Even on a (private) complaint the Magistrate before taking cognizance is empowered to forward the complaint for investigation under section 156(3) Cr.P.C

Appeal

Appeal against the quash order

3. The instant criminal appeals, at the instance of the complainant, seek to assail the Final Judgments and Orders dated 18.11.2021 in CRLP No.100651/2018 [2021:KHC-D:90] (hereinafter referred to as the ‘Second Impugned Order’) and dated 24.07.2019 in CRLP No.100549/2018 [2019:KHC-D:5908] (hereinafter referred to as the ‘First Impugned Order’) passed by two learned Single Judges of the High Court of Karnataka, Bench at Dharwad (hereinafter referred to as the ‘High Court’), whereby the High Court allowed the accused-private respondents’ petitions under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’), consequently quashing the Order dated 18.01.2018 passed by the learned Judicial Magistrate First Class-III Court, Belagavi (hereinafter referred to as the ‘JMFC’), insofar as it related to the respective accused-private respondents.

Brief facts

4. The appellant-complainant lodged a private complaint viz. PCR No.1/2018 before the JMFC against the private respondents under Sections 120B, 201, 419, 471, 468 and 420 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’).

Private complaint filed and JMFC referred the matter for investigation u/s 156(3) Cr.P.C

10. The appellant later filed a private complaint before the JMFC. The JMFC vide Order dated 18.01.2018 felt that the matter was to be referred for investigation under Section 156(3) of the Code. The JMFC referred the case for investigation to the Khade Bazar Police Station. Accordingly, a First Information Report was registered against accused nos.1 to 7 as Crime No.12/2018 (hereinafter referred to as the ‘FIR’) for offences punishable under Sections 120B, 201, 419, 471, 468 and 420 of the IPC, and investigation was undertaken. The learned JMFC in the Order dated 18.01.2018 recorded ‘The complainant has complied with the directions issued by the Hon’ble Supreme Court in Priyanka Shrivastava vs. State of UP in (2015) 6 SCC 287.’

Hon’ble High Court orders

11. The High Court, in the First Impugned Order, observed as under, inter alia:

‘10. … Without mentioning anything the learned Magistrate has passed the order for further investigation though no law contemplated the learned Magistrate to go for further investigation. If at all any further investigation has to be made that will be only after if any final report is filed by the investigating agency and if there are any deficiencies and if any request is made by the police under Section 173(8) Cr.P.C, then under such circumstances the Court can exercise. But when the private complaint has been filed and directly the court has passed for further investigation without any justifiable reasons in that light, the said order itself appears to be not justifiable since the court has not applied its mind and it is not sustainable in the eye of law.’ (emphasis supplied)

12. The High Court, in the Second Impugned Order, recorded, inter alia, as below: ‘24. … Even though, respondent No.2 filed a suit before the civil court seeking declaration of his right over the property claiming to be the owner of the property on the basis of the oral gift deed and that the registered sale deed executed by his father in favour of accused No.1 is not binding on him, admittedly, the said suit filed in O.S.No.43/2009 came to be dismissed and it is held that registered sale deed is executed by the father of respondent No.2 conveying the title over the property in favour of accused Nos.1, and respondent No.2 is not entitled for the declaration as sought for. Challenging the said judgment and decree, RFA No.4095/2013 is filed before this court, which is still pending for consideration. Even though status-quo order was passed in respect of the title and possession of the property, it is made clear by this court that it is only to protect the title and possession of accused No.1, who is held to be in possession over the schedule property. Even though the said finding given by the trial court is under challenge before this court, the fact remains that there are no prima facie materials to contend that the possession of the property was handed over in favour of respondent No.2 by his father at any time. …

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27. It is also pertinent to note that accused No.2 and 5 to 7 who are petitioners herein, are not parties either in O.S.No.43/2009 or in RFA No.4095/2013 before this court. Under such circumstances, respondent No.2 should have made clear about the role played by these petitioners in concocting the document as contented by him and producing the same before the court to take advantage of the same in the first information.’

