Power of Magistrate to direct FIR registration & proper investigation under Section 156(3) of Cr.PC

Power of Magistrate to direct FIR registration & proper investigation under Section 156(3) of Cr.PC

Section 156(3) Cr.PC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police

An FIR activates the mandatory machinery of criminal law in motion and marks commencement of investigation. The registration of an FIR merely involves the process of entering the substance of information relating to commission of cognizable offence in a book kept by the officer in-charge of a particular Police Station as provided under Section 154 of Cr.PC. However, if the police is not registering an FIR, then the aggrieved person can approach the Superintendent of Police under Section 154(3) Cr.P.C., and even if the same does not yield any result, it is open for him to approach the Magistrate under Section 156(3) of Cr.PC. If such an application is filed before the Magistrate, the Magistrate can direct the FIR to be registered and direct proper investigation to be made. If an FIR has been registered and Police has made the investigation or the matter is under investigation, the aggrieved person feels that the way the Police is conducting the investigation is not proper, such person can approach the Magistrate under Section 156(3) of Cr.PC., and if the Magistrate is satisfied, he can take all necessary steps for ensuring a just, fair and proper investigation which is paramount in the criminal justice system.

In Sakiri Vasu v. State of U.P. and Ors. (2008) reported as 2 SCC 409, the Hon'ble Supreme Court nicely explained the scope of 156(3) of Cr.P.C., and held as under:

"14. Section 156(3) states:

156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.PC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

17. In our opinion, Section 156(3) Cr.P.C is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution."

In the case of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage & Ors reported as (2016) 6 SCC 277, the Hon'ble Supreme Court relied upon the judgment of Sakiri Basu (supra) and held that if a person has a grievance that his FIR has not been registered by the police, or having been registered, and proper investigation is not being done, then the remedy of the aggrieved person is not to go to High Court under Article 226 but to approach the Magistrate concerned under Section 156(3) of Cr.PC. If such an application under Section 156(3) of Cr.PC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter.

That very recently the Hon'ble Supreme Court in the case of M. Subramaniam and Another Vs. S. Janaki and Anr reported as 2020 SCC On Line SC 341 set aside the direction of the High Court for registration of FIR and investigation into the matter and directed the complainant to approach the court of the Magistrate. The Hon'ble Supreme Court further held as under:

"6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, in which it is observed.

"2. This Court has held in the Sakiri Vasu v. State of U.P. case, that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) Cr.PC. If such an application under Section 156(3) Cr.PC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation."

The aforesaid power required to be exercised judiciously and not in a mechanical manner. Before passing any order under Section 156(3) of Cr.PC., the Magistrate must use power where the allegations are quite serious or evidence is beyond the reach of the complainant and/or where the assistance of the police is essentially required. In Skipper Beverages Pvt. Ltd. Vs State reported as 2001(59)DRJ 129 it was observed by the Hon'ble Delhi High Court that under Section 156(3) Cr.PC, the Magistrate directed the police to register an FIR only when there is a need of investigation or to call for evidence which the complainant was not able to bring to the Court. The relevant portion of the judgment reads as under:-

"7. ………………….. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations, there should be no need to pass orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to help the complaint.

10. ………………….The section empowers the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainant to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore, a Magistrate, must apply his mind before passing an order under Section 156(3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact."

However, very often it has been noticed that this power under Section 156(3) of Cr.PC, is being misused and application is filed just to harass and vindicate someone or to have illegal and illegitimate gain. In view of the aforesaid, the Hon'ble Supreme Court in the case Priyanka Srivastava Vs State of U.P reported as (2015) 6 SCC 287 clearly mentioned that one has to attach an affidavit whenever he files a complaint under Section 153(3) of Cr.PC, because if tomorrow it is proved that the complainant lodged a complaint on false happening of events then complainant will be held liable for prosecution in accordance with the law. The relevant portion of the aforesaid judgment reads as under:

"31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavor to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

The provision of Section 156(3) of Cr.PC, does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8) of Cr.PC, In State of Bihar v. J.A.C. Saldhana and Ors. reported as (1980) 1 SCC 554, the Hon'ble Supreme Court held that the power of the Magistrate under Section 156(3) of Cr.P.C. to direct further investigation is clearly an independent power and the same can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This position of law was reiterated by the Hon'ble Court in the case of Vinubhai Haribhai Malaviya Vs. State of Gujarat reported as 2019 SCC Online SC 1346.

The police authorities cannot be permitted to conduct an investigation in a tainted and biased manner. Section 156(3) of Cr.PC., includes all such powers that are necessary for ensuring fair and just investigation. The provision of Section 156(3) of Cr.PC. can also be invoked to monitor the investigation by the Magistrate so as to ensure that fair and transparent investigation is conducted. Even an accused can approach the Magistrate court for fair and just investigation. In Babu Bhai Vs, State of Gujarat reported as (2010) 12 SCC 254, the Hon'ble Supreme Court held as under:

"32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that the investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.

45. Not only fair trial but fair investigation is also part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of the rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere.………."

Section 156(3) of Cr.PC are worded in a such fashion that they include all such power with the Magistrate to ensure proper investigation and registration of an FIR. Before seeking relief under section 156(3) of Cr.PC, one has to first exhaust the remedy available under Section 154(1) and 154(3) of the Cr.PC.