POWERS OF MAGISTRATE UNDER SECTION 156 (3) Cr.P.C & 145 Cr.P.C.
Powers of Magistrate under section 156 (3) Cr.P.C.
Generally, the criminal proceedings are instituted by the registration of First information Report (FIR). An investigation is done post FIR. However, when no proper investigation is conducted despite the registration of FIR, a Magistrate as per section 156(3) of the Criminal Procedure Code, 1973 is empowered to order the investigation.
Section 156(3) attempts to define powers briefly. It does not expressly and exhaustively provides for the powers and its extent.
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Section 156(3) of Cr.P.C.
When the informant approaches the Magistrate with an oral or written complaint, Magistrate has two alternative’ courses open to him and can follow either of them at his option. Magistrate may record the statement of the complainant on oath under S.200, Cr. P. C. and then pass orders as required under section 202, Cr.P.C., as deemed fit by him, or he may simply direct the police to register the case and investigate the same under section 156(3) Cr.P.C. Once the Magistrate had recorded the statement of the complainant on oath and taken cognizance of the case then the course as required under S.156(3), Cr.P.C., is not available to him .
If the police refused to register the F.I.R. then the aggrieved party has the following adequate remedy under the Criminal Procedure Code .
- By approaching the Sessions Judge, Ex-Officio justice of peace for exercise of powers under section 22-(A)(6), Cr.P.C.
- By approaching the Magistrate for exercise of power under section 156(3), Cr.P.C. of Chapter XIV, Cr.P.C.
- By filing a direct complaint under section 200, Cr.P.C. of Chapter XVI, Cr.P.C
It is further observed in the case of Muhammad Ali supra;
If the Magistrate, authorized to take cognizance upon information received from any other person than a police officer or upon the Magistrate’s own knowledge or suspicion then the Magistrate under section 156(3), Cr.P.C. can send such report to the officer in charge of the police station for registration and investigation of the matter.
From the above position, it is clear that the Magistrate authorised to take cognizance, is empowered under section 156(3), Cr.P.C., to direct the incharge of the police station to register the case and investigate the same.
The section 156(3), Cr.P.C. has been subjected to interpretation by the Pakistan and Indian Courts in which they have held that the Magistrate can only pass orders under section 156(3), Cr.P.C. before taking the cognizance/recording the statement of the complainant on oath and once he had recorded the statement of complainant then the provision would not be applicable but the provisions of Chapter XVI, Cr.P.C. viz. sections 202 and 203 would be applicable.
In a case reported in AIR 1956 Cal. 76, a complaint was made to the Magistrate who without recording the statement of the complainant on oath sent the complainant to the police for investigation and submission of challan after treating the complaint as F.I.R. by passing the following order:
“Heard petition. O/C section ‘ O’ to treat the petition as F.I.R., and take up investigation, and if the facts as alleged appear to be correct, take cognizance, arrest the accused persons and submit challan in the usual course. “
Thereafter the police registered the case and after investigation submitted the challan in the Court. The proceedings were challenged in the Court and the matter went to the High Court. The High Court did not quash the proceedings by observing that the challan was validly submitted by the police on the above mentioned order of the Magistrate, which was validly passed by him under section 156(3), Cr.P.C.
In another case reported in AIR 1959 Assam 231 the Magistrate without examining the complainant on oath, took no steps under Chapter XVI of the Cr.P.C. sent the complaint to the police with direction to investigate the matter and submit the charge ¬sheet if warranted by 23rd August, 1927. This order was found validly passed by the Magistrate under section 156(3), Cr.P.C.
In another case Munawar Khan Vs. Muhammad Ishaque held that; the Magistrate without taking cognizance/recording the statement of the complainant on oath sent the complaint to the police for investigation under section 156(3), Cr.P.C. the police after investigation submitted the challan in the Court. The matter went to the High Court. It was held as under;
“It follows, therefore, that where a learned Magistrate, as in the present case, has not taken cognizance of a private complaint by applying his mind to it for decision and has not recorded the statement of the complainant or his witnesses, it is open to him to send the case to the police for registration of a case, investigating the same and filing a challan if there is enough evidence.”
The order of the Magistrate was found to be validly passed under section 156(3), Cr.P.C.
