# Section 154 Cr.P.C: Police has no other option except to register fir if cognizable offence found and magistrate must direct investigation if cognizable offence found in the complaint

- Link: https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/
- Published: 2023-05-10T15:51:04+00:00
- Author: Ramprakash Rajagopal

Contents

 * [Issue raised in the present appeal](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#issue-raised-in-the-present-appeal)
 * [Relevant legal provisions of chapter XII of the Cr.P.C, 1973](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#relevant-legal-provisions-of-chapter-xii-of-the-crpc-1973)
 * [How to investigate?](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#how-to-investigate)
 * [Mandatory nature of section 154(1) of the Code](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#mandatory-nature-of-section-1541-of-the-code)
 * [Police officer has power to foreclose the investigation](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#police-officer-has-power-to-foreclose-the-investigation)
 * [Powers of magistrate during investigation](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#powers-of-magistrate-during-investigation)
 * [Magistrate must direct investigation u/s 156 (3) Cr.P.C and may also direct for preliminary enquiry](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#magistrate-must-direct-investigation-us-156-3-crpc-and-may-also-direct-for-preliminary-enquiry)
 * [Difference in the power of Police to register and investigate an FIR under Section 154(1) read with 157 of the Code, and the Magistrate’s direction to register an FIR under Section 156(3) of the Code. Power of the Magistrate to direct registration of an FIR under Section 156(3) in contrast with post-cognizance stage power under Section 202 of the Code](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#difference-in-the-power-of-police-to-register-and-investigate-an-fir-under-section-1541-read-with-157-of-the-code-and-the-magistrates-direction-to-register-an-fir-under-section-1563-of-the-code-power)
 * [Powers of magistrate while dealing complaint u/s 156(3) Cr.P.C](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#powers-of-magistrate-while-dealing-complaint-us-1563-crpc)
 * [s. 156(3) Cr.P.C: Accused do not have any right to appear before the magistrate before summons are issued](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#s-1563-crpc-accused-do-not-have-any-right-to-appear-before-the-magistrate-before-summons-are-issued)
 * [Magistrate has to decide by apply his judicial mind while dealing petition u/s 156(3) Cr.P.C](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#magistrate-has-to-decide-by-apply-his-judicial-mind-while-dealing-petition-us-1563-crpc)
 * [Party](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#party)
 * [Author’s note](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/#author8217s-note)

##### **Issue raised in the present appeal**

8. On the other hand, it is the case on behalf of the original complainant as well
as the State that as mandated by this Court in the case of Lalita Kumari (supra),
at the stage of registering the FIR, neither the Magistrate nor the police officer
has any jurisdiction to verify the truth and veracity of the allegations and/or 
consider the truthfulness of the allegations. According to the respondents, what
is required to be considered at that stage is, whether the allegations in the complaint/
application disclose commission of any cognizable offence or not. Therefore, the
main issue posed for the consideration of this Court is, whether in the facts and
circumstances of the case, the learned CJM was justified in verifying the truth 
and veracity of the allegations at the stage of deciding the application under Section
156(3) Cr.P.C. and whether at that stage the Magistrate is required to apply judicial
mind or not?

9. Article 21 of the Constitution protects lives and personal liberties of both 
the victim and those accused of having committed an offence. For this reason, the
procedure established by law should be construed in the manner that the text of 
the statute ensures right to seek investigation to redress injustice and uncover
crime by recourse to expeditious, fair and impartial procedure. Concomitantly, the
law in application should protect blameless against those informants who levels 
false allegations and abuse the law causing distress, humiliation and damage to 
reputation.