Analysis, reasoning and conclusion

Question of laws preferred

34. The questions for consideration may be summed up as: (i) whether the direction for investigation to the police issued by the JMFC under Section 156(3) of the Code, which was quashed by the Impugned Orders, is justified based on the facts and circumstances of the cases, and; (ii) whether the JMFC had sufficient material before it so as to justify the course of action of referring the matter for investigation to the police invoking power under Section 156(3) of the Code, resulting in the institution of the FIR.

Even on a complaint the Magistrate before taking cognizance can forward the complaint for investigation under section 156(3) Cr.P.C

37. At this juncture, it would be apposite to refer to the position of law enunciated in Madhao v State of Maharashtra, (2013) 5 SCC 615, wherein it was held that:

‘18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the precognizance stage and avail of Section 156(3).’ (emphasis supplied)

38. In the background of the factual position, the JMFC’s Order dated 18.01.2018 cannot be faulted. Enough material is available to justify a full-fledged investigation by the police. The JMFC, to our mind, had rightly referred the matter for investigation to the police since a prima facie case stood made out against the accused, in view of the material that was available with the JMFC. In Ramdev Food Products Private Limited v State of Gujarat, (2015) 6 SCC 439, three learned Judges of this Court opined:

‘13. We may first deal with the question as to whether the Magistrate ought to have proceeded under Section 156(3) or was justified in proceeding under Section 202(1) and what are the parameters for exercise of power under the two provisions.

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22. Thus, we answer the first question by holding that:

22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.

22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed”. Category of cases falling under para 120.6 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524] may fall under Section 202.

22.3. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.

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38. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252: 1976 SCC (Cri) 380], National Bank of Oman v. Barakara Abdul Aziz [(2013) 2 SCC 488: (2013) 2 SCC (Cri) 731], Madhao v. State of Maharashtra [(2013) 5 SCC 615: (2013) 4 SCC (Cri) 141], Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185: (2010) 2 SCC (Cri) 801], the scheme of Sections 156(3) and 202 has been discussed. It was observed that power under Section 156(3) can be invoked by the Magistrate before taking cognizance and was in the nature of preemptory reminder or intimation to the police to exercise its plenary power of investigation beginning with Section 156 and ending with report or charge-sheet under Section 173. On the other hand, Section 202 applies at post-cognizance stage and the direction for investigation was for the purpose of deciding whether there was sufficient ground to proceed.’ (emphasis supplied)   

39. Ramdev (supra) was noticed in Cardinal Mar George Alencherry v State of Kerala, (2023) 18 SCC 730. The High Court, especially vide the First Impugned Order, seems to have been unduly swayed by the usage of the term ‘further’ by the JMFC. The relevant extract from the First Impugned Order has already been quoted hereinabove. It would be in the fitness of things to note the JMFC’s Order dated 18.01.2018: ‘…

On perusal of the private complaint, it is noticed that the aforesaid case needs to be further investigated by the police. Hence, this Court feels that the aforesaid case needs to be referred under Sec.156(3) of Cr.P.C. Hence, the above matter is referred to Khade Bazar P.S. for investigation under Sec.156(3) of Cr.P.C. (emphasis supplied)

The word ‘further’ used in the order was not in the context of section 173(8) Cr.P.C

40. The afore-extract leaves no room of doubt that the JMFC had referred the matter to police under Section 156(3) of the Code, and the usage of ‘further’ was not in the context of Section 173(8) of the Code, which fine distinction the First Impugned Order has glossed over. The case(s) at hand, in our considered view, demonstrate material showing the commission of cognizable offence(s), on the face of it, which would merit police investigation. Therefore, interdiction of the Impugned Orders is necessitated.

Conclusion

High Court orders set aside and original order restored

43. Thus, on an overall circumspection of the facts and circumstances of the case, the material on record and the submissions made by learned counsel for the parties, the First and Second Impugned Orders dated 24.07.2019 and 18.11.2021 are set aside. FIR Crime No.12 of 2018, Khade Bazar Police Station stands restored. The police is directed to investigate the case expeditiously in accordance with law. It goes without saying that the private parties shall be at liberty to produce material to indicate their defence(s)/position during the police investigation as also before the Court concerned, in accordance with law, at the appropriate stage.

