Police officer's power to investigate Cognizable Case - CRP 156

SECTION 156(3) 

At the outset, this section provides ways in which a victim can file a complaint when the police officer is not ready to file the complaint under section 154 of CrPC. Section 154 deals with information in cognizable cases and the filing of the FIR. If the police officer is of the view that the offence is not cognizable in nature and no case is made out prima facie, the aggrieved party can approach the Superintendent of Police under section 154 (3). If the Superintendent of police also does not register a complaint being convinced that no cognizable offence is made out prima facie, the victim can approach the magistrate under section 156(3) to get the complaint registered. Once the magistrate registers the case under this section, it has the power under section 190 to direct the police officer to start the investigation and to file FIR regarding the matter. However, it is to be noted that section 156(3) is applied in the pre-cognizance stage. Cognizance is said to have been taken when the magistrate applies his/her judicial mind to the case. Under section 156(3), the magistrate merely hears the grievances of the victim and if the magistrate is convinced that there is a prima facie case, without going into the details, he/she simply orders the police to start the investigation. In such a stage, the magistrate does not apply his/her judicial mind and does not go into the details of the case. When the magistrate takes cognizance of the matter, he/she can inquire into the case themselves under section 202 of CrPC. 

CONCEPTS DISCUSSED THROUGH RELEVANT CASE LAWS

1.         Lalita Kumari vs. State of U.P. and Oth- In this case, the court reiterated the point that it is mandatory for the police officers to file the FIR under section 154 of CrPC. 

2.         State vs. Bhajan Lal- In this case, the court held that any kind of investigation under 156 is completely in the domain of the investigating agency. It is immune from any outside interference of any judicial authority. 

3.         Sakiri Vasu vs. State of U.P. and Another- In this case, the court held that if a person thinks that the police is not registering an FIR under section 154, then the person can approach the SP to address the grievances. If the SP also does not file a report or does not investigate the matter in accordance with the procedure, the aggrieved party can go to the magistrate under section 156(3) to get the FIR filed and the matter investigated properly in accordance with the procedure. Once filed under this section, the magistrate can either direct the police officer to investigate or the magistrate can directly take cognizance of the matter. 

4.         Mohd. Yousuf vs. Smt. Afaq Jahan & another- In this case, the court held that the magistrate under section 156(3) can order the investigation before the magistrate takes cognizance of the matter himself. If he orders investigation without taking cognizance then that means the magistrate has done this in the pre-cognizance stage and has not applied his judicial mind to the case. However, the investigation directed by the magistrate under this section can only be done if the magistrate is of the view that there is not enough material on record to establish a firm case against the accused. But if the magistrate is satisfied with the material on record, then he does not have to order an investigation under section 156(3). Once the magistrate takes cognizance of the matter, three possibilities follow- Firstly, the magistrate is satisfied that the material on record is genuine and there is a cognizable offence. Secondly, the magistrate is not convinced that there is any case made out prima facie and dismisses the complaint. Thirdly, there can be a situation where the magistrate is confused as to whether the case is made out or not and it is only then that the magistrate can take recourse to section 202 of the code and inquire further into the matter or issue the process against the accused.

A point to be noted here is that the investigation under section 156(3) and under section 202 are two of two different kinds and take place at two different stages of an offence. The first investigation order is at the pre-cognizance stage while the second one under section 202 is at the post-cognizance stage. In the post- cognizance stage, the Magistrate applies his judicial mind and goes into the nitty-gritty of the case. Once the magistrate has taken cognizance under section 202, he cannot go back to the pre-cognizance stage. 

5.         Legal Affairs ¬vs¬ Abani Kumar Banerjee- This case defines the meaning of ‘taking cognizance’ and states that a magistrate takes cognizance when he starts to apply his mind to the facts of the case and does not order the police officers to apply their minds. 

6.         Mr. Panchabhai ¬vs¬ State of Maharashtra- In this case, the court held that a petition under section 156(3) is not necessarily a complaint as per the definition of a complaint under section 2(d) of the code. The court also stated that even if the petition under this section is not properly worded, it is not to be taken lightly as long as the facts are clear and a prima facie case of a cognizable offence is made out. Such petitions are maintainable under section 156(3). A magistrate can either direct investigation by the police officer or can take cognizance himself. But the magistrate cannot do both.

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