##### **Relevant legal provisions of chapter XII of the Cr.P.C, 1973**

10. The Code vide Chapter XII, ranging from Section 154 to Section 176, deals with
information to the Police and their power to investigate. Section 154 deals with
the information relating to the commission of a cognizable offence and fiats the
procedure to be adopted when prima facie commission of a cognizable offence is made
out. Section 156 authorises a police officer in-charge of a Police station to investigate
any cognizable offence without the order of a Magistrate. Sub-section (3) of Section
156 provides for any Magistrate empowered under Section 190 to order an investigation
as mentioned in Section 156(1). In cases where a cognizable offence is suspected
to have been committed, the officer in-charge of the Police station, after sending
a report to the Magistrate empowered to take cognizance of such offence, is entitled
under Section 157 to investigate the facts and circumstances of the case and also
to take steps for discovery and arrest of the offender. Clauses (a) and (b) of the
proviso to sub-section (1) to Section 157 give discretion to the officer in-charge
not to investigate a case, when information of such offence is given against any
person by name and the case is not of serious nature; or when it appears to the 
officer in-charge of the Police station that there is no sufficient ground for entering
the investigation. In each of the cases mentioned in clauses (a) and (b) to the 
proviso to sub-section (1) to Section 157, the officer in-charge of the Police station
has to file a report giving reasons for not complying with the requirements of sub-
section (1) and in a case covered by clause (b) to the proviso, also notify the 
informant that he will not investigate the case or cause it to be investigated. 
Section 159 gives power to a Magistrate, on receiving such report of the officer
in-charge, to either direct an investigation or if he thinks fit, proceed to hold
a preliminary inquiry himself or through a Magistrate subordinate to him, or otherwise
dispose of the case in the manner provided by the Code.

11. Sections 160 to 164 deal with the power of the Police to require attendance 
of witnesses, examination of witnesses, use of such statements in evidence, inducement
for recording statement and recording of statements. Section 165 deals with the 
power of a Police officer to conduct search during investigation in the circumstances
mentioned therein.

##### **How to investigate?**

12. The power under the Code to investigate generally consists of following steps:(
a) proceeding to the spot; (b) ascertainment of facts and circumstances of the case;(
c) discovery and arrest of the suspected offender; (d) collection of evidence relating
to commission of offence, which may consist of examination of various persons, including
the person accused, and reduction of the statement into writing if the officer thinks
fit; (e) the search of places of seizure of things considered necessary for investigation
and to be produced for trial; and (f) formation of opinion as to whether on the 
material collected there is a case to place the accused before the Magistrate for
trial and if so, taking the necessary steps by filing a chargesheet under Section
173.

13. Section 173 provides that the investigation is to be completed without unnecessary
delay and makes it obligatory on the officer in-charge of the Police station to 
send a report to the Magistrate concerned containing the necessary particulars in
the manner provided therein.

##### **Mandatory nature of section 154(1) of the Code**

14. The question, whether the Police is bound to register a First Information Report(
FIR) for a cognizable offence under Section 154 on receiving the information as 
such or has some latitude for conducting preliminary inquiry before registration
of FIR, had led to the decision of the Constitutional Bench in Lalita Kumari (supra).
In this case, one of the arguments raised was that when an innocent person is falsely
implicated, he suffers mental tension, loss of reputation and his personal liberty
is seriously impaired and, therefore, Section 154 of the Code should be read and
interpreted in conformity with the mandate of Article 21 of the Constitution. Harmonizing
the delicate balance to be maintained between the rights of the victim and the accused,
it was opined, there are sufficient safeguards provided in the Code itself to protect
liberty of an individual against registration of a false case. However, as Section
154 has been drafted keeping in mind the interest of the victim, and their right
to have access to fair and independent investigation, the mandatory registration
of FIRs under Section 154 will not contravene Article 21 of the Constitution. Drawing
on several earlier judgments and the language of Section 154 of the Code, it was
held that the Police is bound to proceed to conduct investigation, even without 
receiving information about commission of a cognizable offence if the officer in-
charge otherwise suspects the commission of such an offence. The legislative intent
is to ensure that no information of commission of a cognizable offence is ignored
and not acted upon, which would otherwise result in unjustified protection of the
alleged offender/accused. Every cognizable offence must be promptly investigated
in accordance with the law. This being the legal position, there is no reason that
there should be any discretion or option left with the Police to register or not
to register an FIR when information is given about commission of a cognizable offence.
This interpretation in a way keeps a check on the power of the Police, which is 
required to protect the liberty of individuals and society rights inherent in a 
democracy. It is the first step which provides access for justice to a victim and
upholds the rule of law, facilitates swift investigation and sometimes even prevents
commission of crime and checks manipulation in criminal cases.

