Question: I had filed a private complaint in the court of Magistrate under Section 190 / 200 of the Criminal Procedure Code (Cr.P.C.) for an offence of cheating under Section 420 IPC. However, instead of taking cognizance of the offence alleged in the above private complaint, the Magistrate directed the police under Section 156(3) of the Cr.P.C. for investigation and report within a period of 3 months? I did not make a request for such investigation by police while filing such private complaint (since I doubt police involvement with accused persons). Can a Magistrate direct investigation under Section 156(3) Cr.P.C. even where a private complaint is filed under Section 190, 200 of the Cr.P.C.?
Answer: Yes, it is possible for the Magistrate to give direction to the police under Section 156(3) of the Cr.P.C. to conduct investigation and report, even if the complaint was filed under Section 190 / 200 of the Cr.P.C. before such Magistrate.
Recently, in the case of Madhao v. State of Maharashtra, (2013) 5 SCC 615, the Supreme Court held that any Judicial Magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code, and that if he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.
The Supreme Court further held as under:
“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 pre-cognizance stage and avail of Section 156(3).”
The Supreme Court further held that where a Magistrate orders investigation by the police under Section 156(3) of the Code before taking cognizance and receives the report of the police thereupon, he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code.