Question: What is the procedure for filing an application under Section 156(3) of Criminal Procedure Code before the Magistrate to direct the police to conduct investigation in an offence under Section 420 IPC (Cheating case)?
Answer: The offence of cheating under Section 420 IPC is a cognizable offence. Therefore, the police has the power to directly register the FIR under Section 154 Cr.P.C. without orders of the magistrate. In view of this, you should first approach the concerned police station with your complaint under Section 420 IPC. However, if the police station refuses to register the FIR, then you may also approach the Superintendent of Police of the district requesting him to direct an investigation under the provisions of Section 154(3) Cr.P.C., as shown below:
“(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.”
However, if you do not receive any satisfactory action even after complaining to the Superintendent of Police, then you can file an application to the Magistrate having jurisdiction under Section 156(3) of the Cr.P.C., which is reproduced below:
“156. Police officer’s power to investigate cognizable case.— (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.”
As laid down in Section 156(3) of Criminal Procedure Code, the Magistrate has the power to order an investigation by the officer in charge of the police station.
It is germane to point out that in the recent case of Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 : 2015 Cri LJ 2396 : AIR 2015 SC 1758, the Supreme Court held as under:
“…there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed.”
In this regard, it is pertinent to point out that in the case of Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627, the Supreme Court held as under:
“The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”
Likewise, in the case of Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : AIR 2008 SC 907, the Supreme Court observed that:
“…if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.”
In a recent case of Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439, the Supreme Court observed thus:
“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.”
In the aforesaid case of Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 : 2015 Cri LJ 2396 : AIR 2015 SC 1758, the Supreme Court held as under:
“The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised.”
“…it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.”
“…power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.”
“… a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.”
“…there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”
The extracts from the above judgments should make it clear as to what are the requirements / procedure of filing of an application under Section 156(3) of Cr.P.C. before the Magistrate seeking to direct investigation by police.