##### **Police officer has power to foreclose the investigation**

16. Further there is a distinction between Section 154 and 157 as the latter provision
postulates a higher requirement than under Section 154 of the Code. Under Section
157(1) of the Code, a Police officer can foreclose the investigation if it appears
to him that there is no sufficient ground to investigate. The requirement of Section
157(1) for the Police officer to start investigation is that he has “reason to suspect
the commission of an offence”. Therefore, the Police officer is not liable to launch
investigation in every FIR which is mandatorily registered on receiving information
relating to commission of a cognizable offence. When the Police officer forecloses
investigation in terms of clauses (a) and (b) of the proviso to Section 157(1), 
he must submit a report to the Magistrate. Here, the Magistrate can direct the Police
to investigate, or if he thinks fit, hold an inquiry. Where a Police officer, in
a given case, proceeds to investigate the matter, then he files the final report
under Section 173 of the Code. The noticeable feature of the scheme is that the 
Magistrate is kept in the picture at all stages of investigation, but he is not 
authorised to interfere with the actual investigation or to direct the Police how
the investigation should be conducted.

##### **Powers of magistrate during investigation**

18. Referring to the distinction between the power of the Police to investigate 
and the judicial powers given to the Magistrate under Chapter XII of the Code, this
Court in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 has observed that although
the Magistrate may have certain supervisory powers, nevertheless, from these considerations
alone he cannot impinge upon the jurisdiction of the Police to investigate. The 
power of the Magistrate is conferred once a report in terms of Section 157 or a 
report under Section 173(3) is submitted by the Police before the Magistrate. Thus,
the Magistrate, who has little or no scope to interfere with the investigation, 
is not absolutely powerless in view of the powers conferred in terms of Sections
159 and 173, and infra, Section 202 of the Code.

##### **Magistrate must direct investigation u/s 156 (3) Cr.P.C and may also direct for preliminary enquiry**

22. One would grant that the jurisdiction of the Court when asked to invoke power
under Section 156(3) is wider as held in Priyanka Srivastava (supra), yet there 
are limits within which the Magistrate must act. When the Magistrate is satisfied
that the allegations made disclose commission of a cognizable offence, he must stay
his hands, direct registration of an FIR and leave it to the investigative agency
to unearth the facts and ascertain the truth of the allegations. Magistrate in terms
of the ratio in Lalita Kumari (supra) can for good reasons direct preliminary enquiry.
We would now refer to the power of the Magistrate to take cognizance, postpone issue
of process and follow the procedure under Section 202 of the Code.

##### Difference in the power of Police to register and investigate an FIR under Section 154(1) read with 157 of the Code, and the Magistrate’s direction to register an FIR under Section 156(3) of the Code. Power of the Magistrate to direct registration of an FIR under Section 156(3) in contrast with post-cognizance stage power under Section 202 of the Code

24. The power of Magistrate to direct investigation falls under two limbs of the
Code: one is pre-cognizance stage under Section 156(3), and another on cognizance
under Chapter XIV (‘Conditions Requisite for Initiation of Proceedings’; Sections
190-199) read with Chapter XV (‘Complaints to Magistrates’; Sections 200-210). These
two powers are different and there also lies a procedural distinction between the
two.

Explaining the nature of cases to be dealt with under Section 202 of the Code, the
judgment observes, are those cases where the material available is not clear to 
proceed further. The Magistrate, though in seisin of the matter having taken cognizance,
has to decide whether there is any ground to proceed further. Further, Section 202
not only refers to an inquiry but also to an investigation. Thus, in such cases,
the Police cannot on its own exercise the power of arrest in course of making its
report in pursuance of the direction under Section 202 of the Code.

##### Powers of magistrate while dealing complaint u/s 156(3) Cr.P.C

36. The State of West Bengal has drawn our attention to the judgment of this Court
in Gopal Das Sindhi and Others v. State of Assam and Another, AIR 1961 SC 986 to
the effect that even when a private complaint is filed, the Magistrate is not bound
to take cognizance under Section 190 as the word used therein is ‘may’, which should
not be construed as ‘must’ for obvious reasons. The Magistrate may well exercise
discretion in sending such complaint under Section 156(3) to the police for investigation.
However, when a Magistrate chooses not to proceed under Section 156(3), he cannot
simply dismiss the complaint if he finds that resorting to Section 156(3) is not
advisable. Reference in this regard can also be made to Suresh Chand Jain v. State
of M.P. and another, (2001) 2 SCC 628 which distinguishes between the power of the
police to investigate under Section 156, the direction of the Magistrate for investigation
under Section 156(3) and post-summoning inquiry and investigation after cognizance
under Section 190 and Section 202 of the Code. When a Magistrate orders investigation
under Section 156(3), he does so before cognizance of the offence. If he takes cognizance,
he needs to follow the procedure envisaged in Chapter XV (see Afaq Jahan (supra).