In a case Munir Ahmad Vs. State , held that the Magistrate without taking cognizance/recording the statement of the complainant on oath passed following order;
“S.H.O. Rangpur please register the case and investigate and submit the challan, if necessary.”
The order was found to be validly passed by the Magistrate under section 156(3), Cr.P.C.
Where a Magistrate receives a complaint disclosing commission of cognizable offence committed in his area, the Magistrate is empowered to order investigation of the case. Such order of Magistrate may include direction to register a case and investigate the same in accordance with law .
The word ‘Magistrate’ mentioned in section 156(3) means Judicial Magistrate who is empowered to take cognizance of a cognizable offence and not Executive Magistrate . A Magistrate is empowered to order the investigation for the offence only when he is empowered to take the cognizance of such offence under section 190 of the Code. The power under section 156(3) of the Code can be exercised by the Magistrate even before he takes the cognizance provided that the complaint discloses the commission of a cognizable offence. Thus, where the complaint did not disclose commission of a cognizable offence, the order directing investigation was held liable to be quashed .
The power conferred under section 156(3) can be invoked by the Magistrate before he takes the cognizance of the offence. It was held in the Kanak Singh v. Balabhadra Singh , that very fact that the Magistrate passed the order for investigation under the sub-section without examining the complainant by itself is sufficient to hold that the Magistrate has not taken cognizance of the offence but the order was held not to be illegal and that the High Court could not prevent the police from investigating the offence under section 482.
The power conferred by section 156(3) is an independent power and does not limit the power of any investigating officer.
The Supreme Court in Madhu Bala Vs. Suresh Kumar , held that it is not illegal by the Magistrate to order to the police to register the case and investigate it provided that the complaint filed before the Magistrate discloses the commission of any cognizable offence. In Mohd. Yousuf Vs. Smt. Afaq Jahan , the Court held that 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. While exercising this power the Magistrate should apply his mind to the allegations in the complaint. The order of Magistrate has necessarily to indicate the application of mind .
In Union of India v. Prakash P. Hinduja and another , it has been observed that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same though he should not himself investigate.
However, a Magistrate is only empowered to order the investigation by police and not by the Central Bureau of Investigation. In CBI v. State of Rajasthan & ors . It was held by the Supreme Court that the Magistrate cannot order an investigation by the CBI. In Nareshbhai Manibhai Patel v. State Of Gujarat And Ors , it was held that under Section 156(3) of Cr.P.C., a Magistrate cannot direct C.B.I. to conduct an enquiry. A Court while exercising revisional powers put itself into the position of the Court passing the impugned order and then examines the question and revises the order if need be. Therefore, while exercising revisional powers this Court would not be competent to order an investigation through C.B.I. or C.I.D., as is prayed for by the revisioner.
Powers of Magistrate under section 145 Cr.P.C.
In the proceedings under section 145, Cr.P.C., the Magistrate has to take cognizance on an application/complaint by a party/or report by the police on his satisfaction of imminent danger of breach of peace, and if there is sufficient material, he may pass preliminary orders in terms of section 145(4), Cr.P.C., in case, however, if the material is not sufficient requiring him to pass an interim order, he may hold inquiry as provided under section 145, Cr.P.C. by examining the parties and pass final order restoring possession to a party which was dispossessed two months prior to its wrongful dispossession under section 145(6), Cr.P.C. and or in case, if after inquiry, the material brought on record is not sufficient to record a finding over possession, he may order attachment of the property in terms of section 146(1), Cr.P.C.
The section 145, Cr.P.C. does not curtail the powers of the Magistrate to pass final order under section 145(6), Cr.P.C. after holding inquiry, in case of his failure to pass preliminary order under section 145(4), Cr.P.C. within two months.
The only restriction imposed is that the party to whom possession is restored must have been dispossessed within two months of the complaint. The Magistrate while conducting inquiry is not competent to decide either title of the property or its right to possession. Section 145, Cr.P.C. only empowers the Magistrate to make enquiry under section 145, Cr.P.C. to regulate possession of the property in dispute for the time being to avert apprehension of breach of peace .
Author : Naeem Akhter
Author is Civil Judge & Judicial Magistrate / Research Officer, SCRC.