S 156(3), 155(2) CrPC – Can Magistrate Order Police Investigation In A Non Cognizable Case? [View Point]

Can a Magistrate order police investigation under Section 156(3) CrPC if the complaint alleges only non-cognizable offence?

Section 156(3) CrPC says any Magistrate empowered under section 190 may order such an investigation as above-mentioned.

Section 156 marginal note reads “Police officer’s power to investigate cognizable case.” and Section 156(1) also speaks about police power to investigate any cognizable case. By using the expression “such an investigation as above-mentioned“, what Section 156(3) CrPC actually says is that Magistrate empowered under section 190 may order police to investigate any cognizable case. In this situation, we can say that, a magistrate can only order police investigation only if the complaint alleges a cognizable offence.

In Yogiraj Vasantrao Surve vs State of Maharashtra 2013 All M.R.(Cri.) 2059, the Bombay High Court (Division Bench) considered this very question and held as follows: “The Magistrate before passing an order under Section 156(3) Cr.P.C. ought to satisfy himself/ herself that the averments made in the complaint or petition filed under Section 156(3) disclose commission of cognizable offence and whether the prosecution would lie. Only in such an eventuality, it is permissible for the Magistrate to direct investigation under Section 156(3) Cr.P.C., if he or she deems fit considering the facts and circumstances of the case.”

This interpretation is natural, thanks to the structure of Section 156, the marginal note and the expression “such an investigation as above-mentioned.” The Supreme Court has also held thus in  Tilaknagar Industries Ltd., v. State of A.P. AIR 2012 SC 521: Power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence.

However, we noticed that a contrary view was taken in an early judgment (could not confirm if it stands overruled) by the Punjab and Haryana High Court in Ganesh Dass vs State Of Kerala  1996 CriLJ 612The direction under Section 156(3) may arise in a complaint which pertained to cognizable case or a non-cognizable case. The Magistrate asks the police to undertake the investigation because that helps him to save his time. Investigation by the police in non-cognizable case would otherwise be not possible unless the Magistrate issue such direction.

There is not much reasoning on this point in Ganesh Dass. So we thought of attempting to reason this judgment.

For that, we may have to first read Section 155 CrPC. This provision prohibits police from investigating a non-cognizable case. But in this scenario, it should refer the informant to the Magistrate, who in appropriate cases, can direct the police to investigate this non-cognizable case. So under Section 155(2), the Magistrate clearly is given power to order police investigation in a non cognizable case when the informant approaches him after police ‘refers’ him to Magistrate under Section 155(1) CrPC. If a person who approached police alleging a non-cognizable offence does not get ‘referred’ to Magistrate, he can only file a private complaint. If the Magistrate has powers under Section 155(2) CrPC to order police investigation, then why should Section 156(3) CrPC be interpreted narrowly to deprive him of that power?

We can illustrate this with an example.

A approaches police and shares ‘information’ alleging forgery (Section 465 IPC). Being non-cognizable offence, the police refers him to Magistrate. Magistrate, for some good reason, feels that this has to be investigated by the police and passes such an order under Section 155(2) CrPC. If A had first approached Magistrate with a complaint alleging forgery, the Magistrate could of course proceed by taking cognizance of the offence. But is he powerless to order an investigation (of course for the same ‘good reasons’) in this situation merely because A came to him directly, without being referred by police?

So, according to our considered opinion, Sections 154 – 156 is to be read in this manner.

Section 154

A person can approach police and share information regarding any offence. If it is cognizable offence that is alleged, FIR has to be registered by the police.

Section 155

If it is non-cognizable offence, the informant has to be referred to Magistrate. This provision also states that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Take note that this provision does not explicitly empower Magistrate to order investigation – but only prohibits police investigation in non cognizable cases without order by a Magistrate. So where is this power of Magistrate located? Go to next section.

Section 156

The first clause (Section 156(1)) deals with the situation of police’s power to investigate without order of the magistrate. This is related to Section 154 CrPC (since FIR is to be registered in only cognizable cases)

The third clause (156(3)), in a way, deals with the situation of police requiring an order of Magistrate under Section 155(2). So it is the Section 156(3) enables Magistrate to order police investigation in non-cognizable cases.

This person can also adopt another route. He can approach Magistrate with a complaint alleging a non- cognizable offence. The Magistrate can, in such a situation also, instead of taking cognizance, invoke Section 156(3) CrPC and order police to investigate it the non-cognizable case.

This interpretation is not much accepted mainly due to the presence of mariginal note in Section 156 : Police officer’s power to investigate cognizable case and also the expression “such an investigation as above-mentioned“.

Since Section 155(2) CrPC talks about order of a Magistrate which is pre-requisite for conducting police investigation in a non-cognizable case, we can safely conclude that, if not under S 156(3), a Magistrate can order police investigation in a complaint alleging non-cognizable offence under Section 155(2).

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