44. Before parting, it is made clear that the observations made in this Judgment are only for the purposes of considering the issue(s) before us and shall neither prejudice nor aid the parties in any proceedings pending inter-se. The appeals stand allowed as indicated above. Pending applications stand closed. In the circumstances, however, we propose no order as to costs.

High Court judgments that are challenged in the appeal

1. First Impugned Order: Final Judgment and Order dated 24.07.2019 in CRLP No.100549/2018 [2019:KHC-D:5908].
2. Second Impugned Order: Final Judgment and Order dated 18.11.2021 in CRLP No.100651/2018 [2021:KHC-D:90].

Judgments cited or quoted or relied

1. Priyanka Shrivastava vs. State of UP – Citation: (2015) 6 SCC 287
2. Samee Khan v Bindu Khan – Citation: (1998) 7 SCC 59
3. Lavanya C v Vittal Gurudas Pai – Citation: 2025 SCC OnLine SC 499
4. Madhao v State of Maharashtra – Citation: (2013) 5 SCC 615
5. Ramdev Food Products Private Limited v State of Gujarat – Citation: (2015) 6 SCC 439
6. Lalita Kumari v. State of U.P – Citation: (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524
7. Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy – Citation: (1976) 3 SCC 252: 1976 SCC (Cri) 380 ⁹
8. National Bank of Oman v. Barakara Abdul Aziz – Citation: (2013) 2 SCC 488: (2013) 2 SCC (Cri) 731 ¹⁰
9. Rameshbhai Pandurao Hedau v. State of Gujarat – Citation: (2010) 4 SCC 185: (2010) 2 SCC (Cri) 801
10. Cardinal Mar George Alencherry v State of Kerala – Citation: (2023) 18 SCC 730
11. Neeharika Infrastructure Pvt. Ltd. v State of Maharashtra – Citation: (2021) 19 SCC 401

Acts and Sections involved

1. Indian Penal Code, 1860 (IPC)

These sections represent the offenses alleged in the private complaint (PCR No.1/2018)

1. Section 120B (Criminal Conspiracy)
2. Section 201 (Causing disappearance of evidence of offense, or giving false information to screen offender)
3. Section 419 (Punishment for cheating by personation)
4. Section 471 (Using as genuine a forged document or electronic record)
5. Section 468 (Forgery for purpose of cheating)
6. Section 420 (Cheating and dishonestly inducing delivery of property)

2. Code of Criminal Procedure, 1973 (Cr.P.C.)

These sections relate to the procedural aspects and the inherent powers of the courts:

1. Section 156(3) (Police officer’s power to investigate cognizable case, specifically the Magistrate’s order for investigation)
2. Section 482 (Saving of inherent powers of High Court)
3. Section 460 (Irregularities which do not vitiate proceedings)
4. Section 173(8) (Power to order further investigation)
5. Section 190 (Cognizance of offences by Magistrates)
6. Section 202 (Postponement of issue of process / Inquiry or investigation by Magistrate)

3. Code of Civil Procedure, 1908 (CPC)

These sections relate to the underlying civil suit and the application for contempt/stay:

1. Order XLI Rule 5 (Stay by Appellate Court)
2. Order XXXIX Rule 2-A (Consequence of disobedience or breach of injunction)
3. Section 151 (Saving of inherent powers of Court)

Party

Sadiq B. Hanchinmani vs. The State of Karnataka & Ors - Criminal Appeal No. 4728 of 2025 [@ Special Leave Petition (Criminal) No.11336 of 2022] (and connected matters) - 2025 INSC 1282 - November 04, 2025 - Hon’ble Mr. Justice Pankaj Mithal, J. and Hon’ble Mr. Justice Ahsanuddin Amanullah, J.