997) Supreme Court Cases 476 as follows:-
Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable “case” and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same.”
Thus from the above it is clear that the Magistrate by not directing investigation under Section 156(3) Cr.P.C. gives a long rope to the police to act on it’s whims and caprices and fosters illegality of inaction by the police in registration of information of cognizable offences. It is not permissible for any Magistrate under the code to act contrary to the provisions of the code.”
The Hon’ble Judge has also referred to the case of State of Haryana and others v. Bhajan Lal and others, 1991(1) RCR(Criminal) 383 : JT 1990(4) SC 650 and has extracted the following observations :-
“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon any enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer-in- charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 157 of the Code to investigate, subject to the proviso to Section 157 (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the issuing part of this judgment, we do not propose to deal with those sections in extenso in the present context).
In case an offence incharge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word information in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer-in-charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ‘every complaint’ preferred to an officer-in-charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two codes of 1861 and 1872 was deleted and in that place the word ‘information’ was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 189(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.”
“It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid therefore, officer-in-charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed from, that is to say, to register a case on the basis of such information”.
As in the earlier case, a completely irrational and egregiously erroneous inference has been drawn from the aforesaid observation. The observations relate to the registration of a case by a police officer as will appear from the last paragraph with emphasis and they have nothing to do with the order passed by the Magistrate under Section 156(3) Cr.P.C.
It will not be out of place to note that even for registration of a case by a police officer, the condition is that he must have reason to suspect the commission of an offence as will appear from the following quotations extracted from the case of Ramesh Kumari v. State NCT of Delhi and others, 2006(2) RCR(Criminal) 197 : 2006(1) Apex Criminal 541 : JT 2006(2) SC 548 the following are the words extracted :-
“The true test is whether the information furnished provides a reasons to suspect the commission of an offence which the concerned police officer is empowered under Section 156 of the code to investigate. If it does he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolve of his duty to investigate the case and discover the true facts, if he can.”
In a recent pronouncement, Hon’ble Mr. Justice Shiv Charan Sharma in the case of Chandrika Singh v. State of U.P. and others [2007(58) ACC 777] has held that a Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint. The Hon’ble Judge referred to various cases in his judgment and has come to this conclusion thereafter. It was observed by Shiv Charan, J. as follows:
“In view of this judgment of Full Bench, the Magistrate is fully competent to pass an order to register a case and investigate on an application under Section 156(3) Cr.P.C., all the application under Section 156(3) Cr.P.C. may be treated as complaint and in the circumstance, the Magistrate shall follow the procedure as provided in Chapter XV Cr.P.C. This judgment of Full Bench has not been set aside. Hence, in view of the Apex Court and Full Bench of this Court the Magistrate is fully competent to treat an application under Section 156 Cr.P.C. as a complaint and in the present case the Magistrate passed an order in the circumstances of the case that it may be registered as a complaint case and proceed to record the statement under Sections 200 and 202 Cr.P.C. There appears no illegality and impropriety in the order of the Magistrate.
This controversy must come to an end that an application under Section 156(3) Cr.P.C. can only be treated as an application for passing an order for registration of the case and investigation cannot be treated as a complaint case. The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out. The Magistrate is fully competent to use this judicial direction in the matter. This is wrong notion that if an application has been moved under Section 156(3) Cr.P.C. that the only order can be passed for registration in the matter. The magistrate has got direction under Section 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report under Section 173 Cr.P.C. The Magistrate is also expected to act under some guidelines and it should not be left at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation under Section 156(3) Cr.P.C. In Gulab Chandra Upadhyaya v. State of U.P., (2002 All.L.J. 1225) Hon’ble Single Judge of this Court laid down the guidelines for the guidance of Magistrate while deciding the application under Section 156(3) Cr.P.C. and the guidelines cannot be said against any provision of law or check on the judicial direction of the Magistrate. Even Hon’ble Apex Court also held that the Magistrate has got a direction to pass an order to register the case and investigation under Section 156(3) Cr.P.C. or to treat an application as a complaint case.
In the law laid down by Hon’ble the Apex Court and various judgments of this Court clearly laid down that the Magistrate is not always bound to pass an order to register a case and investigation when application under Section 156(3) Cr.P.C. is moved. It will not be proper to deal with this hypothetical position that if the Magistrate is of opinion that false and frivolous allegation has been made in application than he may reject the application or it is for the investigating officer to decide the truthfulness of the story and if found false then launch prosecution against the applicant. But it is discretion of the Magistrate to be used judiciously while disposing of the application.
Applications under Section 156(3) Cr.P.C. are now coming in torrents. Provisions under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C.
The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint.