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Can magistrate direct investigation under section 156(3) after taking cognisance

Shivendra Pratap Singh

Advocate

29/07/2019

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Can an order be passed to register FIR under section 156 if the case was filed under CRPC 200? I filed a complaint under section 200 of the code after my procedure but later on and another victim moved an application under section 156(3) CrPC for the direction of the investigation. The judicial magistrate had directed the police officer to investigate and report the matter on next hearing.

The next hearing of the case is 6 August 2019. Upon receiving the order of the magistrate, the investigating officer initiated another investigation. I think another victim has filed that application with the motive to delay the investigation and cause irreparable loss to me. Is there any option to take appropriate action against the order of the magistrate?

Sub-section 3 of section 156 crpc empowers the judicial magistrate to direct the police officer to conduct an investigation. When the magistrate orders under section 156(3) crpc, he does so without taking cognisance of the offence. Whereas, under section 200 of the code of criminal procedure, the magistrate passes an order after taking cognisance of the case. Cognisance makes a substantial difference between the order of the magistrate passed under section 156(3) and section 200 CrPC. The cognisance has a significant effect because it infers that the court has applied its mind and begins the trial.

Once the magistrate takes cognisance, he cannot revert one step and disturb the investigation. It is the rule that there should be one investigation in one incident. Therefore, the order of a fresh investigation in the same matter is unacceptable.

In this situation, you should file a revision before the session judge under section 397 of the code of criminal procedure. It is evident in the current scenario to remove the impediment of the orders passed by the magistrate. The order of the second investigation will also cause adverse impact upon the accused.

The magistrate while takes cognisance under section 200 CRPC he satisfies that the ingredients of the offence exist. If he is doubtful regarding the commission of a crime, then he can pass an order under section 202 CRPC instead of invoking section 156(3) CRPC. Section 202 CrPC empowers the magistrate to order a preliminary investigation by a police officer. When the finding of preliminary investigation shows that no offence is made out, then the magistrate can reject the complaint.

However, the magistrate has adequate power under section 202 CRPC then no need to order a fresh investigation under section 156(3). In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. [(2005) 7 SCC 467 : 2005 SCC (Cri) 1697] the supreme court held that after taking cognisance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure.

Cognisance

When the magistrate issues summon or warrant (process) against the accused, then it said that he takes the cognisance. Therefore, after issuing the process under section 204 crpc, he cannot direct the police officer under section 156(3) CRPC. When the magistrate doubts about the commission of offence thereupon without taking cognisance, he can pass an order under section 156(3) CRPC.

Therefore, it is clear that after taking cognisance Magistrate cannot pass an order under section 156(3). When he does not take cognisance consequently, he has the liberty to direct the police officer under section 156(3) to conduct the investigation.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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