The decision in Mona Panwar v. High Court of Judicature of Allahabad through its
Registrar and Others, (2011) 3 SCC 496 is rather succinct. This 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. 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.

##### **s. 156(3) Cr.P.C: Accused do not have any right to appear before the magistrate before summons are issued**

39. We would refrain and not comment on the allegations made as this may affect 
the case put up by either side. The accused do not have any right to appear before
the Magistrate before summons are issued. However, the law gives them a right to
appear before the revisionary court in proceedings, when the complainant challenges
the order rejecting an application under Section 156(3) of the Code. The appellants,
therefore, had appeared before the High Court and contested the proceedings. They
have filed several papers and documents before the High Court and this Court. To
be fair to them, the copies of the papers and documents filed before the High Court
and this Court would also be forwarded and kept on record of the Magistrate who 
would, thereupon, examine and consider the matter. However, the complainant/informant
would be entitled to question the genuineness and the contents of the said documents.

##### **Magistrate has to decide by apply his judicial mind while dealing petition u/s 156(3) Cr.P.C**

40. In view of the above and for the reasons stated above, while affirming the impugned
judgment and order passed by the High Court remanding the matter back to the learned
Magistrate, we set aside the subsequent order passed by the Magistrate on remand,
pursuant to the impugned judgment and order passed by the High Court and remit the
matter back to the learned Magistrate to examine and apply his judicial mind and
then exercise discretion whether or not to issue directions under section 156(3)
or whether he can take cognizance and follow the procedure under section 202. He
can also direct the preliminary enquiry by the police in terms of the law laid down
by this Court in the case of Lalita Kumari (supra). Copies of the papers and documents
filed before the High Court and this Court could also be forwarded and brought on
record of the Magistrate, who would thereupon examine and consider the matter. As
observed hereinabove, the complainant/informant would be entitled to question the
genuineness of the contents of the said documents.

##### **Party**

**Kailash Vijayvargiya vs. Rajlakshmi Chaudhuri and others – CRIMINAL APPEAL NO.
1581 OF 2021 – MAY 04, 2023**

[**https://main.sci.gov.in/supremecourt/2021/24402/24402_2021_4_1504_44215_Judgement_04-May-2023.pdf**](https://main.sci.gov.in/supremecourt/2021/24402/24402_2021_4_1504_44215_Judgement_04-May-2023.pdf)

**[Kailash-Vijayvargiya-vs.-Rajlakshmi-Chaudhuri-and-others-May-10](http://localhost:8080/section1/wp-content/uploads/2023/05/Kailash-Vijayvargiya-vs.-Rajlakshmi-Chaudhuri-and-others-May-10-1.pdf)**

##### **Author’s note**

Readers kindly do not compare **[Vinubhai Haribhai Malaviya & Ors vs. State of Gujarat & Anr, Criminal Appeal No. 478-479/ 2017](http://localhost:8080/section1/further-investigation-by-magistrate-u-1563-till-framing-of-charges/)**
with this judgment inasmuch as in Vinubhai Haribhai Malaviya & ors (supra) the Hon’ble
Supreme court has held as follows:

> “There is no good reason given by the Court in these decisions as to why a Magistrate’s
> powers to order further investigation would suddenly cease upon process being 
> issued, and an accused appearing before the Magistrate, while concomitantly, the
> power of the police to further investigate the offence continues right till the
> stage the trial commences.”

The above sentence clarifies the power of the Magistrate to direct “Further Investigation”
u/s 156(3) Cr.P.C after filing the “Charge Sheet” [i.e Final Report u/s 173(2)].

But, in the present case, the Hon’ble Supreme Court has held as follows:

> “However, once the Magistrate has taken cognizance under Section 190 of the Code,
> he cannot ask for an investigation by the Police. 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”.

It is evident in the above sentence that the Hon’ble Supreme Court is dealing with
section 156(3) Cr.P.C powers after taking cognizance on the complaint (private complaint).
Because there is another power that awaits the Magistrate to direct investigation
to the police.

Hence, **[Vinubhai Haribhai Malaviya & Ors vs. State of Gujarat case (3 judge bench – supra)](http://localhost:8080/section1/further-investigation-by-magistrate-u-1563-till-framing-of-charges/)**
shall not be applicable to the present case.

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