S.156(3) CrPC | Necessary To Order Police Investigation In Cases Warranting Recovery, When Material Objects In Possession Of Accused: Kerala HC

The Kerala High Court on Monday set aside a Magistrate court’s order under Section 156(3) CrPC, insofar as it did not order Police investigation in an alleged case of theft.

Single Judge Bench of Justice K. Babu observed that in a case where the allegations warrant a recovery under Section 27 of the Evidence Act, it would be necessary to entrust that task to the Police.

"If it is alleged that the documents or other material objects are in the physical possession of the accused or other persons then, in the interest of justice, the Police would be given the task of investigating and recovering them by resorting to the power under the Cr.P.C. In such cases, without ordering an investigation as provided under Section 156(3), the complainant cannot be in a position to retrieve the relevant evidence regarding his allegations. This may lead to putting the complainant handicapped in that he would be failing to prove his case without being able to bring the relevant materials having probative value on record."

The Court was dealing with a plea challenging the Magistrate's order insofar as it ordered enquiry under Section 202 CrPC on a complaint filed by the Petitioner.

The Petitioner who was running a kindergarten in the 30 cents of land that had been leased out to her, was aggrieved by the acts of the landlord and his lawyer in attempting to evict her from the premises.

The petitioner had initially filed a suit before the Munsiff’s Court, Thiruvananthapuram seeking protection against forcible eviction, and an interim order was passed in her favour. However, during the pendency of the suit, the petitioner alleged that the landlord and his lawyer committed theft of her valuables from the property. 

It is following the same that the petitioner had instituted a complaint against the landlord and his lawyer alleging offences under Sections 294(b), 341, 380, 447, 448, 451(ii), 509 and 34 of the IPC. She prayed for referring the complaint to the Police under Section 156(3) of CrPC. The Magistrate however, observed that as the matter was pending consideration before the civil courts, an enquiry under Section 202 CrPC would be necessary. 

It was contended by Advocates Prasun S. and A. Retheesh on behalf of the petitioner that the court below had failed to apply sound judicial reasoning while exercising the discretion under Section 156(3) CrPC. It was pointed out that the expression “may” in Section 156(3) Cr.P.C. indicates the discretion of the Magistrate to direct the complainant to examine witnesses under Sections 200 and 202 Cr.P.C. instead of directing an investigation under Section 156(3).

Explaining the intent of Section 156(3), the Court observed that the discretion implied in the employment of the expression “may” empowering Magistrate to refer complaints for investigation, ought not to be exercised arbitrarily.

"The discretion must be guided by judicial reasoning. The test to be applied, while considering the question whether a complaint is to be referred to the Police for investigation, is the 'need for Police investigation'. The need for police investigation depends upon the nature of the allegations".  

Recently, the Apex Court had also held that while the term 'may' implies that the Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case, the discretion however, cannot be exercised arbitrarily but must be guided by judicial reasoning. 

The Court also took note of the decisions in Sakiri Vasu v. State of U.P. (2008), and Srinivas Gundluri & Ors. v. Sepco Electric Power Construction Corporation & Ors. (2010) in order to ascertain the scope of Section 156(3) Cr.P.C. 

"The declaration of law on the scope of Section 156(3) Cr.P.C. is that the Magistrate has wide powers under Section 156(3), which ought to be exercised for the ends of justice", it observed.

The Court in this case, accordingly found that the order of Magistrate refusing to send the complaint for investigation on the ground that the matter was pending consideration before the civil courts, and an enquiry under Section 202 Cr.P.C. would be necessary, was one that was not in accordance with the settled principles of law.

The Magistrate was thereafter directed to consider the issue afresh as to whether the complaint is to be sent for investigation to the Police under Section 156(3) Cr.P.C.

Public Prosecutor G. Sudheer appeared on behalf of the respondent. 

Case Title: Femeena E. v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 79 

Click Here To Read/Download The Order