Source: High Court of Jammu & Kashmir and Ladakh  

Why in News? 

Recently, Justice Sanjay Dhar held that, once the magistrate records the preliminary statement of the complainant and proceeds to direct an inquiry to ascertain the truth of the matter, it is not open to the magistrate to direct the police to register an FIR. 

• The High Court of Jammu & Kashmir and Ladakh observed this in the matter of Renu Sharma & Anr v. Union Territory of J&K.  

What was the Background of Renu Sharma & Anr v. Union Territory of J&K Case? 

• The petitioners challenged FIR No. 37/2022 registered for offences under Section 461/31 of the Indian Penal Code, 1860 (IPC) at Police Station, Bakshi Nagar, Jammu, based on a complaint filed by Respondent No.2 before the Special Mobile Magistrate (Electricity), Jammu. 
• The complainant alleged that he was a tenant in Flat No.102, Block-D, Kamdhenu Homz, Toph Sherkhania, Jammu since September 2015, paying a monthly rent of Rs. 22,500/- to petitioner Renu Sharma. 
• The complainant claimed that while he was away in April 2022, on returning on March 9, 2022, he discovered that trespass, housebreaking, theft, and burglary had taken place, and the main entrance door lock had been changed. 
• After reviewing CCTV footage, it was alleged that the petitioners illegally entered the premises and changed the lock. 
• The complainant filed an application under Section 156(3) of CrPC seeking registration of an FIR for offences under Sections 453, 454, 456, 457, 379, 380 read with 120-B of IPC. On March 19, 2022, the Trial Magistrate recorded the preliminary statement of the complainant on oath. Instead of directing an immediate FIR registration, the Magistrate ordered an enquiry by SSP Jammu, with a report to be submitted by March 24, 2022. 
• The enquiry was conducted by Dy.SP HQ Jammu, who submitted his report on March 28, 2022, concluding that: 
  • The landlord had not followed proper procedure to regain possession. 
  • The tenant had not regularly paid rent and other dues. 
  • The landlord changed the locks without tenant’s consent. 
• After receiving the enquiry report, the Trial Magistrate, on March 29, 2022, directed the SHO, Police Station Bakshi Nagar, Jammu to register an FIR and instructed SSP Jammu to appoint a Gazetted rank Investigating Officer. 

What were the Court’s Observations? 

• The Court reiterated that once a Magistrate takes cognizance under Chapter XV CrPC, he cannot revert to the pre-cognizance stage and direct FIR registration under Section 156(3) CrPC.  
• The Court held that the order dated 29.03.2022, passed by the trial Magistrate directing the registration of FIR No.37/2022, was legally unsustainable. Consequently, the FIR registered pursuant to this order was also quashed. 
• The Court ruled that once a Magistrate records the preliminary statement of a complainant under Section 200 CrPC, it amounts to taking cognizance of the case. After taking cognizance, the Magistrate cannot revert to the pre-cognizance stage and direct the police to register an FIR under Section 156(3) CrPC. 
• The Court directed that the complaint filed by the respondent-complainant should be treated as a private complaint under Chapter XV of the CrPC and the trial Magistrate must proceed accordingly. 
• The Court ordered the official respondents to produce the case diary regarding FIR No.113/2022 on the next date of hearing (22.04.2025) and directed that any interim relief granted earlier shall continue until then. 

What is Section 156(3) of the Code of Criminal Procedure? 

About 

• This section empowers a Magistrate to direct the police to conduct an investigation into a cognizable offence. 
• Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the same provision.  
• If a person makes an application to the Magistrate and satisfies the Magistrate that an offence has been committed, the Magistrate can order the police to investigate the matter. 
• The Magistrate has the discretion to determine whether a case merits a police investigation based on the facts presented. 
• The initiation of criminal proceedings typically begins with the registration of a First Information Report (FIR) with the police. However, there may be situations where an individual, aggrieved by the commission of an offence, seeks the intervention of the judiciary to ensure a proper and unbiased investigation. 
• Section 156(3) comes into play when a Magistrate, who has the authority to take cognizance of an offense under section 190, is approached with a complaint or an application requesting the initiation of an investigation.  
• The provision empowers the Magistrate to direct the police or any other competent authority to conduct an investigation into the matter. 

Landmark Judgments 

• Johny Joseph v. State of Kerala (1986): 
  • The Kerala HC while considering the quashing of FIR registered through Section 156(3) of CrPC held that “In a case instituted on a police report, the court gets jurisdiction to try the offender, only when the final report is filed, and cognizance taken”. 
• HDFC Securities Ltd. v. State of Maharashtra (2017): 
  • The Supreme Court held that “An order under Section 156(3) of CrPC requiring investigation by Police cannot cause injury of irreparable nature. The stage of cognizance would arise only after the investigation report is filed before the Magistrate”. 
  • Cognizance here includes proceeding under Section 482 of CrPC. 

What is Section 200 of the Code of Criminal Procedure, 1973? 

About 

• Section 200 of the CrPC outlines the procedure for a Magistrate to take cognizance of an offence. 
• Whereas the same provision is covered under Section 223 of BNSS. 
• The section begins with the requirement that any person who desires the Magistrate to take cognizance of an offence must present a written complaint or information. 
• This complaint should be made to a Magistrate having jurisdiction over the matter. 
• The marginal note of Section 200 of the CrPC is “Examination of complainant”. 

Legal Framework 

• Under this section, a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present. 
• And the substance of such examination shall be reduced to writing. 
• And it shall be signed by the complainant and the witnesses, and also by the Magistrate. 

Proviso of Section 200 of the CrPC 

• When the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses.  
• If a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or 
• If the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 of CrPC. 
• Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them. 

Purpose 

• This provision underscores the importance of the complainant's role in criminal proceedings. 
• The examination of the complainant is not a mere formality but serves the purpose of ensuring that there is a prima facie case proceeding with the trial.