A single judge bench of the Madhya Pradesh High Court delineated the difference between application of 156(3) and 202 CrPC.

Date of Judgement: 5 December  2012

Composition of the bench: Single judge bench of Hon’ble Mr. Justice G.D. Saxena

Facts in brief

The petitioners in the instant case were public servants and posted in the Women and Child Welfare Department in district Bhind. 

The complainant was the Secretary of Oshika Mahila Kalyan Mandal and filed a complaint that the petitioners had forged documents to receive a grant of Rs. 3,90,000/- which was issued by the State Government. 

On receipt of the complaint the trial Judge by an order dated 6th September, 2011 directed the State Economic Wing Gwalior to make an inquiry into the complaint.

In compliance with the direction of the Court, the State Economic Wing Gwalior submitted a detailed report. 

Thereafter, the trial Judge by an order dated 7th April, 2012 again directed that since the offences as alleged were cognizable, therefore, on the basis of the complaint filed before the Court, it directed that an FIR be lodged against the named accused.

Issue: Whether the Special Judge after passing an order either under section 156(3) or section 202(1) of Criminal Procedure Code for inquiry and submission of the report by the Investigating Agency before him again  issue order for lodging the F.I.R and registration of the crime to investigate the matter to the same agency?

Judgement

The High Court adverted to an earlier  judgement. In Mona Panwar v. High Court of Judicature at Allahabad the Court had dealt with the scope of s. 156(3) in considerable detail, it opined-

• An order made under sub-section (3) of section 156 of the Code is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power of investigation under section 156(1). 

• A Magistrate can under section 190 of the Code before taking cognizance ask for investigation by the police under section 156(3) of the Code. 

• If after cognizance has been taken and the Magistrate wants any investigation, it will be under section 202 of the Code.

The Court further expounded on the meaning of the phrase “taking cognizance” and opined that it does not involve action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. 

Furthermore, the Magistrate must have done so for the purpose of proceeding under section 200 and the provisions following that section. However, when the Magistrate had applied his mind only for ordering an investigation under section 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence.

The objective of an examination of the complainant and his witnesses as mentioned in section 200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious.

The practice which has developed over the years is that examination of the complainant and his witnesses under section 200 of the Code is directed by the Magistrate only when a case is found to be a serious one and not as a matter of routine course. 

If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in section 200 of the Code.

In Rameshbhai Pandurao Hedau v. State of Gujarat, the Court held that the only difference in power to direct an investigation to the police authorities under section 156(3), and under section 202 of CrPC is the stage at which the said powers may be invoked. 

The power under section 156(3) is at the pre-cognizance stage while the power to direct a similar investigation under section 202 is at the post-cognizance stage.

Ratio Decidendi 

In the present case, the factual matrix made it clear that the trial Judge at preliminary stage under section 156(3) had directed that the complaint be sent for inquiry to the Police Superintendent of the Economic Offences Wing,  Gwalior. 

On receipt of the report the trial Court issued an order again to the effect of filing of an FIR under s. 156(3)  

This direction, the Hon’ble High Court opined, was against the law because once the power conferred under section 156(3) of Criminal Procedure Code is exercised, the same could not be re-exercised after receiving the report from the Investigating Agency. 

In opinion of the Learned Judge, the trial trial Judge ought to have proceeded with the procedure after recording the statements of complainant and witnesses and after considering the documents filed with the complaint and also on due consideration of the report filed by the EOW Gwalior, as laid down in Chapter XV of the Code, he could have passed the order either under section 203 or section 204, Criminal Procedure Code. 

Therefore, subsequent order given by him for investigation after lodging the F.I.R by the same investigating agency, which had already submitted the report in terms of the directions contemplated in law was deemed to be repugnant with the provisions as laid down above.

The petition was thus allowed and the trial Court was advised to observe strict adherence to the provisions of law.