Can Magistrate recall his order under S. 156(3) Cr.P.C. for investigation?

Can Magistrate recall his order under S. 156(3) Cr.P.C. for investigation?

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Question: Does the Magistrate have the power to recall his order issued earlier under Section 156(3) of the Criminal Procedure Code directing police to investigate an offence?

Answer: The Magistrate does not have the power to recall the order earlier issued by him under Section 156(3) of the Criminal Procedure Code directing the police to investigate an offence.

In this regard, it is pertinent to point out that in the case of Dharmeshbhai Vasudevbhai v. State of Gujarat, (2009) 6 SCC 576 : 2009 Cri LJ 2969, the Supreme Court held that the Magistrate does not have power to recall an order issued by him under Section 156(3) Cr.P.C., and it observed as under:

“When an order is passed under sub-section (3) of Section 156 of the Code, an investigation must be carried out. Only when the investigating officer arrives at a finding that the alleged offence has not been committed by the accused, he may submit a final form; on the other hand, upon investigation if it is found that a prima facie case has been made out, a charge-sheet must be filed.

Interference in the exercise of the statutory power of investigation by the police by the Magistrate far less direction for withdrawal of any investigation which is sought to be carried out is not envisaged under the Code of Criminal Procedure. The Magistrate’s power in this regard is limited. Even otherwise, he does not have any inherent power. Ordinarily, he has no power to recall his order.”

In the case of S.N. Sharma v. Bipen Kumar Tiwari, (1970) 1 SCC 653, the Supreme Court has held as under:

“It may also be further noticed that, even in sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190, is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate.”

From the above judgments, it should be clear that the Magistrate cannot recall his order under Section 156(3) Cr.P.C.

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