Magistrate :- The scheme of the Code of Criminal Procedure, 1973 is such that an Officer Incharge of a Police Station has to initiate investigation as provided in Section 156 or 157 Cr.P.C. on the basis of entry of the first information report, on receiving the information of the commission of a cognizable offence.
From the plain reading of Section 154(1) Cr.PC, it is manifestly clear that if any information disclosing a cognizable offence is made before an officer incharge of a police station satisfying the requirements of section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form to register a case on the basis of information pertaining to cognizable offence.
But when the police officers do not register a case disclosing commission of a cognizable offence and complaint in this regard is made to the Magistrate, then under Section 156(3) Cr.PC, the Magistrate empowered under Section 190 Cr.P.C. ‘may’ order investigation. The expression used herein is ‘may’ and not ‘shall’ or ‘ must’.
The expression ‘shall’ or ‘must’ implies that the provision is mandatory and expression ‘may’ gives discretion to the Magistrate.
In this regard, the following decision of the Apex Court in the matter titled as “Devarapalli Lakshinarayana Reddy vs. V. Narayana Reddy” reported at AIR 1976 SC 1672, is apposite to be referred to, the relevant para of the said judgment is as under:
It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words ” may take cognizance” which in the context in which they occur cannot be equated with ” must take cognizance”. The word “may” gives a discretion to the Magistrate in the matter.
If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) Cr.P.C. will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
This raises the incidental question:
# What is meant by “taking cognizance of an offence” by the Magistrate within the contemplation of Section 190?
This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of section 190 and the caption of Chapter XIV under which Section 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein.
The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate.
Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of section 190(1)(2).
If instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such an issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.
Hon’ble Delhi High Court in the matter titled as “Smt. Meenakshi Anand Sootha Vs. State” reported as 2007(4) JCC 3230 Delhi, has made the following observations:
“It is well settled that under Section 156(3) Cr.P.C., the Magistrate has not to pass the order mechanically and has to apply his judicial mind.
On this point, M/s. Skipper Beverages Pvt Ltd Vs. State reported as 2001 IV AD(Delhi) 625, may be referred to in which it was held:
It is true that Section 156(3) Cr.P.C. of the Code empowers Magistrate to direct the police to register a case and initiate investigation but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. 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 order Section 156(3) of the Code.
This discretion out to be exercise 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 interest of justice demand that the police should step in to help the complainant.
In another matter titled as “Pawan Verma vs. SHO, PS Model Town & Ors.” reported as 2009(2) JCC 1000 Delhi, Hon’ble Delhi High Court has reiterated the legal position as under:
“It is not that in every case merely on asking of the petitioner the Court must direct registration of an FIR unless the Court is satisfied with the preliminary evidence which is to be submitted by the complainant that an FIR must be registered……….”.
In Mohd Salim Vs. State reported as 175(2010) DLT 473, Delhi Hon’ble High Court has held as under:
“The use of the expression ‘may’ in sub section (3) of section 156 of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the police even if the allegations made in the complaint disclose commission of an cognizable offence.
In the facts and circumstances of a given cases, the Magistrate may feel that the matter does not require investigation by the police and can be proved by the complainant himself, without any assistance from the police. In that case, he may, instead of directing investigation by the police, straightaway take cognizance of the alleged offence and proceed under section 200 of the Code by examining the complainant and his witnesses, if any.
Infact, the Magistrate ought to direct investigation by the police only where the assistance of the investigating agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not.
If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the police under section 156(3) of the Code.
Of course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police.
The Magistrate is therefore, not supposed to act merely as a post office and needs to adopt a judicial approach while considering an application seeking investigation by the police”.
Similar view has been taken by Delhi High Court in recent decisions reported at 2014(5) LRC 155 (Del) and 2014(2) JCC 1159.