S 156(3) CrPC - Magistrate Should Order Police Investigation When Cognizable Offence Is Prima Facie Found, Especially In Sexual Offences: Supreme Court

In an important judgment, the Supreme Court has held that a Judicial Magistrate has the duty to order police investigation under Section 156(3) of the Code of Criminal Procedure when the complaint prima facie shows the commission of cognizable offence and the facts indicate the need for a police investigation.

Though Section 156(3) CrPC uses the word "may", giving discretion to the Magistrate to order police investigation, the Court held that such discretion must be exercised in a judicious manner.

"It is true that the use of the word "may" implies that the Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning", the Court held(XYZ versus State of Madhya Pradesh).

"Therefore, in such cases, where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate's notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate", the Court further stated. 

A bench comprising Justices DY Chandrachud and JB Pardiwala further held that in sexual offences, the Courts should press upon police investigation.

"Especially in cases alleging sexual harassment, sexual assault or any similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. It may not be possible to arrive at the truth of the matter in the absence of such evidence. The complainant would then be required to prove her case without being able to bring relevant evidence (which is potentially of great probative value) on record, which would be unjust"

Background facts

In this case, the woman had made a complaint before the Police that the then Vice-Chancellor of the Institute where she was working had touched her inappropriately. After no action was taken, she also filed a complaint to the Superintendent of Police twice. However, no action was still taken and she moved to the Judicial Magistrate First Class, Gwalior under Section 156(3) of the CrPC. The JMFC directed the police to file a status report, however, the proceedings before the JMFC were delayed due to the onset of the Covid-19 pandemic. Eventually, the JMFC concluded that, prima facie, "occurrence of the offence by the accused persons" was "shown". JMFC continued treating the allegations as a complaint and provided liberty to the complainant to examine witnesses under Sections 200 and 202 CrPC. This order of the JMFC was questioned by the appellant under Section 482 CrPC. However, the High Court dismissed the application on the ground that the JMFC was not under an obligation to direct the police to register the FIR and the use of the expression "may" in Section 156(3) CrPC indicated that the JMFC had the discretion to direct the complainant to examine witnesses under Section 200 and 202 CrPC.

Supreme Court's analysis

The Court held that in cases such as the present, wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation.

Referring to n Lalita Kumari v Government of Uttar Pradesh , the bench observed that there is a duty of police to register an FIR whenever a cognizable offence is made out in a complaint.

"Whether or not the offence complained of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence is made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR. The law in this regard is clear - police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence.", the court observed.

The bench also observed that, especially in cases of sexual harassment or violence, the police should enable the smooth registration of an FIR. It said that the police's inaction in this case is most unfortunate. The bench observed:

It is every police officer's bounden duty to carry out his or her functions in a public-spirited manner. The police must be cognizant of the fact that they are usually the first point of contact for a victim of a crime or a complainant. They must abide by the law and enable the smooth registration of an FIR. Needless to say, they must treat all members of the public in a fair and impartial manner. This is all the more essential in cases of sexual harassment or violence, where victims (who are usually women) face great societal stigma when they attempt to file a complaint. It is no secret that women's families often do not approve of initiating criminal proceedings in cases of sexual harassment. Various quarters of society attempt to persuade the survivor not to register a complaint or initiate other formal proceedings, and they often succeed. Finally, visiting the police station and interacting with police officers can be an intimidating experience for many. This discomfort is often compounded if the reason for visiting the police station is to complain of a sexual offence...

... This being the case, the police ought not to create yet another obstacle by declining to register an FIR despite receiving a complaint regarding sexual harassment. Rather, they should put the complainant at ease and try to create an atmosphere free from fear. They ought to be sensitive to her mental state and the fact that she may have recently been subjected to a traumatic experience.

Allowing the appeal, the bench directed the JMFC Gwalior to order an investigation by the police under Section 156(3) CrPC. The investigation shall be supervised by a woman officer not below the rank of Superintendent of Police to be nominated by the DIG of the zone concerned, the bench directed.

The bench also issued directions to ensure that trials in sexual harassment cases are held in a sensitive manner protecting the dignity and privacy of the victim. Separate report on that aspect may be read here.

Hold In-Camera Trial In All Sexual Harassment Cases, Apart From Rape Cases; Disallow Questions On Sexual History : Supreme Court To Trial Courts

Headnotes

Trial in cases of Sexual Harassment/Violence - The importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner reiterated- Guidelines: a . Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment / violence; b. Allowing the installation of a screen to ensure that the aggrieved woman does not have to see the accused while testifying or in the alternative, directing the accused to leave the room while the aggrieved woman's testimony is being recorded; c. Ensuring that the counsel for the accused conducts the cross-examination of the aggrieved woman in a respectful fashion and without asking inappropriate questions, especially regarding the sexual history of the aggrieved woman. Cross-examination may also be conducted such that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman; d. Completing cross-examination in one sitting, as far as possible. (Para 30-35)

Code of Criminal Procedure, 1973 ; Section 154 - FIR -Police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence - Whether or not the offence complained of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence is made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR -  (Para 18)

Code of Criminal Procedure, 1973 ; Section 156(3) - Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning - Where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate's notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate. In cases wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation. (Para 24)

Code of Criminal Procedure, 1973 ; Section 156(3) - In cases alleging sexual harassment, sexual assault or any similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. (Para 25)