Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of M/S Sas Infratech Pvt. Ltd v. The State of Telangana & Anr., has held that a magistrate cannot be said to have taken cognizance of any offence when he in the exercise of his judicial discretion directs investigation under Section 156(3) of Criminal Procedure Code, 1973 (CrPC).

What was the Background of M/S Sas Infratech Pvt. Ltd v. The State of Telangana & Anr. Case?

• In this case, the Trial Court after the scrutiny of the complaint, documents and the submission made by the learned counsel for the appellant, exercised its judicial discretion by directing the investigation under Section 156(3) of CrPC.
• Thereafter the Respondent (accused), being aggrieved with the same, had preferred the criminal petition before the High Court for the State of Telangana at Hyderabad.
• The High Court set aside the order of the Trial Court and stated that it is made without any proper reasons.
• Thereafter the present appeal has been filed by the appellant before the Supreme Court against the Judgment and order passed by the High Court for the State of Telangana at Hyderabad.
• Allowing the appeal, the Court restored the Trial Court’s order directing a police investigation.

What were the Court’s Observations?

• The bench comprising of Justices Bela M Trivedi and Pankaj Mithal observed that when the Magistrate, in exercise of his judicial discretion directs investigation under Section 156(3) of CrPC, he cannot be said to have taken cognizance of any offence. It is only when the Magistrate, after applying his mind prefers to follow the procedure under Chapter XV of CrPC by resorting to Sections 200, he can be said to have taken cognizance of the offence.

What are the Legal Provisions Involved in it?

Section 156(3) of CrPC

About:

• 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.
• An application under section 156(3) of CrPC discloses the cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the FIR, which is to be investigated by the Investigation Agency, in accordance with law.
• If the information received does not disclose the commission of cognizable offence apparently, but indicates necessity for inquiry, the preliminary inquiry may be conducted in order to ascertain whether the cognizable offence is disclosed or not.
• Any judicial magistrate may order an investigation under Section 156(3) of CrPC before taking notice of the offence.

Essential Elements:

• The power to order police investigation under Section 156 (3) is exercisable at the pre-cognizance stage.
• The power under Section 156 (3) can be invoked by the Magistrate before he takes cognizance of the offence.
• An order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation.

Case Laws

• Har prasad v. State of U.P (2006), the Supreme Court held that if the application under Section 156(3) CrPC. discloses the commission of cognizable offence and at the stage of Section 156(3) CrPC, which is the cognizable stage, once the cognizable offence is disclosed through an application, it was the duty of the concerned Court to order for registration and investigation of the offences, as crime detection and crime prevention are the foremost duty of the police and not of the Court.
• Lalita Kumari v. Govt. of U.P (2014), the Supreme Court held that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
• Priyanka Srivastava and Ors v. State of U.P. and Ors (2015), the Supreme Court held that a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the Magistrate’s jurisdiction.

Section 200 of CrPC

About:

• Section 200 of CrPC deals with the examination of complainant.

Legal Provision:

• A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and by the Magistrate.
• Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) If a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) If the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192.