S 156(3) & 202 CrPC : Supreme Court Explains Differences Between Powers Of Magistrate At Pre-Cognizance & Post-Cognizance Stages

In a recent judgment(Kailash Vijayvargiya v. Rajlakshmi Chaudhuri and others), the Supreme Court bench comprising Justices MR Shah and Sanjiv Khanna explained the distinction between the power of a Magistrate to direct registration of an FIR and investigation at a pre-cognizance stage under Section 156(3) of the Criminal Procedure Code, 1973 (CrPC), and the proceedings under Chapter XV (Complaints to Magistrate) after the taking of cognizance.

Section 156(3) of CrPC states that a Magistrate who is empowered to take cognizance under Section 190 of Code may order investigation for the cognizable offence.

Whereas, Chapter XV of CrPC lays down the procedure to be followed by the Magistrate when a complaint case is filed.

To explain the differentiation between the procedure and power at both the stages, the Court referred to Ramdev Food Products Private Limited v. State of Gujarat, in which the Apex Court examined the distinction between the powers of the Magistrate to direct the registration of an FIR under Section 156(3) of CrPCand the power of the Magistrate to proceed under Section 202 of CrPC

It was observed that the power under the 156(3) of CrPc is to be exercised, on receiving a complaint or a Police report or information from any person other than the Police officer or upon his own knowledge, “before he takes cognizance under Section 190”.

The Court explained that once the Magistrate takes cognizance, the Magistrate has discretion to take recourse to his powers under Section 202 of CrPC.

The Court highlighted that Section 202 of CrPC provides for postponement of the issue of process and the Magistrate may inquire into the case himself or direct investigation to be made by a Police officer or by such other person as he thinks fit for the purpose of deciding whether or not there are sufficient grounds for proceedings.

Under Section 203, the Magistrate, after considering the statement of the complainant and witnesses (if any) on oath and the result of an inquiry (if any) under Section 202, can dismiss the complaint if he is of the opinion that there is no sufficient ground for proceeding and in every such case briefly record his reasons.

The proviso to Section 202 of CrPC states that no direction for investigation shall be made where a complaint has not been made by a Court, unless the complainant and the witnesses present (if any) are examined on oath under Section 200 of CrPC.

When it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.

However, in such cases, the Magistrate cannot issue direction for investigation of an offence.

Thus, the Magistrate has the power, when a written complaint is made, to issue direction under Section 156(3) of CrPC, but this power is to be exercised before the Magistrate takes cognizance of the offence under Section 190.

“However, in both cases, whether under Section 156(3) or under Section 202 of the Code, the accused person, when the proceedings are pending before the Magistrate, remains unrepresented”,the Court observed.

Under Section 203 of CrPC, the Magistrate, after considering the statement of the complainant and witnesses (if any) on oath and the result of an inquiry (if any) under Section 202, can dismiss the complaint if he is of the opinion that there is no sufficient ground for proceeding and in every such case briefly record his reasons.

On the other hand, If the Magistrate after taking cognizance of the offence, is of the opinion that there are sufficient grounds for proceeding he will issue the process to the accused for appearance as per the procedure and mode specified under Section 204 of the Code.

Process to the accused under Section 204 falls under Chapter XVI of the Code and is issued post the cognizance and inquiry/investigation/evidence recorded in a private complaint in terms of Section 202 of the Code, the Court explained.

Referring to Priyanka Srivastava v. State of Uttar Pradesh, the Court reiterated that to check malevolence and false assertions, it had directed that every application under Section 156(3) should be supported by an affidavit so that the person making an application should be conscious of it and to see that no false allegation is made.

If the affidavit is found to be false, the complainant will be liable for prosecution in accordance with the law, it added.

The Court said that Vigilance is specially required in cases pertaining to fiscal sphere, matrimonial/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay.

However, the position is different at the post- cognizance stage, the Court highlighted.

Under Section 202(at post cognizance stage), the Magistrate can analyse the veracity of the complaint made and appreciate whether there are grounds to proceed further,it said.

Further reference was made to the case of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and Another, in which the Apex Court held that to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon mere perusal of the complaint and the consideration of the complainant's evidence on oath. “The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction”.

The Court referred to Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and Others, stating that the case “is rather succinct”, wherein the Apex Court held that when a complaint is presented before a Magistrate, he has two options. One is to pass an order contemplated by Section 156(3).

The second one is to direct examination of the complainant on oath and the witness present, and proceed further in the manner provided by Section 202. An order under Section 156(3) is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power of investigation under Section 156(1). However, “once the Magistrate has taken cognizance under Section 190 of the Code, he cannot ask for an investigation by the Police”,the Court said.

The Court further explained, after cognizance has been taken, if the Magistrate wants any investigation, “it will be under Section 202”, whose purpose is to ascertain whether there is prima facie case against the person accused of the offence and to prevent issue of process in a false or vexatious complaint intended to harass the person named. Such examination is provided, therefore,to find out whether there is or not sufficient ground for proceeding further.

[Note : It may be noted that a 3-judge bench comprising Justices RF Nariman, Surya Kant and V Ramasubramanian held in Vinubhai Haribhai Malaviya vs. State of Gujarat[2019] that the Magistrate has the power to order further investigation at post-cognizance stage. This judgment also overrruled the precedent in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252, which held that the power under Section 156(3) CrPC can only be exercised at the pre-cognizance stage. The three judge bench judgment in Vinubhai is not seen mentioned by the two-judge bench in Kailash Vijayvargiya]

Case Title:Kailash Vijayvargiya v. Rajlakshmi Chaudhuri and others.

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