Can Magistrate Order for Investigation?

The Supreme Court held that Magistrate cannot entertain application for fresh investigation in the event, Complaint was  not supported by affidavit.

BR Gavai and Krishna Murari JJ, Bench of Supreme Court   observed that these applications are filed in daily routine without any personal responsibility with maligned intention to harass the opposite party. Hence, filing of the affidavit along with the application is necessary so that the complainant remains conscious of the same. In the event, the affidavit is in contrast to the actual facts, the complainant shall be prosecuted in accordance with law.

Conditions:

Police authorities, including SP has not lodged FIR

FIR is lodged but the investigation has not been conducted properly

If any person is aggrieved by the fact that FIR has not been registered or investigation has not been done in an appropriate manner and has loopholes, then the first and foremost remedy available is to approach Magistrate under section 156 (3) CrPC instead of approaching the High Court under Article 226.

A person can approach the court through section 200 and 156 (3) if and FIR is not being registered

ABUSE OF SECTION 156 (3) CrPC:

The magistrate has to remain vigilant before passing an order of investigation under section 156 (3) of CrPC. The facts shall be logically and legally observed and deep insight of allegations shall be kept in mind before proceeding for passing any order.

In Priyanka Srivastava and Ors. vs. State of U.P. and Ors. (SC, 19.03.2015 – Criminal Appeal No. 781 of 2012)  it was held by the Apex Court that High Courts shall ensure to be more vigilant and diligent while exercising power under section 156 (3) of CrPC

SECTION 200 & 156 (3) CrPC:

Once a Complaint is filed under section 200 of CrPC Magistrate initiates its process of examination of complainant to dismissal of the complaint. Once a magistrate has taken cognizance of Section 200 of CrPC it shall not be allowed to take a turn at 156 (3) of CrPC.

Further, the Magistrate has complete powers to pass directions for investigation by the Police u/s 156(3) although the Complaint was filed u/s 200 CrPC as a ‘Private Complaint’.

In, the famous case of, “Madhao vs State of Maharashtra, 2013, 5 SCC 615”  following observations were made:

The magistrate has the discretionary power to take cognizance of the complaint. It is not mandatory for the magistrate to take immediate cognizance merely because it is a private complaint.

The magistrate is justified in taking the alternative remedy and passing orders u/s156 (3) if  it deems necessary and fit for the inquiry.

*Parties shall proceed u/s 156(3) in case of cognizable offences and u/s 200 in case of non-cognizable offences.

IN ADDITION TO OTHER SECTIONS:

A Magistrate can order investigation under section 156 (3)of CrPC only at a pre cognizance stage, which means, that, if the Judge has not  taken cognizance under section 190, 200 and 204 of CrPC, and where a magistrate decides to take cognizance, he is not entitled by law to order any investigation under section 156(3) of CrPC.

In the case of Ramdev Food Products V. State of Gujarat, Apex Court held that before ordering any investigation under section 156 (3) application of mind shall be applied.

These powers are exercised specifically in those cases where allegations are serious in nature and evidence is beyond the reach of the complainant or it appears that interrogation is necessary for recovery of articles.

Hence, Section 156(3) CrPC includes all such powers, which are necessary for a proper investigation, including the power to order for FIR/ proper investigation with the magistrate. It includes incidental powers which are required for proper investigation.

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